The early disability-related legislation that preceded the ADA (shown in the Spotlight in the previous section) certainly shapes participants in the criminal justice system by impacting how this population lived and will live outside of that involvement. However, the ADA has a consistent, direct impact on the operation of the criminal justice system and the treatment of all of the people in the system.

ADA Title II: Regulation of State and Local Governments

The ADA (Title II specifically) regulates state and local government services. Government services include all aspects of a state’s criminal and juvenile justice systems. 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 psychiatric disabilities) have opportunities equivalent to those provided to people without disabilities. Title II protects all justice system participants from discrimination: employees, witnesses, victims, and community members, as well as the accused and convicted people who are the focus of this text.

For people accused of and convicted of crimes, the ADA regulates how people are treated at all stages of the system (from arrest to reentry), including people who are imprisoned and have lost many of their other rights and liberties. As noted by our nation’s newest Supreme Court justice, Ketanji Brown Jackson, when she was still a lower 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” (Pierce v. District of Columbia, 2015, p. 1). In other words, people who have committed crimes and, as a result, may have forfeited freedoms, possessions, and important rights (such as the right to vote) are nevertheless entitled to be free from discrimination based on certain factors—including disability. Even in prison, people may not be treated inequitably due to a disability (figure 3.15).

Accommodation and Modification

Broadly, the ADA recognizes that everyone, including a person with disabilities, has the same right to participate in the justice system, whether that is making a report to police, attending court proceedings, or reentering the community after prison. On a practical level, the ADA means that day-to-day practices of criminal justice entities (such as police transport, court procedures, and prison dormitory arrangements) should be modified as necessary to allow people with disabilities to access them. Modifications can involve physical changes to an environment, but often they are changes to policies, procedures, and behavior. A good example is communication: everyone in the justice system must take steps to ensure effective communication with a person with a disability—whether the disability is deafness, autism, or schizophrenia (Americans with Disabilities Act, n.d.).

The ADA’s protection for people with mental disorders and its application to the criminal justice system are of enormous significance for justice-involved people. As you have learned, disability, often in the form of mental disorders, is exceedingly common among those who become engaged in the criminal justice system—whether they are simply accused of an offense, proceeding through trial, or convicted of a crime. A psychiatric or behavioral health disability that involves mental illness, a developmental disorder like autism, or an intellectual disability will trigger ADA protection of the person’s rights and prohibit disability-based discrimination against the person. Requiring non-discriminatory treatment for this substantial population in the criminal justice system increases the effectiveness of the system, ensuring public safety and welfare while reducing improper or excessive criminal justice involvement for people with disabilities.

ADA protections may apply in many situations within the criminal justice system. People who are being arrested, tried, or confined are entitled to reasonable accommodations to ensure that they do not suffer discrimination due to disability. 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 an excessive burden?), and there is room for interpretation. Courts considering these questions offer some basic guidelines, but new facts considered by various judges ensure the law is continually evolving (Thompson, 2021). A few illustrative examples are as follows:

• A reasonable accommodation for a person with hearing impairments who is being interrogated by the police would be to provide that person with a sign language interpreter so that they have the opportunity to ask questions and tell their side of the story.
• A wheelchair user being transported by police would be reasonably accommodated by transporters safely securing the person’s chair in the transport vehicle, both to prevent injury to the person and to preserve their dignity.
• Prison treatment or education opportunities for a person with a mental disorder might require accommodation. For example, a person with schizophrenia might be eligible to join an educational program at the prison but be unable to engage in a full day of classes as required by the normal prison schedule. The ADA should require the prison to consider reasonable program modifications that would not change the essential nature of the program or threaten security to make the program accessible for the person with a disability (figure 3.16).

In a real-life example from Minnesota in September 2022, the U.S. Department of Justice determined that Minnesota’s Department of Corrections was violating the rights of disabled prisoners when it did not allow them to seek testing accommodations (such as extended testing time) to successfully complete General Educational Development (GED) testing. Minnesota is responding to that finding by making changes to comply with the ADA. 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 (U.S. Department of Justice, Office of Public Affairs, 2022). The Minnesota case is a perfect example of how the ADA creates equity by making sure people with disabilities are situated similarly to those without disabilities—inside and outside of the criminal justice system.

ADA Protection for All: Victims, Witnesses, and Employees

It is important to reiterate that the ADA applies to everyone in the criminal justice system, not just accused or convicted 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 may 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 in the justice system because of a disability. Courtrooms are public spaces, and they must be accessible for wheelchairs or other mobility devices (figure 3.17). If accommodation for a mental disorder is needed, the accommodation might take the form of an altered schedule to allow the impacted person to participate. As another example, a person with a disorder like autism might benefit from accommodations such as access to communication support (Moss, 2022). Most jurisdictions have ADA coordinators to ensure these accommodations are provided. Take a look at the ADA page for the Multnomah County Circuit Court [Website] if you are interested in seeing how local Oregon accommodations might be requested and fulfilled.

Because of the ADA, people working in the justice system in all different roles (lawyers, judges, officers, and staff) also are protected from discrimination due to disability. A disability may not be used as a reason to refuse to hire or promote someone unless a particular ability (e.g., the ability to run, lift certain objects, or work in remote locations) is explicitly listed as an essential part of the job the person has or is seeking. Disability cannot be used to deny or reduce training, advancement opportunities, or payment at a person’s job. The ADA does not offer anyone special access or privileges; it simply demands that opportunities be available to people with disabilities on the same terms as they are available to people without disabilities. If you are wondering whether the ADA seamlessly accomplishes its goals, you may be unsurprised to hear that it does not. Sometimes enforcement is needed.

Licenses and Attributions for the ADA in the Criminal Justice System

Open Content, Original

“The ADA in the Criminal Justice System” by Anne Nichol is licensed under CC BY 4.0.

Open Content, Shared Previously

Figure 3.15. Photograph of inmate in a prison dormitory in Oklahoma by Josh Rushing is licensed under CC BY-NC-SA 4.0.

Figure 3.16. Photograph of Female Inmate Education Class by CoreCivic is licensed under CC BY-ND 2.0.

Figure 3.17. “Front exterior detail. Wayne N. Aspinall Federal Building and U.S. Courthouse, Grand Junction, Colorado” by Carol M Highsmith is in the public domain.