3.5 Enforcement of Disability Rights
The United States Department of Justice, or DOJ, is the federal agency that enforces laws of the United States. The DOJ is thus the primary protector of the rights of individuals under the ADA, as well as other federal laws and the U.S. Constitution. The DOJ’s Civil Rights Division in particular is focused on responding to discrimination and violations of individual rights. The DOJ may offer its input in private lawsuits; it may respond to and act on complaints brought to its attention by individuals; or it may bring its own legal actions. Lawsuits regarding disability rights that are brought or joined by the DOJ are intended to force change, broadly. They may be directed at one police department or one prison, but they are intended to be observed and set precedent for others to follow.
3.5.1 DOJ Enforcement Related to Mental Disorders
Over the past decade, a significant number of DOJ-involved enforcement cases have focused on people with mental disorders in the criminal justice system. These cases assert that rights of people with disabilities have been violated, under the ADA or other federal laws, or the Constitution. These disability lawsuits continue to push forward change – slow but sure – for this group of people who are the subject of our text. Cases range in topic, but the theme in all of them is that an individual or a group of people, due to disability, are situated differently from others in terms of their ability to succeed – not due to the existence of their disability but because of the system’s failure to create a level playing field by properly accommodating it.
As a recent (and as of this writing ongoing) example, the New York case M.G. v. Cuomo alleges that people with serious mental illness suffer from a lack of treatment and housing options upon release from prison. The gist of this lawsuit is that people with psychiatric disability are in a fundamentally different position than those without these conditions at the point of reentry into the community. This is because people with serious mental illness are much more likely to be stuck in an institution, whether they are held in prison longer or whether they are released to institutional care. The lawsuit claims that the system needs to change to prevent that outcome. People shouldn’t be more likely to be confined due to a disability, rather than due to disability-neutral factors, such as the nature of their crime. Whatever its outcome, M.G. v. Cuomo will impact operations in New York and elsewhere. New York specifically may be required to make changes based on the court’s decisions, but other states also will observe and learn (archive.ADA.gov, n.d.).
An Oregon example of DOJ enforcement is the lawsuit that was brought by the DOJ and resolved by a settlement with the Portland Police Bureau in 2012. That case alleged that the Portland Police was engaged in a pattern of violations where they used excessive force against people with mental disorders. The killing of James Chasse, a Portland man with schizophrenia, was one among several events that gave rise to the case. This case resulted in the city of Portland agreeing to enact numerous changes and reforms. More information on James Chasse and his death is provided in Chapter 5 of this text.
3.5.2 Civil Rights of Institutionalized Persons Act (CRIPA)
A law that was passed in 1980, the Civil Rights of Institutionalized Persons Act, or CRIPA, provides an option for the federal government to protect the civil rights of people who are in institutions. This law was created, at least in part, in response to the 1970s public outcry against conditions at institutions like Willowbrook where people with mental disorders were kept in horrid conditions. When Robert Kennedy had toured Willowbrook in 1965, he called it “a snake pit” (Nicols, 2022). The long-overdue legislation known as CRIPA does not focus specifically on people with disabilities; it applies to everyone who is in a facility (e.g. jail, prison, juvenile hall, or state hospital). Numerous CRIPA cases do relate to people with mental disorders, however, because this population is so heavily represented in institutions – and because they are so vulnerable to neglect and harm in these environments.
In 2020, the DOJ concluded a CRIPA investigation of the Massachusetts Department of Corrections (MDOC), ultimately concluding that MDOC had violated the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishment. MDOC had failed to properly supervise and care for prisoners who were in a mental health crisis, resulting in some of these prisoners hurting themselves, and even dying, while on supposed mental health watch (Department of Justice, 2020).
The DOJ also recently (in 2022) concluded a two-year CRIPA investigation of the Parchman State Penitentiary, located in the Mississippi Delta. The prison is the state’s oldest, and it holds nearly 2000 people. At Parchman, 70% of the population are Black Mississipians, though Black people make up only 37% of the state’s general population. In its investigation, the DOJ found that the Mississippi corrections department had violated the Constitution in several specifics, including:
- failing to provide adequate treatment to people with serious mental illness;
- failing to enact sufficient suicide prevention;
- failing to prevent violence between confined people;
- and subjecting people to prolonged solitary confinement in egregious and harmful conditions.
These violations had resulted in at least 10 homicides and 12 suicides at Parchman since 2019, when weeks of prison riots drew national attention to the long-standing problems.
The DOJ recognized that its work in the Parchman case was targeted to the vulnerable intersection of race, disability, and criminal system involvement: “The importance of the department’s work in remedying unconstitutional conditions of confinement is significant and far-reaching. Over two million people currently reside in our nation’s prisons and jails. People of color and those with mental illness are disproportionately represented among them” (U.S. Department of Justice, 2022).
A documentary intended to expose the history of and conditions at Parchman, and inform about the various legal actions there (figure 3.13), was produced by RocNation – Jay-Z’s entertainment company – and aired on television in June of 2023. Watch the clip from that program below, if you are interested in learning more about Parchman.
Figure 3.13 is a short clip from the longer documentary Exposing Parchman (2023).
3.5.3 Private Enforcement of Civil Rights
While DOJ action allows the federal government to bear the burden of identifying and investigating problems, and then enforcing its own laws, oftentimes individual violations are not viewed as a federal government priority or opportunity. Then, individuals can and do initiate lawsuits. Impacted individuals might sue a local government entity – a police department or an institution – to enforce their rights under the Constitution or statutes such as the ADA.
Civil rights lawsuits like this are inevitably complex, lengthy, and expensive, and they are challenging to win. Sometimes these lawsuits can vindicate a particular individual’s rights. And sometimes, they create broader change by establishing a new rule or precedent that applies beyond an individual case. However, these are hard-won victories and often plaintiffs have a very challenging time even finding and paying skilled legal representatives to start these lawsuits. Nevertheless, there are notable examples where lawsuits have brought critical changes to treatment of people with mental disorders.
Advocacy organizations like the American Civil Liberties Union or disability rights groups may represent individuals in bringing these lawsuits, as they also further the organization’s larger advocacy objectives. The nonprofit Disability Rights Oregon, as a local example, has been engaged in on-and-off litigation for more than twenty years now, ensuring that people with mental disorders who are too impaired or sick to proceed in criminal cases do not languish in jail for weeks and months while awaiting admission to the Oregon State Hospital. If you would like to learn more about this litigation, you can read about DRO’s mental-health related work at the Disability Rights Oregon website [website].
It was the Atlanta Legal Aid Society that brought a disability-rights lawsuit on behalf of two individuals in 1995, resulting in what is usually viewed as the most important Supreme Court decision on the rights of people with mental disorders. The case of Olmstead v. L.C. (1999), brought by two women who were challenging their confinement to a hospital, established the important principle that people with disabilities should not be segregated without justification (Bazelon Center for Mental Health Law, n.d.). See the Spotlight in this chapter about the Olmstead case and its inspiring plaintiffs.
Though Olmstead was not a criminal justice case specifically, its principles have informed approaches to people with mental disorders in the criminal justice system in ensuing years. Criminal justice scenarios are a common place for separation to occur in the name of protecting people with mental disorders, or protecting others from people with mental disorders. Under the law after Olmstead, less restrictive environments have to be considered for people with mental disorders who might otherwise be segregated in prison environments or hospitals.
Olmstead has been cited to encourage diversion of people out of the criminal legal system (discussed in Chapter 4) to reduce the use of very restrictive or solitary placements in prison; to challenge institutionalization of people before and after criminal convictions; and to object to jail-based treatment for accused people who are mentally ill (discussed in Chapter 9.) Scholars have become eager to consider how the rule against segregation expressed by Olmstead – which is contrary to the entire notion of imprisoning people with mental disorders – might be employed to reform and reduce incarceration more broadly (McDonough, 2021; Morgan, 2020).
Other lawsuits by private individuals have established and clarified important rights for people with mental disorders under the ADA, like Olmstead, as well as under other laws and the federal Constitution. These lawsuits take many forms, but generally they claim that a person’s rights were violated and that they suffered some injury as a result of that violation. Lawsuits like this can be critically important to enforcing laws or Constitutional provisions that – like so many civil rights provisions – are “on the books” but not being practiced in reality.
Right to Treatment
Many court decisions over the years have clearly established that people in custody have a federal Constitutional right to receive adequate medical treatment – including mental health treatment. Prisoners also have a related right to be protected from self-harm in the event they are suicidal. These cases are very difficult to prove and to win, as they typically require evidence that the offending jail or prison personnel knew of a serious problem or threat and chose not to provide the required help or treatment, a challenging standard called deliberate indifference. Farmer v. Brennan, 511 U.S. 825 (1994). Nevertheless, despite significant obstacles, people injured by lack of mental health care in custody do bring lawsuits, and, occasionally, they win. When lawsuits based on lack of treatment are successful, and even sometimes when they are not, they can bring attention to problems and help carve out the increasing expectation that the criminal justice system must meet mental health needs. See Chapter 7, and the Spotlight on Constitutional Right to Care, for some additional discussion of deliberate indifference.
Though any number of cases could serve as an example of private litigation being used to enforce the mental health rights of people in custody, and of the enormous barriers faced in that sort of lawsuit, an Arizona case that was resolved in the summer of 2022 is illustrative. That case, Jensen v. Shinn, was filed by a group of prisoners represented by the ACLU and the Arizona Center for Disability Law in 2012 (figure 3.14). After twelve years of fighting Arizona prison officials – and producing mountains of evidence of pervasive failure to meet the medical and mental health needs of prisoners in numerous ways – the plaintiffs got the case to trial and a judge finally found that the prisoners’ rights had been violated (American Civil Liberties Union, 2022). Among many other specifics, the evidence showed “that the conditions in . . . isolation units [were] gratuitously cruel, including the indefinite incarceration in solitary confinement of seriously mentally ill persons” (American Civil Liberties Union, 2021). If you are interested, you can read more about that case at the Arizona Center for Disability Law [website].
Figure 3.14 shows an Arizona prison facility in a desert-like landscape with mountains behind it.
3.5.4 SPOTLIGHT on Integration of People with Mental Disorders: The Olmstead Case
In the 1990s, two women, Lois Curtis ( “L.C.”) & Elaine Wilson, both of whom had mental disorders, were confined to a Georgia hospital where they received care, funded by the state. Curtis had been at the hospital since she was 11 years old; Wilson had been in and out of many institutions, eventually landing at the hospital. Over time, it became clear to Curtis and Wilson, and to their care providers, that the women were capable of living in less restrictive environments in the community. They both wanted to, and were capable of, living in home-like settings with proper supports. Neither woman required or desired confinement or the care of a hospital. The State of Georgia, via its Department of Human Services, however, refused to fund more independent care, and so the women remained in the hospital – against their wishes and at taxpayer expense. Their hospitalization continued on for years.
Curtis and Wilson, represented by an Atlanta Legal Aid lawyer, eventually sued Tommy Olmstead, the Commissioner of Georgia’s Department of Human Services. Olmstead’s refusal to shift funding to a community setting had kept Curtis and Wilson segregated in a hospital, but his name was about to become synonymous with the idea that segregation of people with disabilities is wrong (Appelbaum, 2019).
Curtis and Wilson’s lawsuit pointed out that Olmstead’s actions violated Title II (which regulates state and local governments) of the ADA. People without their particular disabilities would have had the opportunity to live in the community (indeed, would not ever have been institutionalized), and they should have the opportunity to do the same. The ADA, they contended, gave them the right to receive services in the same way non-disabled people would, in a less-restrictive, integrated, community-based setting. This right was not overshadowed by Georgia’s preference for funding institutional care. The women argued that their segregation in a hospital was unnecessary and violated the ADA.
The case made its way to the Supreme Court of the United States, which agreed with Curtis and Wilson. The Court ruled that segregation of these women in a hospital – not allowing them to live with others in the community – was not required by the women’s disabilities, but rather was due to the unwillingness of authorities to reasonably modify their response. The perpetuation of unnecessary segregation of these women was discrimination based on disability, which violated the ADA.
Justice Ruth Bader Ginsburg (figure 3.15) wrote the Court’s opinion in Olmstead, emphasizing that this type of segregation which occurs to people with mental disorders “perpetuates unwarranted assumptions that [segregated people] are incapable or unworthy of participating in community life” and observed that “institutional confinement severely diminishes individuals’ everyday life activities.” Olmstead v. L.C., 527 U.S. 581 (1999).
Figure 3.15 shows Justice Ruth Bader Ginsburg, the first Jewish woman and only the second woman ever to sit on the U.S. Supreme Court, in her 2016 portrait. Ginsburg was nominated to the Court in 1993, and is well-known as a women’s advocate but less recognized for her significant contribution to disability rights.
The Olmstead decision was transformational. For the individual plaintiffs, Curtis and Wilson, their desire to live in the community was vindicated. For people who experience mental disorders throughout the nation, in all manner of institutional settings and supervised by local governments, the implications of Curtis’s and Wilson’s case were enormous. The Supreme Court had affirmed that people with disabilities cannot be kept in a limiting or confining environment based on government preference, when that type of removal from community is not justified by real needs of the person’s care. If people can be included in the community, they should be.
Elaine Wilson died just a few years after she was finally allowed to live in her own home with a caregiver, the culmination of a difficult life moving in and out of facilities (which she despised) dozens of times. Like her co-plaintiff, Elaine Wilson had begun her life of segregation as a child, after a high fever left her with disabilities. Reportedly, once she was finally living in the community, she experienced joy in her new life: “We saw Elaine became very independent and very proud of her independence,” [a caregiver] said. “She loved to shop at Wal-Mart and Kmart and the grocery store. One of her hobbies was to clip grocery coupons in the Sunday paper. She spent hours picking out greeting cards. She loved to visit people and have people come visit her. She was a very social person” (Henry, 2004).
Until her death in 2022, Lois Curtis also lived in the community and was an artist, pursuits that were not out of reach despite her diagnoses of developmental disability and schizophrenia – once her environment had adjusted to her needs. If you would like, you can see some of Curtis’s artwork [Website] at this link. Curtis gave one of her self-portraits to President Obama in a ceremony celebrating her advocacy in the Olmstead case (figure 3.16; Brandman, 2021). 
Figure 3.16 shows Lois Curtis, along with a support person, sharing a painting she created with President Barack Obama in the White House in 2011.
Asked in an interview, years later, what she would wish for all the people she had helped move out of the institution to live in their communities, Curtis responded:
“I hope they live long lives and have their own place. I hope they make money. I hope they learn every day. I hope they meet new people, celebrate their birthdays, write letters, clean up, go to friends’ houses and drink coffee. I hope they have a good breakfast every day, call people on the phone, feel safe (Curtis & Sanders, 2014).
Of course, the victory of Lois Curtis impacted all people with disabilities, but some also see particular meaning in a Black woman fighting for and establishing her right to choice and bodily autonomy. Watch this short video (figure 3.17) to hear that perspective from people who admire her legacy:
Figure 3.17 is a video clip honoring Lois Curtis for her contributions to the freedom of all people with disabilities, and especially people of color.
3.5.5 Enforcement of Disability Rights: Licenses and Attributions
“Enforcement of Disability Rights” by Anne Nichol is licensed under CC BY 4.0.
“Spotlight on Integration of People with Disabilities: the Olmstead Case” by Anne Nichol is licensed under CC BY 4.0.
Figure 3.13. Exposing Parchman by Roc Nation is licensed under the Standard YouTube License.
Figure 3.14. “Arizona prison facility” by Xugardust is licensed under CC BY-SA 2.0
Figure 3.15. “Ruth Bader Ginsburg 2016 portrait” by Steve Petteway is in the Public Domain
Figure 3.16. “Photo of Lois Curtis with President Barack Obama” by Pete Souza is in the Public Domain
Figure 3.17. Lois Curtis Documentary Trailer – 2023 Anniversary of Olmstead v. L.C. (Lois Curtis) by Bazelon Center is licensed under the Standard YouTube License.