by Christopher Zoukis

Incarceration in a state or federal prison is bad. Incarceration in a state or federal prison while disabled is much worse.

Consider the numbers. According to a recent Vice.com article, 31 percent of prisoners in state facilities reported having a physical or mental disability. And as the U.S. prison population ages, the number of disabled prisoners is expected to increase significantly.

By almost all accounts, life in prison for a disabled person is immeasurably more difficult than for the non-disabled. Given the existence of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq; section 504 of the Rehabilitation Act (RA), 29 U.S.C. § 794(a) and the Eighth Amendment, this should not be the case.

The ADA requires that “reasonable accommodations” be made for disabled persons, and the U.S. Supreme Court established in 1998 that the ADA applies to state prisoners. The RA applies to both state and federal prisoners. In United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877 (2006) [PLN, Mar. 2006, p.14], the Supreme Court held that prisoners may sue a state for monetary damages under the ADA, as Title II of the ADA abrogates state sovereign immunity.

The ADA defines “disability” as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. “Major life activities” include but are not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. 42 U.S.C. § 12102(1).

The U.S. Department of Justice has created a Disability Rights Section in its Civil Rights Division, charged with monitoring and addressing ADA violations in, among other places, correctional facilities. The Disability Rights Section investigates thousands of complaints annually; according to John Wodatch, who headed the section from 1995 until 2011, almost all complaints have been substantiated.

“Every complaint we got from those people were legitimate complaints,” he said. “It was a litany of discrimination against people with disabilities.”

Violating the ADA is illegal, and thousands of complaints and lawsuits are filed by prisoners each year due to such violations. Some see the cost of ADA compliance as being too high for correctional facilities. Others, like Jamelia Morgan, a fellow with the ACLU’s National Prison Project, worry that apathy among prison administrators can lead to ADA violations.

Progress has been made, but the election of President Trump and the appointment of Attorney General Jeff Sessions may portend a step backward.

“I worry that if we return to command-and-control corrections that we’ll forget about the harms these systems inflict on these human beings,” said Morgan. “I’d assume that people with disabilities will slip through the cracks.”

Fortunately for disabled prisoners, there are organizations willing to advocate on their behalf. Each state has a Protection and Advocacy (P&A) agency that is granted federal authority to enter facilities that serve disabled people – including prisons and jails – in order to identify and address problem areas. The Amplifying Voices of Inmates with Disabilities (AVID) Prison Project tracks various P&A activities and provides reports and recommendations related to the treatment of disabled prisoners.

Recent reports by AVID, released in June and September 2016, found egregious violations of the ADA and the Eighth Amendment, as well as common decency, in American prisons. [See: PLN, June 2017, p.26]. Disabled prisoners are routinely punished for violating rules they cannot follow due to their disabilities. They are held in solitary confinement for years, sometimes decades, as a result of being disabled. Required accommodations such as accessible showers and toilets are in short supply, as is the ability of disabled prisoners to participate in work and educational programs.

P&As and their partners have long pursued litigation over these and other ADA violations. Settlements over the treatment of prisoners who are deaf, blind, mentally ill, HIV-positive or otherwise disabled – many of which were reported in PLN – have been reached in at least 14 states. Those settlements have, in some cases, ended the practice of using solitary confinement to manage mentally ill prisoners. They have also forced state Departments of Corrections to better train staff, to provide appropriate medical care to the disabled and to accept oversight in order to ensure compliance with federal law.

In some cases, it has taken a lawsuit to ensure that disabled prisoners have access to a shower. One could be forgiven for questioning why it takes years of federal litigation to ensure that a disabled prisoner can shower. The answer is that humanity is often in short supply within our nation’s penal system. In other cases, corrections officials have confiscated prisoners’ wheelchairs, canes, orthopedic shoes and even prosthetic limbs. [See: PLN, May 2010, p.33]. Thus, it is crucial that P&As and other advocacy groups continue to fight for the human rights of disabled prisoners.

“Additional forms of punishment are exacted upon inmates with disabilities across the country on a daily basis solely by virtue of their disability,” noted Rachael Seevers, a staff attorney with Disability Rights Washington.

“There’s an old saying that prisoners are sent to prison ‘as a punishment, not for punishment,’” added federal criminal defense and civil rights attorney (and former PLN contributing writer) Brandon Sample. “But when it comes to prisoners with disabilities, prison officials – at both the state and federal levels – are known for their cruel indifference.”

The AVID Prison Project has made recommendations that would greatly improve the treatment of disabled persons in both state and federal prisons. For example, AVID recommends increased monitoring of prisons by state officials as well as the U.S. Department of Justice. It also recommends the development of better relationships between corrections officials and P&A agencies. Finally, AVID urges the creation of a “Corrections Ombudsman Program,” which would provide oversight outside of the prison administrative context.

There is little doubt that improvements to the way prison officials treat prisoners with disabilities are sorely needed. The current state of affairs for disabled prisoners makes it clear that the mere existence of the ADA, RA and constitutional requirements are not enough to protect these vulnerable individuals.

Commenting on a settlement between the Southern Poverty Law Center and the Alabama Department of Corrections in an ADA lawsuit, attorney Maria Moriss highlighted the need for further reforms.

“Prisoners with disabilities must have an opportunity to serve the sentence they received – not the sentence they must endure because the state fails to respect their legal rights,” she said. 

Sources: https://news.vice.com, www.splcenter.org, http://avidprisonproject.org, www.aclu.org, www.legalzoom.com, www.americanprogress.org, personal interview with attorney Brandon Sample

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