Disabled Prisoners and Reasonable Accommodations
Robert B. Greifinger
Criminal Justice Ethicsimg_0959
In 1990, the United States Congress passed the Americans with Disabilities Act (1) (ADA)–an optimistic measure intended to provide equal opportunity in employment and public life to individuals living with physical and mental disabilities. Title II of the ADA guarantees disabled persons equal access to state services and programs, an assurance that the rights these programs fulfill will be protected. (2) Title III mandates “reasonable accommodation” to the needs of the disabled in public facilities. (3) The federal statute includes both a prohibition against discrimination against disabled persons and a provision for redress. Legislators recognized that without the prospect of “effective enforcement provisions,” the states would be unlikely to move into compliance with the new legislation. It is now well understood that the United States population of disabled persons was significantly underestimated at the time the legislation was approved. (4) And it can be taken .for granted that the sponsors and supporters of the ADA were not thinking about the disabled among the population of those in prisons and jails, that population now more than two million. (5)

Prisoners are almost wholly dependent on the physical conditions and services of their facilities. It is this dependency–the absence of any alternative source of medical care–that gives prisoners a constitutional right to health care. (6) Thelength of a sentence will often depend on program participation while in prison; procedures for release, such as release to parole supervision, normally assess the rehabilitative efforts of a candidate. However, prisoners with mental and physical disabilities are disadvantaged. They must manage within the security-first concrete and steel priorities of correctional facilities and often must rely on the good will of other prisoners for assistance with activities of daily living, such as hygiene, nutrition, and mobility. Without the ability to use staircases, they may not be allowed to work and are thereby denied the nominal wages paid to prisoners for work. They may not be allowed to enroll in programs and prerelease training or education because of their problems with learning, mobility, or being housed in a medical or psychiatric unit. Without basic medical and psychiatric care, or necessary prosthetic or assistive devices, they face an increased risk of injury in difficult and dangerous prison environments. Prisoners, however, anticipated the promised benefits of the ADA, and pro se litigants have repeatedly brought their claims to federal courts. (7)

Although the U.S. Supreme Court ruled in 1998 that the ADA applies in the prison context, (8) states have resisted accommodation. State legislators in a handful of states exempted disabled prisoners from protection against discrimination, (9) and states generally have argued that they have Eleventh Amendment immunity to civil rights claims for damages arising from violations of Title II of the ADA. In a recent decision, however, the United States Supreme Court has ruled that, insofar as Title II ADA claims involve conduct that violates the Fourteenth Amendment, states do not have sovereign immunity. (10) Pro se prisoner Tony Goodman, a paraplegic confined to a wheelchair, filed suit under 42 USC [section] 1983, arguing that he was confined for 23 to 24 hours a day to a cell too small to turn the wheelchair around, that he had been effectively denied access to basic sanitation, medical care, and program participation, and that he had injured himself in efforts to use the toilet. The state of Georgia had argued successfully to the Eleventh Circuit Court of Appeals that it had sovereign immunity to the monetary claims arising from the ADA. Justice Antonin Scalia, writing for a unanimous Court, observed “[N]o one doubts that [section] 5 grants Congress the power to enforce the provisions of the [Fourteenth] Amendment by creating private remedies for actual violations of those provisions’–reminding the Eleventh Circuit that the prisoner’s claims were violations of the Constitution as well as the ADA. As federal courts consider the implications of this decision, three general questions are relevant: (1) What percentage of prisoners will qualify as disabled? (2) What counts as “reasonable accommodation” to the needs of physically challenged and mentally ill prisoners? and (3) Does it not make sense to consider alternatives to incarceration for many disabled prisoners, thereby reducing the potential cost of providing reasonable accommodations behind bars?

The prisoner litigants whose cases proceed in federal court are often those with the most extreme set of facts: paraplegic, incontinent, or severely disabled individuals. But the definition of a “disability” is defined in the ADA as: “(A) a physical or mental impairment that substantially limits one or more of the life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” (11) Of the general population in the United States, the Census Bureau finds that 18%, or 51.2 million people, have a disability and 12%, or 32.5 million, have a severe disability. (12) People with severe disabilities are poorer, with a median annual income of $12,800.

Prisoners and detainees are poorer and sicker than those responding to the Census surveys. (13) Estimates of mental illness among those in prison range from 16% (14) upward to a majority–the finding of a current study released by the Bureau of Justice Statistics in September 2006. (15) These are people who are at risk either physically or mentally. They are vulnerable to substandard care because of erroneous assumptions about them. (16) It would not be unrealistic to expect that a third of prisoners would qualify for reasonable accommodation if we were to take seriously a rehabilitative purpose for imprisonment. In practice, those disabled persons are simply not chosen to participate in educational or training programs. Whether or not the prison officials engage in conscious discrimination, the impact on disabled prisoners is to limit their opportunities for employment and re-integration upon release.

Consequences of failing to make provision for those who live in prison with disabilities can be grave for the individuals concerned. Mentally ill prisoners are much more likely to earn disciplinary sanctions for breaking prison rules or failing to respond promptly to orders, and to accrue further criminal punishment that extends the length of their confinement. Although some prison administrators do recognize mental illness as a mitigating factor as they assess infractions, those prisoners whose disabilities make it hard for them to comply with prison rules often end up with long periods of isolation. Isolation can deepen and exacerbate mental illness, and can prompt acts of self-harm. (17)

For the growing fraction of life-sentenced prisoners who are now aging into their 60s and 70s in state and federal prisons, (18) and for the increasing proportion of middle-aged and elderly in the prison population, (19) the questions are: what accommodations should be considered and what are the core activities (of a life in prison) that should be protected? For the past twenty years, I have worked on medical care programs behind bars. Through this work as an executive or consultant in prisons, jails, and juvenile detention centers across the nation, I have seen each of the following accommodations successfully implemented. These are practical and achievable objectives:

* Medical care and physical plant accommodations for patients with multiple chronic medical illnesses such as chronic respiratory disease, diabetes, arthritis, and heart disease, diseases that are highly prevalent among the poor, who are over-represented in prisons and jails. (20) In addition, there are conditions whose prevalence is uniquely high behind bars, including paraplegia secondary to gunshot wounds, advanced liver disease from alcohol abuse and/or viral hepatitis C, and end-stage kidney disease from injection drug use and/ or HIV infection. Geriatric patients are at special risk for acute infections, such as influenza and pneumonia. (21)

* Mental health care and physical plant accommodations for patients with serious mental illness, such as schizophrenia, bipolar disorder, major depression, and post-traumatic stress disorder. The prevalence of each of these is higher behind bars than in the community. (22)

* Medication for patients with chronic medical problems and mental illness.

* Protection from heat injury for those especially susceptible, including those with chronic illnesses such as diabetes and those who are on medications that increase the likelihood of heat injury, for example, medications for psychosis and heart disease. (23)

* Skilled nursing care for patients with functional disabilities that interfere with their activities of daily living: bathing, dressing, eating, transferring, and toileting. Some patients with physical disabilities need mobility aids that can be hard to come by behind bars. In prison, there are activities that are unique to daily life, called “prison activities of daily living.” These necessary actions include dropping to the floor for alarms, standing for head count, moving to dining areas, climbing on top bunks, and hearing orders. Rates of functional impairment are higher when these activities are measured. (24)

* Programming for patients with physical or functional disabilities, including those with chronic disease, mental illness, and developmental disabilities. Patients with vision and hearing problems are common among older people. (25) These conditions can result in falls, social isolation, depression, and functional physical disability. Patients with cognitive impairments, such as dementia, from aging or medical conditions such as HIV or viral hepatitis C are physically vulnerable.

* Training for correctional staff to recognize that failure to cooperate with prison rules can be caused by impairments of sense (hearing or vision), dementia, or mental illness. These patients are too often disciplined with segregation status instead of being referred for evaluation, treatment, and protective housing. Likewise, patients with physical disabilities that cause problems such as vomiting or incontinence too often get disciplined for soiling instead of being evaluated by medical care staff.

* Personal safety protection for those with physical or mental disabilities, especially the elderly.

The modifications that would be warranted by a scrupulous application of the ADA to prisons and jails–increasing physical access within a facility, increasing timely contacts between prisoners and social service and medical staff, increasing congregate time for education and training–run immediately up against the security provisions, some of which are policy-driven and others of which result from the design of a particular facility. As it was expressed by lawyers for the group of states arguing for sovereign immunity: (26)

Like most Americans, amici applaud the ADA’s goal of ensuring that disabled citizens are protected from invidious discrimination and have every opportunity to participate fully in the benefits our society provides to other citizens. Prisons, however, are dangerous places for all who work or live there…. Recognition of private ADA claims has the potential to disrupt sound prison administration which, as this Court has often noted, is “peculiarly within the province and professional expertise of corrections officials.” (27)

It should be more of a concern to the states and the federal government that there is widespread failure on the part of states, and state departments of correction, to enact the provisions of the ADA. (28) It is not acceptable that the ADA mandate should simply be waived–or considered a principle less significant than that of punishment. If it is not feasible to treat disabled prisoners fairly and without discrimination in prison settings, then alternative settings should be considered. Imprisonment is the default punishment in the United States, but whether incarceration achieves the purposes of punishment is much less certain. That the Americans with Disabilities Act is yet to be fully implemented should not mean a retreat from its principles; the opportunity and challenge is for criminal justice professionals to envision less restrictive settings in which disabled prisoners can live without constant suffering, and those who are eligible can prepare for life after imprisonment. It is, after all, generally not they who pose the greatest threat to society.