Russell Hebets July 20, 2016

On July 26 the Americans with Disabilities Act turns 26 years old. This civil rights act not only barred discrimination against those with disabilities but advanced services, accommodations and access across all public agencies.

Are Prisons Complying with the ADA?

A new report indicates that these advances are not being provided to inmates with disabilities and that those with disabilities tend to be overrepresented in prison populations. This high level of incarceration is largely due to over-policing of minor crimes like homelessness, loitering, panhandling, and other crimes of poverty as well as the reduction of mental health facilities. While, in general, deinstitutionalization is a good thing, it is not enough by itself. In order to reduce prison populations, better social programs have to be put in place to benefit those with disabilities. To date, these programs have not met the needs of the disabled population.

The Issues

Prisoners (federal and state level facilities) are three times more likely to report having a disability and reports from jail (county or municipal facilities) are higher at four times more likely. These tend to be cognitive disabilities like autism, Down syndrome, dementia, and intellectual or learning disabilities. This is an often unreported and underexposed aspect of criminal justice and the results are expensive and devastating.

Prisons or jails are unlikely to provide the services required by one with a disability. Medical care and accommodations are limited if they exist at all, despite the laws that dictate access and support services for those who need them. The lack of care often exacerbates the person’s situation. Worse yet, those with disabilities are often confined to solitary for “their own protection”, however, solitary is tremendously stressful and leads to long term mental health distress, even for those without disabilities.

A prison or jail sentence can add to the burdens that those with disabilities already face. It is hard enough to find employment and stable housing without a criminal record, and infinitely more difficult with one. Additionally, re-entry programs or diversion programs often cannot provide needed accommodations, making them less useful to all involved.

Olmstead v. L.C.

Olmstead v. LC was a 1999 Supreme Court ruling that furthered aspects of the ADA by requiring a reasonable modification for those with disabilities and an emphasis on community based and treatment based options rather than incarceration or institutionalization, where possible. This ruling emphasized the “integration mandate” of the ADA, meaning public agencies must provide for the needs of those with disabilities as well as find resolutions that are as community integrated as possible. Olmstead reinforced the ADA by declaring that segregating disabled individuals into institutions was a violation of the American with Disabilities Act (ADA) of 1990.

What is Prison Like with a Disability?

Another cruel aspect of having disabilities while jailed is that administrators or other authorities in the prison may punish individuals by depriving them of care. One story tells of a man who had his walker taken away for making too many complaints about jail conditions. Without a walker he could not readily get around and missed his insulin shots. Finally a doctor had to re-prescribe his walker so he could get to the insulin he needed. Other stories detail how prisoners without needed equipment find themselves crawling on the ground to move about; or how deaf inmates may not be accommodated so they lose their ability to make phone calls or communicate with staff, further undermining their rights.

To add insult to injury, even when doctors approve a wheelchair for an inmate, the guards may judge the situation differently. Yet another harrowing story tells of a prisoner who was dumped out of his wheelchair by guards for refusing to give it up. They felt one of his legs worked well enough to relinquish the chair. The inmate knew reintegration into the general, more able-bodied population would put him at great risk, but the guards didn’t see it that way. They felt he was only claiming to be disabled to stay housed in the less violent ward.

While these stories are anecdotal, they highlight a significant concern in the prison system. The jailers have near absolute power, and as the saying goes, absolute power corrupts absolutely.

How Do We Better Enforce the ADA?

Like with much of the discussion around criminal justice reform, it is increasingly clear that alternatives like special community placement, or rehabilitative therapies are not only a more effective way to address excessive incarceration, but significantly cheaper, too. There is also a need to address the privatization of institutions and how to better gain compliance from these corporations. But in the case of those with disabilities it will take an even wider scale approach to addressing the spectrum of issues, from the way the system deals with crimes of poverty in the first place, to the kind of treatment and options they provide in conjunction with sectors outside of criminal justice. These systemic reforms are needed to see a real change in how we treat people with disabilities caught up in the system.