The early disability-related 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 the treatment of all of the people in the system.

3.4.1 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 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 the same opportunities as people without disabilities, at all points within the criminal justice system. These provisions offer protection to all justice system participants: employees, witnesses, victims, and community members, as well as the accused and convicted who are our focus in 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. 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 inequitably due to their disability (figure 3.10).

Figure 3.10. 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 reduces the barriers they face due to their disabilities.

3.4.2 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, 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 good 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, especially for those facing criminal charges. 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 improper or excessive 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 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 have offered some basic guidelines, but new fact situations considered by varying judges ensure the law is continually evolving (Congressional Research Service, 2021). As just a few illustrative examples:

• A reasonable accommodation for a Deaf person who is being interrogated by the police would be to provide that person with a sign language interpreter – so that the person would have the opportunity to ask questions and tell their side of the story.
• A wheelchair user being transported by police would reasonably be 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 (figure 3.11) 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 –  in order to make the program accessible for the person with a disability.

Figure 3.11 shows women in custody participating in educational activities. While prison involves limitations on freedom, if an opportunity is available to non-disabled inmates, the same opportunity should be available to someone due to a disability, with reasonable accommodations if needed.

In a real-life example from Minnesota in September of 2022, the United States Department of Justice found that Minnesota’s Department of Corrections was violating the ADA rights of disabled prisoners when it did not allow them to seek testing accommodations (such as extended testing time) to successfully complete GED (General Educational Development) testing. Minnesota is responding to the 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 (Department of Justice, 2022). This 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.

3.4.3 ADA Enforcement Lawsuits

Sometimes, alerting violators to the error of their ways is not adequate to create change. Where ADA demands are routinely or stubbornly unmet, enforcement may take the form of a lawsuit. A lawsuit can be 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 regarding criminal justice settings can be brought under a number of different legal theories, or legal approaches, all of which essentially assert that a state or local government entity (e.g. a department of corrections) failed to do something that was required to create equity for people with disabilities. The ADA does not provide for money damages; lawsuits may seek to create change but they will not compensate a plaintiff. Attorney fees may be recovered, to encourage legal service organizations to represent ADA plaintiffs and causes.

Some legal theories that may support ADA lawsuits in the criminal justice area are wrongful arrest, failure to accommodate, and failure to train. These different theories have a good deal of overlap, and you can see how one fact situation might allow arguments or claims based on each of these theories (Dempsey & Sabzevari, 2013).

Wrongful arrest might be alleged where, for example, a person suffering a mental health episode appears intoxicated and is detained for that behavior. This arrest could be an innocent accident, or it could be due to 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. Proper accommodation 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 – and knowing failure to do so could be grounds for a lawsuit.

Another appealing ADA theory is failure to train – recognizing that a certain level of training must occur so that reasonable accommodations within the criminal justice process can be made consistently and effectively. For example, police interactions with a person experiencing a mental health crisis might unnecessarily cause harm if police fail to use proper de-escalation techniques or restraints under the circumstances. Where that failure is attributable to the officer’s department or supervisor who neglected to provide proper training, that may be an ADA violation. 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).

3.4.4 ADA Protection for All: Victims, Witnesses, and Employees

It is important to reiterate that the ADA protects 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 3.12). If accommodation for a mental disorder is needed, that might include changes such as an altered schedule to allow the impacted person to participate. A person with a disorder like autism, as another example, might benefit from accommodations such as access to communication supports or even the giving of particular jury instructions (Organization for Autism Research, 2022). Most jurisdictions have ADA coordinators to ensure these accommodations are provided. Take a look at the ADA page on the Multnomah County Court’s website if you are interested to see how local Oregon accommodations might be requested.

Figure 3.12 shows the exterior of a federal courthouse in Colorado, made accessible with ramps bypassing the stairs at the entrances.

People working in the justice system in all different roles (lawyers, judges, officers, staff)  are protected from discrimination due to disability as well. 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, or 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 or opportunities or payment at a person’s job. The ADA demands that all of these things must be available to disabled people on the same terms that they are available to people without disabilities. If you are wondering whether the ADA seamlessly accomplishes these lofty goals, you may be unsurprised to hear that it does not. Sometimes, enforcement is needed.

3.4.5 The ADA in the Criminal Justice System: Licenses and Attributions

“The Americans with Disabilities Act” by Anne Nichol is licensed under CC BY 4.0.

Figure 3.10. “Photo of inmate in a prison dormitory in Oklahoma” by Josh Rushing is licensed under CC BY-NC-SA 4.0

Figure 3.11. ” Female Inmate Education Class” by CoreCivic is licensed under CC BY-ND 2.0

Figure 3.12. “Front exterior detail. Wayne N. Aspinall Federal Building and U.S. Courthouse, Grand Junction, Colorado” by Carol M Highsmith is in the Public Domain