A number of organizations and institutions in the United States have recognized that people with “invisible disabilities,” such as developmental or mental health disabilities, often face particular barriers when they encounter the criminal justice system.
For example, a position statement published by The Arc of the United States says, “People with intellectual and/or developmental disabilities (I/DD) have the right to justice and fair treatment in all areas of the criminal justice system and must be afforded the supports and accommodations required to make justice and fair treatment a reality.” However, they further state that individuals with intellectual and development disabilities, as either possible crime victims or as alleged perpetrators, are often:
- Unrecognized as having a disability so needed accommodations are not offered or received.
- Victimized at high rates.
- Denied redress because of stereotypes about their credibility or competence to be witnesses.
- Denied due process and fair representation.
- Discriminated against in sentencing, confinement, and release.
Like all other facilities covered by Title II of the Americans with Disabilities Act (ADA) 42 U.S.C. § 12132, correction and detention facilities are required to make their programs, services, and activities accessible. In the past, inmates with disabilities allege a wide variety of ADA violations at state and local correction and detention facilities. The three most common types of allegations involved are:
- Denial of access or unequal access to the facility’s programs and activities;
- Lack of effective communication for inmates who are Deaf or hard of hearing and those who are blind or have low vision; and
- Denial of access to disability-related medical services and devices.
Inmates who need to take medication to treat mental illness are also often excluded from drug treatment programs that are required to be eligible for parole, and are often segregated from the general prison population.
Protection and Advocacy for Persons with Disabilities in the Justice System
The National Disability Rights Network (NDRN) is the nationwide network of congressionally-mandated, legally-based disability rights agencies known as the Protection and Advocacy (P&A) System. P&A agencies in each state have the authority to provide legal representation and other advocacy services, under federal laws, to all people with disabilities. NDRN works on access to justice for people with disabilities, including reporting on developments addressing the unnecessary use and overuse of solitary confinement for people with mental health disabilities, especially youth with disabilities who are in juvenile or adult incarceration. Some individual state P&A agencies, such as Disability Rights Washington, also engage in their own statewide initiatives on the same topic. The Bazelon Center for Mental Health Law focuses on the ill treatment of people with mental health disabilities within the criminal justice system.
The United States Department of Justice, Office of Civil Rights, Special Litigation Section protects the rights of people in institutions run by state or local governments, and in private facilities receiving public money, including a jail, prison, or other correctional facility. Provisions under The Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997a, allow the U.S. Attorney General to review conditions and practices within institutions run by, or for, state and local governments. This Division in the Office of Civil Rights works closely with other parts of the Justice Department and other federal agencies that regulate, fund, and provide technical assistance to state and local governments. For example, they work with the Office of Juvenile Justice and Delinquency Prevention, the National Institute of Justice, the Bureau of Prisons and other agencies.
Under CRIPA, the Special Litigation Section has no authority to assist with individual claims and cannot correct a problem in a federal facility or actions by federal officials. They do not assist in criminal cases. The Division is authorized to commence an investigation upon reasonable belief that individuals confined in an institution may be subjected to a pattern or practice of unlawful conditions that deprives them of their constitutional or federal statutory rights. The Division provides details on their investigations in their 2016 Report to Congress. The Special Litigation Section also investigates ADA violations.
More resources on access to justice for people with disabilities can be found in the links below.