Likely the most significant law impacting people with disabilities is the Americans with Disabilities Act, or the ADA, codified at 42 U.S.C. §§ 12101 et seq. The ADA, like Section 504, is a civil rights law that prohibits discrimination against people with disabilities. The ADA, however, applies much more broadly – in all areas of public life, including the justice system. This section outlines the history of the ADA and explains its general applications, as well as how it applies in the criminal justice system.

The ADA was first introduced in 1988. It had been modeled after the Civil Rights Act of 1964, striving to provide access to opportunities for people with disabilities that is equal to that enjoyed by people without disabilities. An important focus of the draft ADA was allowing people with disabilities to achieve greater levels of independence in their lives. While this seems a generally positive goal, passage of the ADA was not without problems that, occasionally, threatened to derail its progress. Even some disability advocates had concerns about the bill initially, including concerns about its intent and origins. Eventually, however, many activists were fighting for its passage, just as they had done for Section 504 of the Rehabilitation Act (Burgdorf, 2022).

Dozens of disabled activists joined a culminating demonstration in March of 1990, just months before the ADA was finally signed into law. The so-called “Capital Crawl” was intended to illustrate the barriers faced by disabled people; protesters left their wheelchairs and other mobility aids to crawl up the steps of the U.S. Capitol. One of the demonstrators was Michael Winter, a wheelchair user with a genetic disorder. At the protest, Winter shared the many events in his life where he experienced segregation, including being excluded from a regular school, being denied access to public transportation and being refused service at restaurants. Another protester was an 8 year old girl with cerebral palsy, Jennifer Keelan, who led the crawl and remains a disability advocate today (figure 3.4; Kaufman, 2015).

Figure 3.4. 8-year-old Jennifer Keelan leads physically disabled protesters on the March 12, 1990, “Capitol Crawl.” (© AP Images), from https://share.america.gov/crawling-up-steps-demand-their-rights/

In 2022, thirty-two years after she participated in the Capitol Crawl, activist and disability community leader Maria Palacios shared her impressions of the event in a newspaper interview. Palacios was only 24 years old when she participated in the demonstration. She felt “insignificant and yet so important at the same time” to be participating in an historical event that, after years of struggle in the disability rights community, made such a big difference in the people’s lives. Palacios recalled that, prior to the passage of the ADA, “we could just be denied access to life.” But during the Capitol Crawl, she truly felt for the first time “that we deserve[d] to make those demands, that we deserve[d] to say: ‘We are here. We deserve to be here.’”

Unfortunately, Palacios today observes lingering discrimination against people with disabilities, or ableism: “I hate to say this, but because of ableism – and it’s so deeply rooted in the social structure of our culture – very little has changed.” Palacios, who self-identifies as a  “brown, disabled immigrant” and a “queer mother” also notes that the disability rights movement at that time still marginalized woman and people of color (Cabrera & Ybarra, 2022).

The ADA officially became law in July of 1990, when it was passed by Congress and signed by then-President George H.W. Bush. People with disabilities had long been excluded from so many aspects of life, and the ADA was poised to open the door to real change. Notably, the focus was on elimination of barriers in the environment where disabled people were living, working, or traveling – whether those barriers were in the form of negative attitudes or inaccessible facilities. Many people with disabilities have observed that it was (and is) not so much an individual’s perceived “impairment” that causes problems for a person – rather it is a world that is often hostile to their differences. This understanding is called the social model of disability, in contrast to the medical model, which attributes problems to a person’s disability (figure 3.5; UNICEF, 2017). The social model of disability is the far more practical approach to understanding barriers, as the environment is what can be changed. That is what the ADA sets out to do.

Fig 3.5 Models of Disability – https://disstudies101.com/perceptions/models-of-disability/

3.3.1 Coverage of the ADA

The ADA contains five different sections, called “titles,” which cover different aspects of life where discrimination based on disability is prohibited:

• Title I: Employers must offer people with disabilities equal opportunities in hiring, training, pay, etc.
• Title II: State and local governments (health care, social services, courts, etc.) must provide people with disabilities equal opportunity to benefit from programs, services, and activities.
• Title III: Public transit systems (bus, train) must provide people with disabilities equal opportunity to benefit from services.
• Title IV: Businesses (restaurants, doctor’s offices, taxis, office buildings) must provide people with disabilities equal opportunity to access their goods or services.
• Title V: Telephone companies must provide accessible service to people with hearing and speech disabilities. (ADA.gov, n.d.)

Note that the ADA covers most, but not all, aspects of life. Some bans on discrimination against disabled people are covered by other specifically targeted laws, such as the Fair Housing Act and the Air Carriers Access Act.

In each of the areas covered by Titles I through V, the ADA prohibits discrimination against people with disabilities by ensuring their full access to public settings (places, events, service, opportunities). This is accomplished, as the social model suggests, by changing the environment. There are endless examples of barriers that can occur for people with disabilities, and often these are substantial and exclusionary for the impacted person with a disability, but are relatively easily removed by the organization or facility that contains the barrier. If the barrier, whatever it is, is too burdensome to change, then that is not required; only reasonable changes are required by the ADA.

Ensuring access for a physically disabled person might require, for example, a building manager to widen a doorway or rearrange furniture. Sometimes activities occurring in the building might simply be relocated to a more accessible space in the building. An employer meeting ADA obligations would have to identify and remove other sorts of barriers as well. Employers cannot require that a person be able to do things (e.g. work without breaks) if that is not, in fact, an essential element of the job. Rather, an employer must consider what abilities are actually essential to job performance and advertise, hire, and promote accordingly. When done properly, this approach opens many types of job opportunities to people with many types of disabilities.

3.3.2 Mental Disorders as ADA Disabilities

A person receives protection under the ADA if they have a disability, as defined within the Act. If a person does not have a disability, the person is not included in ADA protections. The one exception to this is a person who has a known caregiver role (such as parent) of a person with a disability; this very limited group of people are protected as well – lest employment or other opportunities be denied to them based on assumptions due to their connection to disability.

A disability is defined within the text of the ADA as a physical or mental impairment that:

• substantially limits (this is very broad and includes any real limitation beyond, for example, a mild pollen allergy)
• one or more major life activities (also very broad – things like eating, walking, thinking, reading, and basic bodily functions).

More apparent physical disabilities, such as those requiring a mobility device like a wheelchair, are often front-of-mind when thinking about accessibility and inclusion under the ADA, because those disabilities are more obvious to outside observers. Also, many of the accommodations for physical disabilities are easily observable and commonly used by people with and without disabilities: ramps into buildings, elevators between floors, and lifts onto buses, just to name a few examples.

The ADA also protects those who experience less obvious or invisible disabilities, such as many mental disorders, but this was not always clear. In fact, courts interpreting the ADA when it was freshly passed in the 1990s were quick to exclude many mental disorders (and other brain-related disabilities) from the ADA definition of “disability” – thereby narrowing the scope of the law and excluding a large swath of disabled people from ADA coverage.

For people asserting a disability due to mental illness, the law (or court interpretations of it) proved especially troublesome. Some courts wanted to link ADA disability status for people with mental illness to their use of and benefits from medication. If medication helped a person be well, or could help a person be well, perhaps they weren’t actually “disabled” under the ADA, according to these courts. In that case, a person treating a serious mental illness with psychiatric medications would not qualify for ADA accommodations. People with mental disorders seeking ADA protection were caught in a no-win situation by this logic: taking effective medications might remove ADA protection if they seemed not disabled when the medications were working well; but at the same time, not taking medications might also remove ADA protection if a court viewed them as failing (in the view of the court) to effectively manage their mental illness (Jackson, 2010).

Congress eventually took action to address several ADA issues, including the narrowing of the definition of “disability.” They passed the 2008 Amendments to the ADA which, among other things, ensured that common mental disorders were specifically included in ADA protections. The Amendments also clarified that these conditions would be evaluated in their “unmitigated,” or unmedicated, state. It is understood that conditions like bipolar disorder are disabilities – aside from the detail of whether they are currently being medicated or not. In other words, whether or not a person is taking medication for their bipolar disorder, and whether or not their bipolar is well managed by medications, they still have a disability under the ADA because their diagnosis can be a disabling one.

Current ADA regulations list numerous specific disabilities that are covered, but the list is not exclusive; other conditions can qualify as well. Disabilities that trigger ADA protection include diabetes, HIV, cerebral palsy, deafness, blindness, and epilepsy. Some examples of covered conditions especially relevant to this text (and discussed in more detail in Chapter 2) are anxiety disorders, post-traumatic stress disorder, autism, intellectual disability, mood disorders (such as bipolar disorder), and traumatic brain injuries (ADA.gov, n.d.). These mental disorders that are considered disabling are often called psychiatric disabilities when talking about application of the ADA or other disability-specific laws (ADA National Network, 2018).

3.3.3 ADA in Criminal Justice

The early disability rights and empowerment legislation that preceded the ADA (shown in the timeline in the previous section) certainly shaped participants in the criminal justice system – affecting how this population lived, and how they were educated and employed. However, the ADA has a consistent, direct impact on the operation of the criminal justice system and all of the people in it. The ADA regulates how people are treated in all stages of the system (from arrest to reentry) – including people who are imprisoned after conviction of crimes and have lost many of their rights. As noted by our nation’s newest Supreme Court Justice, Ketanji Brown Jackson, when she was still a district court judge in the District of Columbia: “Incarceration inherently involves the relinquishment of many privileges; however, prisoners still retain certain civil rights, including protections against disability discrimination” (​​United States District Court, District of Columbia, 2015). In other words, people who have committed crimes and, as a result, may have forfeited their freedoms, possessions and many important rights (such as the right to vote) still have the right to be free from discrimination based on certain factors – including disability. They may not, even in prison, be treated unfairly due to their disability (figure 3.6).

Figure 3.6. This photo of a prison dormitory in Oklahoma shows, in the background, a man who uses a wheelchair in custody. People with a variety of disabilities, visible and not, have always been in the prison system. The ADA ensures that they are not treated differently due to their disabilities.

The ADA (in Title II specifically) regulates state and local government services. Government services include all aspects of the criminal justice system and the juvenile justice system. Title II of the ADA prohibits all justice system entities – police, jails, lawyers, courts, community corrections, and prisons – from discriminating against people with disabilities. All of these entities must ensure that people with disabilities (including disabilities related to mental disorders) have opportunities equal to those allowed to people without disabilities, at all points within the criminal justice system.

Broadly, the ADA recognizes that everyone, including people with disabilities, has the same right to participate in the justice system, whether that is defending oneself from accusations or reentering the community after prison. On a practical level, as applied to criminal justice entities, the ADA means that day-to-day practices (police transport, court procedures, prison dormitory arrangements) should be modified as necessary to take account of and properly support people with disabilities. Modifications can involve physical changes to an environment, but often modifications are changes to policies, procedures, and behavior. An important example is communication: everyone in the system must take steps to ensure effective communication with people with disabilities – whether the disability is deafness, autism, or schizophrenia (archive.ADA.gov, n.d.).

The inclusion of people with mental disorders in the protection of the ADA and the law’s application to the criminal and juvenile justice systems are of enormous significance. As you have learned, disability, often in the form of mental disorders, is exceedingly common among those who find themselves engaged in the criminal justice system – whether they are simply accused of an offense, or proceeding through trial, or convicted of a crime. Whether the mental disorder involves mental illness, or a developmental disorder like autism, or an intellectual disability – those conditions are covered by the ADA, and therefore accommodations must be made to avoid disadvantage to a person due to their disability. Requiring equal treatment for this substantial population in the criminal justice system increases the effectiveness of the system; effectiveness in turn increases public safety and welfare, while helping avoid unnecessary criminal justice involvement for people with disabilities (archive.ADA.gov, n.d.; U.S. Department of Justice, 2017).

ADA protections may be called upon in many situations within the criminal justice system and its processes. People who are being arrested, tried, or confined are entitled to “reasonable accommodations” to ensure that they do not suffer discrimination due to disabilities. A reasonable accommodation is something that meets the needs of the disabled person, but does not place an excessive burden on the government entity. As you might imagine, there is considerable discussion in the courts and elsewhere about what these terms mean (what is reasonable? and what is excessive?), and there is room for interpretation. Court decisions in the past offer some basic guidelines.

For example, a reasonable accommodation for a person with intellectual disability in a law enforcement arrest context might be providing the person with a modified Miranda warning, so the person is better able to comprehend their rights to remain silent or have the help of a lawyer. A reasonable accommodation for a person in custody could relate to something like prison treatment opportunities. For example, a person with schizophrenia might be interested and otherwise eligible to join an educational program at the prison. However, due to symptoms of their disorder, they are unable to engage in the full days of classes that would generally be required to take advantage of the opportunity. The person should not, under the ADA, be excluded from the opportunity for that reason, if a reasonable accommodation can be made. If the program could be extended over a longer period with shorter days, for example, it might enable participation by the disabled person without sacrificing the goals of the program. This is an environmental modification that satisfies the ADA and places a reasonable burden on the prison.

In real-life example that was just resolved in Minnesota in September of 2022, the United States Department of Justice found that Minnesota’s Department of Corrections was violating the ADA rights of prisoners with disabilities when it did not allow them to seek testing accommodations (such as extended testing time) to successfully complete GED (General Educational Development) testing in light of their disabilities. Minnesota is responding by making changes to comply with the law. These changes will benefit those individual prisoners who want to take and pass the GED, as well as communities that will house and employ these individuals upon community reentry (Department of Justice, 2022).

Sometimes, alerting violators to the error of their ways, even by the U.S. government, is not adequate to create change. Where ADA demands are routinely or stubbornly unmet, enforcement may take the form of a lawsuit brought by involved individuals or by the federal government against the local government entity. Individuals can also file complaints with the federal government, and the government can follow up on those.

ADA lawsuits can be brought under a number of different legal theories, or legal approaches, all of which basically say: you, state or local government criminal justice entity, failed to do this particular thing that is required to create equity for people with disabilities, please fix it. The ADA does not provide for money damages; lawsuits may seek to create change but they will not enrich a plaintiff. Attorney fees may be available to encourage organizations to represent ADA plaintiffs and causes.

Typical legal theories that support ADA lawsuits in the criminal justice area are “wrongful arrest,” “failure to accommodate,” and “failure to train.” Wrongful arrest might be alleged where, for example, a person suffering a diabetic episode appears intoxicated and is detained for that behavior. This arrest could be an innocent accident, or it could, under the right circumstances, be the arresting officer’s unacceptable failure to listen to or appreciate information that reasonably would have informed them that the person was experiencing a disability symptom rather than voluntary intoxication. If it is the latter, that may be a wrongful arrest.

Failure to accommodate might entail any number of situations that could arise in the criminal justice system, such as not providing a mobility device to an incarcerated person who needs one, or not providing a deaf person who has been arrested with alternate means to communicate. It might include police taking measures to include people with special training when responding to a mental health crisis call, knowing that a psychiatric disability is involved and escalation could be dangerous.

With respect to people with mental disorders in the criminal justice system, failure to train may be an appealing theory on which to base an ADA claim. When many ADA accommodations involve adjusting procedures or behavior by the criminal justice professional – not just moving furniture around – a certain level of training must occur so these changes can be made consistently and effectively. For example, it is not uncommon for police to misconstrue the perhaps-unusual actions of a person with a disability as threatening, which causes an encounter to escalate. This escalation may result in unnecessary criminal involvement for the disabled person, as well as increased safety risks for the person and for the officer – an outcome not desired by the person or the officer. Again, this may be an inevitable outcome in an unfortunate set of events. Or it may be a problematice failure by the officer to appreciate information that was available or to use better techniques to resolve the situation quite differently.

A lawsuit based on a scenario like this might allege, among other things, that the police department failed to train its employees to properly engage with or accommodate people with disabilities. While one or more individual officers may have behaved improperly, the bigger picture (and the target of an ADA claim) is the police department. The department hired and purportedly trained the officers, but did not adequately prepare them to do their job, which inevitably includes engaging with people with mental disorders. The Department of Justice has published tips and suggestions for criminal justice entities, encouraging adequate training as well as other measures to comply with Title II of the ADA – and presumably avoid legal action (U.S. Department of Justice, 2017). Enforcement of disability laws more generally is discussed in the next section.

It is important to note that the ADA protects everyone in the criminal justice system, not just offenders.Victims and witnesses in the criminal justice system benefit from prohibitions on disability discrimination. For example, the ADA must be considered in interviewing victims or witnesses, who should receive accommodations for physical or mental disabilities as necessary to ensure their participation in the justice process. Likewise, when testimony is taken in the courtroom, or when parties receive communication of schedules or proceedings – those things must comply with any required accommodations so no person is shut out of or compromised in their participation due to a disability. Courtrooms are public spaces, and they must be accessible for wheelchairs or other mobility devices. If it is an accommodation for a mental disorder that is needed, a schedule might be adjusted for a participant in a case.

People working in the justice system are protected from discrimination due to disability as well. Disability may not be used as a reason to refuse to hire or promote someone if that disability is not an essential part of the job the person is seeking. Disability cannot be used to deny or reduce or interfere with training or opportunities or payment at a person’s job, if those things are available to people without disabilities.