The language of Title II of the Americans with Disabilities Act (ADA) is succinct: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

In Pennsylvania DOC v. Yeskey, 524 U.S. 206 (1998) [PLN, Sept. 1998, p.1], the Supreme Court held that the ADA applies to people in prison. Title II of the ADA defines “public entity” to include “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B). In Yeskey, Justice Scalia wrote, “The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.” Thus, Title II of the ADA extends to prisoners.

DOJ Investigates Pennsylvania Prison

On May 31, 2013, the U.S. Department of Justice (DOJ) issued a findings letter that detailed the results of an investigation into the use of solitary confinement on prisoners with serious mental illnesses at the State Correctional Institution at Cresson in Cambria County, Pennsylvania. The Justice Department found that Cresson’s use of long-term and other forms of solitary confinement on prisoners with serious forms of mental illness, a number of whom also experience intellectual disabilities, violates their rights under the ADA as well as the Eighth Amendment. The investigation determined that Cresson consistently locked prisoners with serious mental illnesses in their cells for 22-23 hours a day for months or years, denied them basic necessities, and subjected them to harsh and punitive conditions including excessive use of force.

The DOJ concluded that Cresson’s misuse of solitary confinement on prisoners with serious mental illnesses led to serious harms that included mental decompensation, clinical depression, self-mutilation, psychosis and suicide.

Cresson was also found to rely on solitary confinement as a means of warehousing prisoners with serious mental illnesses due to deficiencies related to the prison’s mental health services. Such systemic deficiencies included a fragmented and disorganized mental health program, marginalization of mental health staff members, disciplinary procedures that resulted in punishment of disability-related behaviors and placement of psychotic prisoners in solitary confinement. Further, Cresson’s oversight system did not analyze suicides or other crucial information.

Roy Austin, Deputy Assistant Attorney General for the DOJ’s Civil Rights Division, stated, “We found that Cresson often permitted its prisoners with serious mental illness or intellectual disabilities to simply languish, decompensate, and harm themselves in solitary confinement for months or years on end under harsh conditions in violation of the Constitution. These practices have serious public safety consequences because many of these individuals are [eventually] returned to the community.”

The Justice Department began its investigation in December 2011 under the Civil Rights of Institutionalized Persons Act (CRIPA), which prohibits a practice or pattern of deprivation of constitutional rights of individuals who are confined in state or local government-run correctional facilities. The investigation also involved findings under the ADA and provided information to the department that justified an expanded inquiry under both CRIPA and the ADA.

The Supreme Court and Tennessee v. Lane

Following the Supreme Court’s decision in Tennessee v. Lane, 541 U.S. 509 (2004) [PLN, Sept. 2004, p.26], the court system was forced to examine the application of Title II of the ADA to prisoners with disabilities who face discrimination in state-run prisons. Title II regulates public services by requiring reasonable modifications be made for people with disabilities, and permits private lawsuits seeking monetary damages to be brought against states not in compliance with the ADA. Title II also provides recourse for state and local prisoners with disabilities (the ADA does not apply to federal executive branch agencies, including the Bureau of Prisons, but section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), applies to such agencies).

In Tennessee v. Lane, the Supreme Court’s holding was limited to the application of Title II to cases that implicated “the fundamental right of access to the courts,” which it considered a valid exercise of the Fourteenth Amendment’s section 5 enforcement power. Section 5 gives Congress the authority to enforce the amendment through appropriate legislation. The Supreme Court also held that a state’s Eleventh Amendment immunity from suits involving monetary damages brought by citizens in federal court could be abrogated by section 5. That holding was based upon Congress’ constitutional authority to provide access to the courts under the Fourteenth Amendment’s due process clause. The Court declined to consider application of Title II beyond access to the courts, which was the issue raised in Tennessee v. Lane.

The ADA and Discrimination

The ADA broadly defines the term “disability” to cover people faced with a number of different forms of discrimination. Generally, the ADA bars public entities from denying services to people with disabilities or failing to provide services such as those offered to others who are not disabled. Each of the ADA’s five titles targets specific areas in which people with disabilities face discrimination.

Title II of the ADA is the one under which a prisoner would file suit to address discrimination against a qualified individual with a disability by a public entity. Title II, as applied to discrimination against prisoners with disabilities, has been a congruent and proportional response to actual and threatened constitutional violations. The Supreme Court’s holding in Tennessee v. Lane that Title II is unquestionably valid, “as it applies to the class of cases implicating the accessibility of judicial services,” was profound. It demonstrated that prisons must be accessible for prisoners with disabilities.

Title II of the ADA provides that state and local governments:

• May provide special benefits, beyond those required by the regulation, to individuals with disabilities.

• May not refuse to allow a person with a disability to participate in a service, program or activity simply because the person has a disability.

• Must provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.

• Shall operate their programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities.

• Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.

• Are required to make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration in the program would result.

• Must eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy services, programs or activities unless “necessary” for the provisions of the service, program or activity.

• May not place special charges on individuals with disabilities to cover the costs of measures necessary to ensure nondiscriminatory treatment, such as making modifications required to provide program accessibility or providing qualified interpreters.

The question then becomes one of who is considered to be a “qualified individual with a disability” under Title II, as far as prisoners are concerned. Pursuant to the ADA, an “individual with a disability” is a person who: 1) has a physical or mental impairment that substantially limits a “major life activity,” 2) has a record of such an impairment, or 3) is regarded as having such an impairment.

What constitutes a “major life activity”? A major life activity includes functions such as performing manual tasks, walking, seeing, speaking, hearing, learning, breathing, working or caring for oneself. A “qualified” individual with a disability is a person who meets the essential eligibility requirements for a program or activity offered by a public entity, irrespective of their disability.

State and local governments are required to ensure that prisoners with disabilities are not excluded from services, programs and activities because prison buildings are not accessible. They are not required to remove physical barriers such as stairs in all existing buildings so long as they make programs and services accessible to prisoners who are unable to use an inaccessible existing facility. State and local governments can provide services, programs and activities to prisoners with disabilities through alternative means or methods if physical barriers are not removed.

State and local governments are not required to take any actions that would result in fundamental alterations in the nature of services, programs or activities, or in undue financial or administrative burdens. Public entities must, however, take other available actions that would not result in a fundamental alteration or undue burden but would ensure that prisoners with disabilities receive access to services, programs or activities.

While compensatory damages are available in ADA suits, the Supreme Court has held that punitive damages may not be awarded for violations of the ADA and Rehabilitation Act, overturning a $1.2 million punitive damages award in favor of a wheelchair-bound arrestee who was injured while being transported to a police station. See: Barnes v. Gorman, 536 U.S. 181 (2002) [PLN, Oct. 2002, p.12].

Private Prisons and the ADA

Prisoners held in facilities operated by the government have been able to file lawsuits under the ADA arguing that they were discriminated against based on their disabilities in terms of participation in programs provided by a public entity. However, at least one federal appeals court has held that due to the explicit language of the ADA, it does not apply to privately-operated prisons. That case, Edison v. Douberly, 604 F.3d 1307 (11th Cir. 2010), rehearing denied, involved a legally blind Florida prisoner held in a privately-operated facility who sued three employees of the company, seeking relief and damages for disability discrimination under Title II of the ADA.

The Eleventh Circuit held the private prison corporation was not a public entity merely because it had entered into a contract with a public entity to provide services. An instrumentality of the state is a government unit or unit created by a government unit; as such, no Title II ADA claim was applicable. Relevant decisions by other courts have supported the same conclusion: the ADA does not apply to private prisons.

However, the Jailhouse Lawyer’s Manual, published by Columbia Law School, suggests that private prisons can still be sued under the ADA based on DOJ regulations that state Title II extends “to prisons operated by public entities directly or through contractual or other relationships.” 28 CFR 35.152(a). Alternatively, private prisons could be sued under Title III of the ADA to the extent that they provide “public accommodations” (although only injunctive relief is available under Title III, not monetary damages).

Conclusion

There is currently much discussion about ratifying the Convention on the Rights of Persons with Disabilities, an international convention to which the U.S. is a signatory. One has to wonder what ratification of this Convention would mean for prisoners in America. Article 13 of the Convention says that States Parties “shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.”

Article 13 also states that in order to help ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. Until the Convention is ratified and enforced, however, the ADA remains the primary means by which prisoners with disabilities can address discriminatory treatment.

Justice Scalia observed in Yeskey that the ADA has breadth, and the Department of Justice apparently agrees. The ADA was designed to remedy the serious and pervasive disability-based discrimination that exists throughout society as documented by Congress when the ADA was enacted. It was intended to ensure equal protection of the rights of all persons with disabilities, including prisoners according to the Supreme Court, and to relegate the existence of a disability to a non-issue.

The Fourteenth Amendment reads, in part, “No State [can] deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment, in conjunction with the ADA, ensures that prisoners with disabilities have the means with which to protect their rights.


Thomas Weiss is a 40% rated veteran with disabilities. He graduated with a Masters in Systems Theory/Design and Organizational Psychology in 2003. For more than 24 years, he provided hands-on care for people with a variety of forms of disabilities as a Certified Nursing Assistant. Since 2008 he has been writing for www.disabled-world.com, where a shorter version of this article was first published.