By Tate McCotter, NIJO Executive Director
In recent years NIJO has seen an increase of lawsuits and allegations revolving around incarcerated individuals with disabilities. There are a number of reasons for these increases, but certainly the aging population and litigious mentality that exists in jails and detention facilities are contributors. For example, the Bureau of Justice Statistics recorded that 32% of prisoners and 40% of jail inmates reported having at least one disability. 1 While those figures are debateable, given the source, it is clear this is an issue that will be brought up repeatedly and administrators need to be prepared.
Within the last year, inmate advocacy groups such as the Disability Rights California (DRC), Southern Poverty Law Center, and the ACLU have all participated in filing and co-counseling numerous inmate-filed lawsuits centered around disabilities. Some have sought class action certification arguing that administrations must take action to serve all inmates in the disabled community.2
On August 31, 2017, the 9th Circuit Court of Appeals ruled that a suit could proceed against Multnomah County’s Detention Center, alleging the jail discriminated against a deaf inmate by failing to provide an American Sign Language (ASL) interpreter during pre-trial. The Court made it clear they were not deciding on the entitlement of an intepreter as a matter of course, but rather that “upon notice of the need for an accommodation, a public entity must investigate what constitutes a reasonable accommodation.” They also explained after not differing to the individual’s request, the burden was on the jail to demonstrate that “another effective means of communication existed or that the requested auxiliary aid was otherwise not required.”3
“[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination.”4
There is a balance that must be met between safety and security and managing a disabled population group. Though allegations claim jails may be deliberately indifferent to those with disabilities, it is often the physical facility, lack of policy and procedure, staff training and other factors that determine an administration’s success in the courtroom. Unfortunately, some jails are in difficult circumstances, not having the resources to make reasonable ADA accommodations due to lack of staffing, budget or an aging, outdated facility.
The following information may serve useful in preparing a facility in their efforts to assist staff and county officials in developing a working understanding of the intent of the ADA.
- Two major statutes exist to protect the rights of disabled prisoners: Section 504 of the Rehabilitation Act of 19735, and the Americans with Disabilities Act (ADA)6. In context of correctional facilities, the Rehabilitation Act applies to facilities run by federal agencies (such as the Bureau of Prisons), and may apply to state or local agencies that receives federal funding, depending on the source of that funding.7 Passed by Congress in 1990, the ADA regulates facilities run by state and local agencies, regardless of whether they receive federal funding. The Supreme Court has ruled that prisons and jails must comply with the requirements of ADA.8 In 2008, Congress passed the ADA Amendments Act of 2008. The intent of the ADA Amendments Act of 2008 was a response to court decisions that narrowly interpreted the original text of the ADA. Under that Amendment, the courts were required to focus on whether entities subject to the ADA have met their obligations to disabled people, rather than extensively analyzing whether a particular impairment is a disability.9 It is a stated purpose of ADA to:
- “[P]rovide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
- “[P]rovide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
- “[E]nsure that the Federal Government plays a central role in enforcing the [ADA] standards . . . on behalf of individuals with disabilities; and
- “[I]nvoke the sweep of congressional authority . . . in order to address the major areas of discrimination faced day to day by people with disabilities.”10
- Policies and procedures should provide reasonable accommodation and access for persons who have a physical or mental impairment that substantially limits one or more of the major life activities. The term “disabilities” should be defined as well as “major life activities.”11 This will provide groundwork for policies and answering inmate requests for ADA accommodations.
- Officials are also allowed to discriminate if the disabled inmates’ participation would pose “significant health and safety risks” or a “direct threat” to others.12 Officials can discriminate against disabled prisoners as long as the discriminatory policies serve “legitimate penological interests.”13
- Staff should be trained and provided notice they are prohibited from discriminating on the basis of the person’s disability (see above). Consider communication and other interactions between staff and inmates with disabilities.
- All services, programs and activities provided in the jails are subject to ADA requirements. Solutions that do not cost considerable money may be easily accessible, such as providing closed captioning when the TV is on, or providing a pen and paper to facilitate communication with a deaf inmate who can write. Others may require more effort and money, including a TTY (Text Telephone device), video relay services, securing an ASL intepreter, installing shower or toilet rails, or modifications for wheelchair accessibility. Disabled prisoners have challenged inadequate medical care and prison officials’ failure to provide them with medical supplies or devices such as wheelchairs or canes.14 These cases may combine ADA claims with arguments that prison officials have violated the Eighth Amendment of the U.S. Constitution by being deliberately indifferent to prisoners’ serious medical needs.
- Officials are not required to provide accommodations that impose “undue financial and administrative burdens” or require “a fundamental alteration in the nature of [the] program.”15 If the facility has physical limitations that require funds to meet reasonable ADA requests, the administration should request that funding. Understanding that not all requests are met by those that fund the jail, administrations should document all efforts to be compliant and all efforts to secure funding to meet those requests. No, this won’t eliminate a lawsuit from potentially being filed, but it does show that at least the jail administration was not acting deliberately indifferent.
- Jennifer Bronson, Ph.D., Laura M. Maruschak, Bureau of Justice Statistics, Marcus Berzofsky, Dr.P.H., RTI
- See Murray v Santa Barbara County Sheriff’s Office. 2:17-cv-08805
- Updike v. Multnomah Cty., 2017 U.S. App. LEXIS 16761 (9th Cir. Or. Aug. 31, 2017)
- 42 USC §12131[Section 2](a)(1).
- 29 U.S.C. § 794(a)
- See Title II, 42 U.S.C. § 12131, et seq.
- Agencies that receive funding from the U.S. Department of Justice must comply with the Department of Justice’s regulations, which are located at 28 C.F.R. § 42.501 et seq.
- Pennsylvania Dept. of Corrections v. Yeskey 524 U.S. 206, 210 (1998) (“State prisons fall squarely within the statutory definition of ‘public entity,’ which includes ‘any department, agency, special purpose district, or other
instrumentality of a State or States or local government.’ § 12131(1)(B).”).
- ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, § 2(b) (2008).
- 42 USC § 12101(b)(1-4).
- See Legal-Based Jail Guideline 01.02.02 Disabilities Covered.
- School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987) (holding that a person who poses a significant risk to others is not “otherwise qualified” for the activity, establishing a four-part test for determining whether contagious disease constitutes such a risk); 42 U.S.C. § 12182(b)(3).
- Gates v. Rowland, 39 F.3d 1439, 1446-47 (9th Cir.1994) (upholding discriminatory policy on security grounds based on unsubstantiated fears of other prisoners); cf. Yeskey v. Penn. Dep’t of Corrections, 118 F.3d 168, 174-75 (3rd Cir. 1997) (holding that prison management decisions that may violate a state prisoner’s rights are subject to a “reasonableness” test).
- See, e.g., Kaufman, 952 F.Supp. 520.
- Southeastern Community College, 442 U.S. at 406.