Prisoners with Disabilities, Margo Schlanger, University of Michigan Law School, 2017

Prisoners with Disabilities, Margo Schlanger, University of Michigan Law School, 2017

• Locations: United States of America • Topics: Disabled Prisoners, Americans with Disabilities Act, Inadequate Health Care Facilities

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University of Michigan Law School

University of Michigan Law School Scholarship Repository
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2017

Prisoners with Disabilities
Margo Schlanger
University of Michigan Law School, mschlan@umich.edu

Available at: https://repository.law.umich.edu/book_chapters/114

Follow this and additional works at: https://repository.law.umich.edu/book_chapters
Part of the Disability Law Commons, Health Law and Policy Commons, Law Enforcement and
Corrections Commons, and the Legislation Commons
Publication Information & Recommended Citation
Schlanger, Margo. "Prisoners with Disabilities." In Reforming Criminal Justice: Punishment, Incarceration, and Release, edited by E. Luna,
4, 295-323. Phoenix, AZ: Academy for Justice, 2017.

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Prisoners with Disabilities
Margo Schlanger*
A majority of American prisoners have at least one disability. So
how jails and prisons deal with those prisoners’ needs is central to
institutional safety and humaneness, and to reentry success or failure.
In this chapter, I explain what current law requires of prison and jail
officials, focusing on statutory and constitutional law mandating
non-discrimination, accommodation, integration, and treatment.
Jails and prisons have been very slow to learn the most general lesson
of these strictures, which is that officials must individualize their
assessment of and response to prisoners with disabilities. In addition,
I look past current law to additional policies that could improve
medical and mental-health care for prisoners with disabilities. What
is needed are programs that bridge the wall separating the inside
and outside of prison, with respect to record-keeping, personnel,
and finances; together, these have the potential to greatly improve
care, and the lives and prospects, of prisoners with disabilities.
INTRODUCTION
Most American prisoners have at least one disability. The most recent
national study, by the U.S. Department of Justice’s Bureau of Justice Statistics,
found that 10% report a mobility impairment, over 6% report that they are
deaf or low-hearing, and over 7% report that they are blind or low-vision
(uncorrectable with glasses). Depending on the facility and the definition, 4%
to 10% have an intellectual disability. And over half report symptoms that meet
the criteria for various mental illnesses; mania and depression predominate,
but 15% of state prisoners have symptoms of psychosis such as delusions or
hallucinations.1 Forty percent of prisoners have some kind of chronic medical
condition—diabetes, cancer, heart disease, high blood pressure, etc. All these
statistics are for post-conviction prisoners; in jails, which house both pretrial
detainees and post-conviction prisoners, the rates of disability are substantially
higher. Table 1 summarizes some of the data.
*
Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan.
Many thanks to the commentators at the Academy for Justice conference, and to Sam Bagenstos,
for helpful feedback. All errors are mine. I also wish to acknowledge the generous support of the
William W. Cook Endowment of the University of Michigan. This chapter may be copied and
distributed for free or at cost to students or prisoners. © 2017 Margo Schlanger.
1.
More generally, see Stephen J. Morse, “Mental Disorder and Criminal Justice,” in Volume
1 of the present Report.

295

296

Reforming Criminal Justice
Table
1: Estimates
Disability in
in Jails
Jails and
Table
1: Estimates
ofofDisability
andPrisons
Prisons

All

Prisons
Men Women

Vision
7.1% 7.1%
4
3
Hearing
6.2% 6.2%
5
4
Ambulatory
10.1% 9.9%
6
5
Chronic condition
41%
7
6
Age 65+
2.3% 2.3%
8
Intellectual
or developmental
4-10%
7
disability
9
Mental illness symptoms: All8 49% 48%
10
Mania9
43%
10
11
Major depression
23%
11
Psychotic disorder
15%

6.4%
5.3%
12.1%
1.2%

All

Jails
Men Women

7.3% 7.6% 5.1%
6.5% 6.6% 6.0%
9.5% 8.9% 13.5%
40%
NA
NA

62%

60% 59%
54%
30%
24%

70%

Some have even claimed that the massive run-up from the 1970s to the 1990s in

me haveprison
evenand
claimed
that thewas
massive
from
the 1970s to the 1990s in priso
jail population
largelyrun-up
the result
of “transinstitutionalization”—
pulation the
waseffect
largely
the result
of with
“transinstitutionalization”—the
housing p
of housing
people
mental illness in jails and prisonseffect
ratherof
than
ental illness in jails and prisons rather than mental hospitals.12 This is only partially
l and Stoll demonstrate persuasively that deinstitutionalization has made only a
2. contribution
JENNIFER BRONSON
ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, DISABILITIES
ely small
to the
prison population growth overall” (they estimate 4% t
A
13MONG PRISON AND JAIL INMATES, 2011-12, at 4–5 tbls.4 & 5 (2015), http://www.bjs.gov/content/
But as they note,
it
is incertainly
that “in
years past,”
“a sizable po
growth).pub/pdf/dpji1112.pdf.
The data
this surveythe
are case
self-reported
in response
to the following
14
“Hearing—Are
you deaf
do youbeen”
have serious
difficulty hearing? Vision—Are you
mentallyquestions:
ill behind
bars would
notorhave
jailed.
blindmean
or do you
havehow
serious
difficulty
evendeal
when wearing
glasses? Ambulatory—Do
e numbers
that
jails
and seeing
prisons
with disability
is far fromyou
a niche is
have serious difficulty walking or climbing stairs?”
choices3.relating
Id. to disability are central to the operation of U.S. incarcerative facili

4.
Id.
5.
Id. at 4–6 tbls.4-6 (“Chronic conditions include cancer, high blood pressure, strokerelated problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma,
ER BRONSON ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, DISABILITIES AMONG
and cirrhosis of the liver.”). I used the material in all three source tables to calculate the data in
L INMATES, 2011-12, at 4–5 tbls.4 & 5 (2015), http://www.bjs.gov/content/pub/pdf/dpji1112.pdf. The
text.
ey are self-reported
to the following questions: “Hearing—Are you deaf or do you have
6.
E. ANNinCresponse
ARSON, BUREAU OF STATISTICS, U.S. DEP’T OF JUSTICE, PRISONERS IN 2014, app. tbl.3
y hearing?(2015),
Vision—Are
you
blind
or do you have serious difficulty seeing even when wearing glasse
https://www.bjs.gov/content/pub/pdf/p14.pdf.
ory—Do7.you have
difficulty
walking
or climbing
stairs?”
JOAN serious
PETERSILLA
, DOING JUSTICE
? CRIMINAL
OFFENDERS
WITH DEVELOPMENTAL DISABILITIES 1
(2000), http://files.eric.ed.gov/fulltext/ED465905.pdf.
8.
See DORRIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
Msupra
ENTAL H
EALTH2,PROBLEMS
OF PRISON(“Chronic
AND JAIL INMATES
1, 4 (2006),
https://www.bjs.gov/content/
ON ET AL.,
note
at 4–6 tbls.4-6
conditions
include
cancer, high blood pressure, str
pub/pdf/mhppji.pdf.
The
data
in
the
table
are
for
state
prisoners
and
local jails;asthma,
this studyand
findscirrhosis o
roblems, diabetes, heart-related problems, kidney-related problems, arthritis,
a lower rate among federal prisoners.
I used the material in all three source tables to calculate the data in text.
9.
Id. at 1.
CARSON10.
, BUREAU
OF STATISTICS, U.S. DEP’T OF JUSTICE, PRISONERS IN 2014, app. tbl.3 (2015),
Id.
ww.bjs.gov/content/pub/pdf/p14.pdf.
11.
Id.

ETERSILIA, DOING JUSTICE? CRIMINAL OFFENDERS WITH DEVELOPMENTAL DISABILITIES 1 (2000),
es.eric.ed.gov/fulltext/ED465905.pdf.
RRIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, MENT

Prisoners with Disabilities

297

mental hospitals.12 This is only partially true—Raphael and Stoll demonstrate
persuasively that deinstitutionalization has made only a “relatively small
contribution to the prison population growth overall” (they estimate 4% to
7% of the growth).13 But as they note, it is certainly the case that “in years past,”
“a sizable portion of the mentally ill behind bars would not have been” jailed.14
The numbers mean that how jails and prisons deal with disability is far from
a niche issue. Rather, choices relating to disability are central to the operation
of U.S. incarcerative facilities—their safety and humaneness, and their success
or failure in facilitating the pro-social community reentry of prisoners who get
out. In this chapter, I begin by explaining what difference disability makes in jail
and prison—how disability affects prisoners’ lives and institutional operations.
I next explain how current law instructs prison and jail officials, focusing on
the Americans with Disabilities Act and constitutional requirements of nondiscrimination, accommodation, integration, and treatment. Jails and prisons
have been very slow to learn the most general lesson of these requirements,
which is that officials must individualize their assessment of and response to
prisoners with disabilities. I make some recommendations along these lines.
I also suggest that as a policy matter, individualization would be helpful not
just for prisoners with disabilities but for other prisoners, as well. That is,
lessons learned (or lessons that should be learned) in the disability arena could
fruitfully be applied more broadly.
The learning point works in converse, too; general lessons learned about
incarceration can and should be applied to prisoners with disabilities in
particular. For example, abundant evidence demonstrates that prisoners’
successful reentry—their transition to productive and pro-social lives in their
communities after release from jail and prison—is aided by programs that
bridge the separation of prison from the outside world. This broad insight has
specific application to prisoners with disabilities. Though the point is pertinent
in many ways, I focus in the chapter’s final section on its import for medical
and mental-health care, a very significant concern for people with disabilities.
To improve care, and the lives and prospects of prisoners with disabilities, what
is needed are bridging techniques addressing record-keeping, personnel, and
finances. I make some recommendations toward this end.
12.
For a literature review, see Dae-Young Kim, Psychiatric Deinstitutionalization and Prison
Population Growth: A Critical Literature Review and Its Implications, 27 CRIM. JUST. POL’Y REV. 3
(2016).
13.
Steven Raphael & Michael A. Stoll, Assessing the Contribution of the Deinstitutionalization
of the Mentally Ill to Growth in the U.S. Incarceration Rate, 42 J. LEGAL STUD. 187, 190 (2013).
14.
Id.

298

Reforming Criminal Justice

I write this chapter informed by scholarship, policy research, and advocacy
reports—the various sources cited, among others. But I bring to it, as well,
two decades of experience in prison and jail reform; investigating allegations
of civil-rights violations; collaborating with varied stakeholders on reform
standards;15 working with different prison and jail officials on reform efforts
in their facilities; and, most recently, monitoring the implementation of a
statewide settlement agreement in Kentucky governing policy and practice for
deaf and hard-of-hearing prisoners.16 The chapter’s recommendations thus
draw on both written and lived sources of knowledge.
I. WHY IS DISABILITY A CHALLENGE?
Incarceration isn’t easy for anyone. But sharply limited control over one’s
own routines and arrangements make life behind bars particularly difficult for
prisoners with disabilities. Prisoners with mobility impairments, for example,
“cannot readily climb stairs, haul themselves to the top bunk, or walk long
distances to meals or the pill line.”17 Prisoners who are old may “suffer from thin
mattresses and winter’s cold”18 but often cannot obtain a more comfortable
bed or an extra blanket. Prisoners who are deaf may not hear, and prisoners
with intellectual disabilities may not understand, the orders they must obey
under threat of disciplinary consequences that include extension of their term
of incarceration. And prisoners with intellectual disabilities may be unable to
access medical care or other resources and services, because officials require
written requests and they are illiterate.19
Moreover, many prisoners with either mental or physical disabilities face
grave safety threats. They may be vulnerable to extortion, exploitation, threats,
and physical and sexual abuse by other prisoners. Prisoners with mental
disabilities in particular may be “manipulated by other prisoners into doing

15.
See, e.g., AM. BAR ASS’N, STANDARDS FOR CRIMINAL JUSTICE: TREATMENT OF PRISONERS (2011).
16.
See Case Profile: Adams v. Kentucky, CIV. RTS LITIG. CLEARINGHOUSE, http://www.
clearinghouse.net/detail.php?id=13462 (last visited Apr. 3, 2017) (describing case and posting
monitoring reports).
17.
HUMAN RIGHTS WATCH, OLD BEHIND BARS: THE AGING PRISON POPULATION IN THE UNITED
STATES 4 (2012), https://www.hrw.org/sites/default/files/reports/usprisons0112webwcover_0.pdf.
18.
Id.
19.
See generally HUMAN RIGHTS WATCH, CALLOUS AND CRUEL: USE OF FORCE AGAINST INMATES WITH
MENTAL DISABILITIES IN US JAILS AND PRISONS (2015), https://www.hrw.org/report/2015/05/12/
callous-and-cruel/use-force-against-inmates-mental-disabilities-us-jails-and
(describing
neglect of and inappropriate use of force against prisoners with severe mental health problems).

Prisoners with Disabilities

299

things that get them into deep trouble.”20 As Hans Toch summarized, prisoners
with mental illness can be “disturbed and disruptive,” “very troubled and
extremely troublesome.”21 They are far more likely to be injured in a fight, and
to be disciplined for assault.22 In the words of prisoners’ rights advocate Jamie
Fellner, they may:
engage in symptomatic behavior that corrections staff find
annoying, frightening, and provocative, or which, in some cases,
can be dangerous. For example, they may refuse to follow orders to
sit down, to come out of a cell, to stop screaming, to change their
clothes, to take a shower, or to return a food tray. They may smear
feces on themselves or engage in serious self-injury—slicing their
arms, necks, bodies; swallowing razor blades, inserting pencils,
paper clips, or other objects into their penises. Sometimes prisoners
refuse to follow orders because hallucinations and delusions have
impaired their connection with reality. An inmate may resist being
taken from his cell because, for example, he thinks the officers want
to harvest his organs or because she cannot distinguish the officer’s
commands from what other voices in her head are telling her.23
Solitary confinement is a particular concern. Across the country,
constitutional litigation has led to orders excluding prisoners with serious
mental illness from solitary confinement.24 Nevertheless, people with mental
disabilities remain vastly overrepresented in prison and jail restrictive housing
units,25 because they are frequently difficult to manage in general population
20.
HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS 57
(2003), https://www.hrw.org/reports/2003/usa1003/usa1003.pdf (quoting TERRY KUPERS, PRISON
MADNESS: THE MENTAL HEALTH CRISIS BEHIND BARS AND WHAT WE MUST DO ABOUT IT 20 (1999)).
21.
CALLOUS AND CRUEL, supra note 19 (quoting Hans Toch, Humpty Dumpty in the Prison, 16
CORR. MENTAL HEALTH REP. 51 (2014)).
22.
See JAMES & GLAZE , supra note 8, at 1.
23.
CALLOUS AND CRUEL, supra note 19.
24.
For a compilation of extant orders, see Special Collection: Solitary Confinement, CIV. RTS.
LITIG. CLEARINGHOUSE, http://www.clearinghouse.net/results.php?searchSpecialCollection=40
(last visited Apr. 3, 2017).
25.
See ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: USE
OF RESTRICTIVE HOUSING IN U.S. PRISONS AND JAILS, 2011-12, at 6–7 (2015), http://www.bjs.gov/
content/pub/pdf/urhuspj1112.pdf (relating that prisoners with mental illness reported having
spent time in restrictive housing at about twice the rate of other prisoners); see also ASS’N OF
ST. CORR. ADM’RS & ARTHUR LIMAN PROGRAM AT YALE L. SCH., AIMING TO REDUCE TIME-IN-CELL:
REPORTS FROM CORRECTIONAL SYSTEMS ON THE NUMBERS OF PRISONERS IN RESTRICTED HOUSING AND ON
THE POTENTIAL OF POLICY CHANGES TO BRING ABOUT REFORMS 48–53 (2016), https://www.law.yale.
edu/system/files/area/center/liman/document/aimingtoreducetic.pdf (tracing the placement of
prisoners with a serious mental health issue in restrictive housing).

300

Reforming Criminal Justice

and because they often decompensate once in solitary and commit further
disciplinary infractions. Two decades ago, U.S. District Judge Thelton
Henderson emphasized the toxic effects of solitary confinement for inmates
with mental illness.26 In Madrid v. Gomez, a case about California’s Pelican Bay
prison, Judge Henderson wrote that isolated conditions in the Special Housing
Unit, or SHU, while not amounting to cruel and unusual punishment for
all prisoners, were unconstitutional for those “at a particularly high risk for
suffering very serious or severe injury to their mental health, including overt
paranoia, psychotic breaks with reality, or massive exacerbations of existing
mental illness.”27 Vulnerable prisoners included those with pre-existing mental
illness, intellectual disabilities, and brain damage.28 Henderson concluded
that “[f]or these inmates, placing them in the SHU is the mental equivalent
of putting an asthmatic in a place with little air to breathe.”29 Their resilience
compromised by their disability and the jail or prison’s unaccommodating
response to it, prisoners with mental illness face a much higher risk for suicide
both in and out of solitary confinement.30
Sometimes officials affirmatively discriminate against prisoners with
disabilities—bar them from programs or jobs,31 lock them down in their cells
or isolate them in an infirmary32 or administrative segregation housing,33 even
deny them parole as a matter of policy.34 For example, in Armstrong v. Brown,
26.
See Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
27.
Id. at 1265
28.
Id.
29.
Id.
30.
See, e.g., ILL-EQUIPPED, supra note 20, at 178.
31.
See, e.g., RACHAEL SEEVERS, AVID PRISON PROJECT, MAKING HARD TIME HARDER: PROGRAMMATIC
ACCOMMODATIONS FOR INMATES WITH DISABILITIES UNDER THE AMERICANS WITH DISABILITIES ACT 28
(2016), avidprisonproject.org/Making-Hard-Time-Harder/assets/making-hard-time-harder--pdf-version.pdf (describing involuntary status of “medically unassigned,” which barred
prisoners from programming necessary to earn credit towards early release).
32.
See id. at 35 (describing housing of inmates with serious medical conditions in a prison’s
infirmary, even though they were medically stable).
33.
See, e.g., AVID JAIL PROJECT, DISABILITY RIGHTS WASH., CRUEL BUT NOT UNUSUAL: SOLITARY
CONFINEMENT IN WASHINGTON’S COUNTY JAILS 14, 17 (2016), http://www.disabilityrightswa.org/
sites/default/files/uploads/CruelbutNotUnusual_November2016.pdf (noting that certain
county jails in Washington state “automatically” place individuals with physical disabilities or
mental illness in solitary confinement); see ACLU, CAGED IN: SOLITARY CONFINEMENT’S DEVASTATING
HARM ON PRISONERS WITH PHYSICAL DISABILITIES 6 (2017), https://www.aclu.org/sites/default/files/
field_document/010916-aclu-solitarydisabilityreport-single.pdf (“[P]risoners with disabilities
are placed into solitary confinement even when it serves no penological purpose. Corrections
officials have put prisoners with physical disabilities into solitary confinement because there
were no available cells that could accommodate them in a less restrictive environment.”).
34.
See SEEVERS, supra note 31, at 31.

Prisoners with Disabilities

301

U.S. District Judge Claudia Wilken held that the state was “regularly housing
[prisoners with mobility impairments] in administrative segregation due to
lack of accessible housing.”35 Physical barriers—steps, inaccessible cell features,
and the like—frequently exclude prisoners with disabilities from programs
and resources.36 But physical barriers are just the most visible example of
the key general problem: When the ordinary rules and ways of incarceration
hit prisoners with disabilities harder than others, prisons and jails fail to
accommodate their needs.
What is to be done? Four categories of intervention are needed: diversion,
accommodation, integration, and treatment (including discharge planning).
The first, diversion, is beyond the scope of this chapter, but it should be obvious
that one solution to the damage jail and prison cause people with disabilities is
to use alternative responses to their offending behavior, reserving incarceration
for when it is truly necessary.37 I address accommodation, integration, and
treatment below.
II. WHAT DOES THE LAW REQUIRE?
The welfare of prisoners with disabilities is protected by both the
Constitution and the two principal federal disability anti-discrimination
statutes, the Rehabilitation Act and the Americans with Disabilities Act (ADA).
Taken together, the requirements are robust: prison and jail officials must avoid
discrimination; individually accommodate disability; maximize integration
of prisoners with disabilities with respect to programs, service, and activities;
and provide reasonable treatment for serious medical and mental-health
conditions. In this section, my interspersed recommendations, accordingly, are
consistent with existing law—at least a muscular reading of existing law.

35.
Order Granting Motion for Further Enforcement, Armstrong v. Brown, No. 94-cv-2307,
2015 WL 496799 (N.D. Cal. Feb. 3, 2015), http://www.clearinghouse.net/chDocs/public/PCCA-0001-0040.pdf.
36.
See, e.g., SEEVERS, supra note 31, at 19 (architectural barriers in Alabama prisons), 29
(specialized residential trauma treatment for New York women prisoners in a room reachable
only via stairs), 32 (Iowa chapel and auditorium accessible only via stairs), 34 (New York
commissary in inaccessible building).
37.
See, e.g., REBECCA VALLAS, CTR. FOR AM. PROGRESS, DISABLED BEHIND BARS: THE MASS
INCARCERATION OF PEOPLE WITH DISABILITIES IN AMERICA’S JAILS AND PRISONS (2016), https://cdn.
americanprogress.org/wp-content/uploads/2016/07/15103130/CriminalJusticeDisabilityreport.pdf. For a discussion of diversion, see Michael Tonry, “Community Punishments,” in the
present Volume.

298

Reforming Criminal Justice

Prisoners with Disabilities

303

provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.43
The key source for understanding what constitutes disability discrimination
is the ADA’s Title II regulations; as legislative regulations, these are entitled to
substantial deference.44 Most simply, discriminating against prisoners “because
of ” their physical disability, serious mental illness, or intellectual disability,
violates the statutory ban against disparate treatment. The ADA regulations
explain that public entities must afford qualified people with disabilities the
same opportunity as non-disabled people to benefit from the entity’s services.
This means a prison or jail may not, because of an inmate’s disability, deny the
inmate the “opportunity to participate” in a service offered to other inmates,
may not provide an alternative service “that is not equal to that afforded
others,” and must provide aids, benefits, or services that would enable the
inmate to “gain the same benefit, or to reach the same level of achievement
as that provided to others.”45 A prison violates this regulation, for example, if
simply because of their disability, it excludes prisoners with disabilities from
a program or assigns prisoners with disabilities to segregation cells—where
prisoners are denied most prison privileges, programs, activities, and services.
As described in Part I, this kind of discrimination is far from unheard of.46
There are, however, defenses. Prison and jail officials can exclude a prisoner
with a disability from a program, service, or activity if the exclusion is
“necessary for the safe operation of its services, programs, or activities.”47 Safety
requirements must, however, be “based on actual risks, not on mere speculation,
stereotypes, or generalizations about individuals with disabilities.”48 Similarly,
43.
42 U.S.C. § 12131(2).
44.
See 42 U.S.C. § 12134(a); see also Olmstead v. L.C., 527 U.S. 581, 597–98 (1999) (“Because
the Department is the agency directed by Congress to issue regulations implementing Title II,
... its views warrant respect. We need not inquire whether the degree of deference described in
[Chevron] is in order.”). ADA regulations are also consistent with—but newer, more detailed,
and sometimes stricter than—Rehabilitation Act regulations. See 42 U.S.C. § 12201(a) (“nothing
in this chapter shall be construed to apply a lesser standard than the standards applied under
title V of the Rehabilitation Act of 1973 [29 U.S.C. §§ 790 et seq.] or the regulations issued by
Federal agencies pursuant to such title”); 42 U.S.C. § 12134(b) (“regulations ... shall be consistent
with ... the coordination regulations under part 41 of title 28, Code of Federal Regulations (as
promulgated by the Department of Health, Education, and Welfare on Jan. 13, 1978), applicable
to recipients of Federal financial assistance under section 794 of Title 29.”).
45.
28 C.F.R. § 35.130(b)(1).
46.
See supra notes 32-36 and accompanying text.
47.
28 C.F.R. § 35.130(h).
48.
Id.

304

Reforming Criminal Justice

government officials may exclude prisoners with disabilities from programs
“when that individual poses a direct threat to the health or safety of others.”49
But the Supreme Court has emphasized that under the ADA, “direct threat
defense[s] must be ‘based on a reasonable medical judgment that relies on
the most current medical knowledge and/or the best available objective
evidence.’”50 And correspondingly, the regulation again requires substantial
individualization:
In determining whether an individual poses a direct threat to
the health or safety of others, a public entity must make an
individualized assessment, based on reasonable judgment that
relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures or the provision of auxiliary aids or services will
mitigate the risk.51
Thus the ADA’s general ban on disparate treatment has a safety valve—but
the safety valve is not satisfied by generalized concern about the abilities or
risks of prisoners with disabilities. Disparate treatment is lawful only where
participation in a particular program by a particular prisoner with disabilities
raises particular—individualized, and proven not assumed—safety risks to
others, and only where those risks cannot be mitigated by some kind of tailored
modification of the program’s policies, practices, or procedures.
This kind of individualization does not come easily to prisons and jails.
Rules behind bars tend to be inflexible. Prisons and jails are mass institutions,
and it’s easier for them to implement simple rules, without either case-by-case
or more formalized exceptions. Officials occasionally emphasize that special
treatment can provoke hard feelings and even violence by other prisoners. But
in my experience, inflexibility is often an automatic rather than thoughtful
response to a request. In any event, prisons and jails are not left to their own
preferences with respect to the general choice of how much individualization is
appropriate. The ADA insists on a high degree of particularization.

49.
28 C.F.R. § 35.139(a).
50.
Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 86 (2002); see also Bragdon v. Abbott,
524 U.S. 624, 649 (1998) (“[T]he risk assessment must be based on medical or other objective
evidence.”).
51.
28 C.F.R. § 35.139(b).

Prisoners with Disabilities

305

RECOMMENDATION: Jail and prison officials should not exclude
prisoners with disabilities from particular housing units, jobs, or any other
programs absent an individualized finding that a prisoner’s participation
poses significant safety risks that cannot be mitigated.
B. THE REQUIREMENT OF REASONABLE MODIFICATION AND
EFFECTIVE COMMUNICATION
Notwithstanding the misgivings of prison and jail officials, the Rehabilitation
Act and the ADA require even more individualization52 under the conceptual
category of “reasonable modification”—the ADA Title II’s (and Title III’s)
equivalent of the more familiar “reasonable accommodation” requirement in
Title I of the ADA, which addresses employment discrimination.53 The Title II
ADA regulations state:
A public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.54
A failure to implement a reasonable modification needed by a person with a
disability is a type of discrimination; under the ADA, a prison must “take certain
pro-active measures to avoid the discrimination proscribed by Title II.”55
In addition, both the Rehabilitation Act and the ADA’s regulations require
prisons and jails to “take appropriate steps to ensure that communications
with … participants … are as effective as communications with others.”56
The effective-communication mandate protects prisoners with a variety of
communication-impairing disabilities—among them, blindness or low vision,
deafness or low hearing, and speech impediments. It cashes out as a requirement
for provision of “auxiliary aids and services”57—interpreters, computer-aided
52.
See, e.g., Wright v. N.Y. St. Dep’t of Corr., 831 F.3d 64, 78 (2d Cir. 2016) (“Title II of the
ADA, therefore, requires that once a disabled prisoner requests a non-frivolous accommodation,
the accommodation should not be denied without an individualized inquiry into its
reasonableness.”).
53.
See 42 U.S.C. § 12111(8)–(9).
54.
28 C.F.R. § 35.130(b)(7)(i). The separate requirement of program accessibility has a
similar defense that no “fundamental alteration in the nature of the service, program or activity
or ... undue financial or administrative burdens” are required. 28 C.F.R. § 35.150(a)(3).
55.
Chisolm v. McManimon, 275 F.3d 315, 324–25 (3d Cir. 2001); see also Tennessee v. Lane,
541 U.S. 509, 529 (2004) (describing the reasonable modification requirement as prophylactic).
56.
28 C.F.R. § 35.160(a)(1); 28 C.F.R. § 39.160(a); 28 C.F.R. 42.503(e).
57.
28 C.F.R. § 35.160.

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transcription services, assistive listening systems, open and closed captioning,
various telephonic communications devices for the deaf, videophones, visual
and other non-auditory alert systems, and more.
Federal case law has emphasized that the application of disability-rights law
in the prison setting must take account of “[s]ecurity concerns, safety concerns,
and administrative exigencies.”58 Even so, both reasonable modification and
effective communication are robust and broadly relevant requirements.
Consider a list of potential problems and ADA-required solutions:
• A prisoner with a mobility impairment cannot walk quickly enough
to get to meals on time. Potential modifications: house the prisoner
closer to the chow hall; allow additional time for movement and/or
meals; if the prisoner uses a wheelchair, provide an aide to push it.
• In a prison that provides indigent prisoners with paper and stamps
for letters home, a prisoner with an intellectual disability cannot write
such letters because he is illiterate. Potential modifications: allow (and
equally subsidize) communication by voice recordings or phone;
provide a writer/reader (of his choice) to assist him.
• Successful completion of substance-abuse programming is persuasive
evidence of rehabilitation in parole hearings, and requires academictype coursework a prisoner with a learning disability cannot manage.
Potential modifications: provide tutoring or one-on-one instruction.
• Announcements are made over an audio intercom that deaf and hardof-hearing prisoners cannot understand. Potential modifications: a
non-auditory alert system (vibrating pager, or strobe lights); housing a
mildly hearing impaired prisoner in a quiet unit, where ambient noise
poses less of an obstacle.
• Prison jobs are either required or offer prisoners compensation,
but many of the jobs include tasks that a prisoner with a mobility
impairment cannot perform. Potential modification: adjust job tasks
or provide adaptive equipment to allow the prisoner to do the job.
Anyone familiar with disability law outside of prison would consider these
run-of-the-mill accommodations. Similar responses to disability are regularly
sought from, and granted by, employers and non-incarcerating government
agencies. And yet, observers report—and my own experience confirms—that
27 years after the ADA’s passage, prisons and jails do not yet fully understand
that this kind of individualization is required by law. When prisoners seek these
58.

Love v. Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996).

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than an occasion for force or discipline.61 Thus far, these kinds of claims have
been raised only occasionally. Nonetheless, anti-discrimination remedies along
these lines have been incorporated in the dozen or so major solitary-confinement
settlements in recent years.62 In addition, there is some, albeit limited, support
in federal district court opinions: In a couple of cases, district courts have held
that the ADA requires modification of disciplinary procedures.63 Similarly,
at least one court has held that administrative classification processes used
to put prisoners into solitary confinement must be reasonably modified to
take account of the needs of prisoners with disabilities.64 And finally, a recent
district court opinion accepted a reasonable-modification argument seeking
greater access for prisoners with disabilities to a solitary confinement “stepdown” program.65
61.
See, e.g., Private Settlement Agreement at 12, Disability Advocates, Inc. v. N.Y. St. Off.
of Mental Health, No. 1:02-cv-04002-GEL (S.D.N.Y. Apr. 27, 2007), http://www.clearinghouse.
net/chDocs/public/PC-NY-0048-0002.pdf; Settlement Agreement and General Release at 16,
Disability Rights Network of Pa. v. Wetzel, No. 1:13-cv-00635-JEJ (M.D. Pa. Jan. 9, 2015), http://
www.clearinghouse.net/chDocs/public/PC-PA-0031-0003.pdf.
62.
See, e.g., supra note 61. For a more complete timeline listing and linking to the key cases,
and their settlements, see Amy Fettig & Margo Schlanger, Milestones in Solitary Reform, SOLITARY
WATCH, http://solitarywatch.com/resources/timelines/milestones/ (last visited Apr. 3, 2017); and
for court documents, see Special Collection: Solitary Confinement, CIV. RTS. LITIG. CLEARINGHOUSE,
http://www.clearinghouse.net/results.php?searchSpecialCollection=40 (last visited Apr. 3,
2017).
63.
See Scherer v. Pa. Dep’t of Corr., No. 3:04-cv-00191-KRG, 2007 WL 4111412, at *44 (W.D.
Pa. Nov. 16, 2007) (because the prisoner’s misconduct may have been a result of his mental
illness, “the lack of modification of its disciplinary procedures to account for ... [his] mental
illness ... possibly resulted in a violation of Title II of the ADA.”); Purcell v. Pa. Dep’t of Corr., No.
3:00-CV-00181-LPL, 2006 WL 891449, at *13 (W.D. Pa. Mar. 31, 2006) (finding a genuine issue of
material fact as to whether a “reasonable accommodation” was denied when the Department of
Corrections refused to circulate a memo to the staff concerning a prisoner’s Tourette’s Syndrome
to explain that some of his behaviors were related to his condition, not intentional violations of
prison rules).
64.
See Biselli v. Cty. of Ventura, No. 09-cv-08694 CAS (Ex), 2012 U.S. Dist. LEXIS 79326,
at *44–45 (C.D. Cal. June 4, 2012) (placement in administrative segregation based on conduct
specifically linked to mental illness, without input from mental health staff, may constitute a
violation of the ADA).
65.
See Sardakowski v. Clements, No. 12-cv-01326-RBJ-KLM, 2013 WL 3296569, at *9 (D.
Colo. July 1, 2013) (rejecting a motion to dismiss for failure to state a claim given plaintiff ’s
argument “that he has been unable to complete the requirements of the leveling-out program
successfully because of his mental impairment and because CDOC officials have prevented him
from obtaining adequate treatment and accommodation so that he may progress out of solitary
confinement”); see also Reporter’s Transcript: Hearing on Motion for Summary Judgment and
Final Trial Preparation Conference at 41, Sardakowski v. Clements, No. 12-cv-01326-RBJ-KLM
(D. Colo. Feb. 25, 2014), http://www.clearinghouse.net/chDocs/public/PC-CO-0024-0002.pdf
(rejecting defendants’ motion for summary judgment on the same claim).

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Still, implementation of this kind of individualized approach to housing
and discipline remains rare. I don’t think jails’ and prisons’ reluctance to
embrace individualized approaches to housing and discipline, or to operations
more generally, can be justified doctrinally. True, the ADA’s obligation to
make “reasonable modifications in policies, practices, or procedures” is not
unbounded; a modification is not required if it would “fundamentally alter the
nature of the service, program, or activity.”66 The nature of the requested change
matters. As in so many situations, whether it is considered “fundamental” turns
in part on the level of generality used to describe the program and its “essential
aspect[s].”67 Is the essence of solitary confinement its restrictive nature, or that
it adequately safeguards safety and security? Is the essence of prison discipline
that it punishes misconduct, or that it punishes culpable misconduct? And so
on. But again, the ADA pushes towards individualization and flexibility. The
very idea that some aspects of a program or policy are fundamental—but others
are not—means that prisoner restrictions that have been treated as irrevocably
bound together are conceptually untied. And the assertion of the defense—that
a particular change to a prison policy or practice a prisoner with a disability
seeks is a fundamental alteration that a prison is not required to undertake,
rather than a reasonable modification that it must—puts the onus on the jail
or prison to justify why it cannot make a requested change, if not for everyone,
than for this particular disabled prisoner. As Professors Brittany Glidden and
Laura Rovner summarized the point, “Because the accommodations should
be specific and individualized, prison officials must demonstrate why in each
case the particular prisoner cannot receive the requested services. As a result,
it becomes more difficult for the prison to rely on generalized assertions of
‘safety’ to support the deprivations and instead forces an articulation of the
reason for the particular condition.”68
Constitutional requirements may frequently also play a role. True, the
requirement of reasonable modification is not itself constitutional in stature.
The Supreme Court explained in Board of Trustees v. Garrett that the Equal
Protection Clause does not require states “to make special accommodations
for the disabled, so long as their actions toward such individuals are rational.”69
However, when reasonable modification to a prison policy or practice is
necessary to avoid serious harm to a prisoner, both the Eighth Amendment’s
Cruel and Unusual Punishments Clause (for convicted prisoners) and the
66.
28 C.F.R. § 35.130(b)(1)(7)(i).
67.
See PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 (2001).
68.
Brittany Glidden & Laura Rovner, Requiring the State to Justify Supermax Confinement for
Mentally Ill Prisoners: A Disability Discrimination Approach, 90 DENV. U. L. REV. 55, 69 (2012).
69.
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).

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Fourteenth Amendment’s Due Process Clause (for pretrial detainees) compel
such modification. Under both, government officials must “respond[]
reasonably to … risk[s]”70 to prisoners, where those risks threaten the “minimal
civilized measure of life’s necessities.”71 This obligation includes, for example,
nutrition, sanitation, large-muscle exercise, and protection from harm by
other prisoners. So if some overarching prison policy or practice, applicable
to prisoners with and without disabilities alike, poses an obstacle to a prisoner
with a disability getting enough food, or living in sanitary conditions, or
avoiding assaults by other prisoners, modification of that policy is required not
just by the ADA but also by the Constitution.72
RECOMMENDATION: Jail and prison officials should embrace the
ADA’s requirement of individualized modifications to policies and practices
when useful for prisoners with disabilities’ equal participation in and access
to services.
C. THE INTEGRATION MANDATE
The ADA regulations include a provision, usually termed the “integration
mandate,” that directs that “A public entity shall administer services, programs,
and activities in the most integrated setting appropriate to the needs of qualified
individuals with disabilities.”73 The regulation that deals specially with program
access in prisons and jails adds some detail to this general mandate. It provides,
in pertinent part:
(b)(2) Public entities shall ensure that inmates or detainees with
disabilities are housed in the most integrated setting appropriate
to the needs of the individuals. Unless it is appropriate to make an
exception, a public entity—
(i) Shall not place inmates or detainees with disabilities in
inappropriate security classifications because no accessible cells or
beds are available;
(ii) Shall not place inmates or detainees with disabilities in
designated medical areas unless they are actually receiving medical
care or treatment; [and]
(iii) Shall not place inmates or detainees with disabilities in
70.
Farmer v. Brennan, 511 U.S. 825, 844 (1994).
71.
Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
72.
Cf. United States v. Georgia, 546 U.S. 151, 157 (2006) (“Goodman’s claims for money
damages against the State under Title II were evidently based, at least in large part, on conduct
that independently violated” the Cruel and Unusual Punishments Clause).
73.
28 C.F.R. § 35.130(d).

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behavior with solitary confinement rather than less harsh housing assignments
and services. In Olmstead v. L.C., the Supreme Court required states to
deinstitutionalize people with disabilities who had been unjustifiably assigned
to receive various state-provided services in segregated institutions rather than
in the community.80 In prison or jail, when solitary confinement is triggered by
a prisoner’s disability (and resulting conduct), that means that prison services
are provided in a setting that lessens the prisoner’s contact with other, nondisabled prisoners. This is “segregated” not only in the way the term is used in
prison, but also in the way the term is used in the Olmstead opinion to describe
civil institutionalization, which the Court held can be a form of unlawful
discrimination.81
The ADA’s integration mandate presumes that such segregation is harmful.
That is, the regulation itself bans an under-justified decision to isolate
people with disabilities from other, non-disabled people; plaintiffs need not
demonstrate how that decision hurts them. In addition, a decade of litigation
under Olmstead in other settings has established that the solution for violations
of the integration mandate is the provision of services in integrated settings
that avoid the need to segregate.82 For example, in United States v. Delaware,
an Olmstead settlement between the DOJ and the state of Delaware required
statewide crisis services to “[p]rovide timely and accessible support to
individuals with mental illness experiencing a behavioral health crisis, including
a crisis due to substance abuse.”83 The settlement detailed numerous items that
would form a “continuum of support services intended to meet the varying
80.
527 U.S. 581 (1999). For more on Olmstead and its implementation, see U.S. DEP’T OF
JUSTICE, CIV. RTS. DIV., STATEMENT OF THE DEPARTMENT OF JUSTICE ON ENFORCEMENT OF THE INTEGRATION
MANDATE OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND OLMSTEAD V. L.C. (2011), http://
www.ada.gov/olmstead/q&a_olmstead.pdf.
81.
Olmstead, 527 U.S. at 598. The plaintiffs in California’s Coleman litigation, a class action
on behalf of prisoners with serious mental illness, have made the fullest version of this argument.
See Notice of Motion & Motion for Enforcement of Court Orders & Affirmative Relief Re:
Improper Housing & Treatment of Seriously Mentally Ill Prisoners in Segregation, Coleman
v. Brown, 2:90-cv-00520-LKK-JFM (E.D. Cal. May 6, 2013), http://www.clearinghouse.net/
chDocs/public/PC-CA-0002-0066.pdf; Plaintiffs’ Post-Trial Brief Regarding Enforcement of
Court Orders and Affirmative Relief Regarding Improper Housing and Treatment of Seriously
Mentally Ill Prisoners in Segregation, Coleman v. Brown, 2:90-cv-00520-LKK-DAD (E.D. Cal.
Jan. 21, 2014), http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0065.pdf. In the end,
the District Court did not address the argument, ruling entirely on constitutional grounds.
Coleman v. Brown, 28 F. Supp. 3d 1068 (E.D. Cal. 2014).
82.
See generally Samuel R. Bagenstos, The Past and Future of Deinstitutionalization Litigation,
34 CARDOZO L. REV. 1 (2012).
83.
Settlement Agreement at 3, United States v. Delaware, 1:11-cv-00591-LPS (D. Del. July 6,
2011), http://www.clearinghouse.net/chDocs/public/PB-DE-0003-0002.pdf.

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needs of individuals with mental illness.”84 This included Assertive Community
Treatment teams—multidisciplinary groups “including a psychiatrist, a nurse,
a psychologist, a social worker, a substance abuse specialist, a vocational
rehabilitation specialist and a peer specialist”—to “deliver comprehensive,
individualized, and flexible support, services, and rehabilitation to individuals
in their homes and communities,” and various kinds of case management.85 And
it provided for “an array of supportive services that vary according to people’s
changing needs and promote housing stability” and “integrated opportunities
for people to earn a living or to develop academic or functional skills.”86 Other
Olmstead decrees contain similar provisions.87
The Delaware settlement and other Olmstead cases provide a very helpful
model for how prisons could comply with the integration mandate, managing
the needs of prisoners with disabilities to keep them out of the segregated
solitary-confinement setting. The possibilities are broad: provision of coaching
and mental-health treatment and other supports, perhaps assignment to a oneperson cell to minimize intra-cell conflict, and many more.
RECOMMENDATION: Prisons and jails should avoid separating
prisoners with disabilities from other prisoners, and should implement
supports helpful to avoid the need for such separation, including coaching,
mental-health treatment, single cells where useful, and others.
D. KEY FEATURES OF IMPLEMENTATION PROCESSES
As I’ve already argued, individualization and integration do not come
naturally to jails and prisons—total institutions that prefer standardized to
singular treatment. It may be helpful, then, to explore briefly how a jail or
prison could maximize its ability to implement the recommendations I’ve just
made by using four procedural components: interaction with the prisoner,
notice to the prisoner of available services and accommodations, structured
consideration, and concentrated development of expertise and responsibility.
Because disability-related needs are so varied, disability-rights statutes
often require what is often called an “interactive process” for the development
of accommodations. The ADA’s Title I (employment) regulation urges
that an “informal, interactive process” “may be necessary” to “identify the
84.
Id. at 6.
85.
Id. at 5–6.
86.
Id. at 7–8.
87.
See Special Collection: Olmstead Cases, CIV. RTS. LITIG. CLEARINGHOUSE, http://www.
clearinghouse.net/results.php?searchSpecialCollection=7 (last visited Apr. 3, 2017) (listing
cases).

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precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.”88 The EEOC’s
guidance explains that the procedure should be “flexible [and] interactive” and
should “involve[] both the employer and the [employee] with a disability.”89
And, as one federal appellate court has explained, this approach is not
“especially burdensome.” The idea is simply to:
meet with the employee who requests an accommodation,
request information about the condition and what limitations
the employee has, ask the employee what he or she specifically
wants, show some sign of having considered employee’s request,
and offer and discuss available alternatives when the request is too
burdensome.90
Similarly, the Individuals with Disabilities Education Act (IDEA) requires
that a child’s individualized education program be developed in a process
that is calculated to understand the child’s needs and goals, and that includes
his or her parents.91 Particularly under the IDEA, part of the process is
providing information to the parent on rights and available services and
accommodations.92
ADA Title II’s regulations do not include “interactive process” language,
but courts have nonetheless imported the approach, which is sensibly geared
toward assessing individualized needs and solutions.93 In a prison or a jail, an
interactive process has two advantages. First, it involves the prisoner, who is
best equipped to know his own needs and circumstances. Second, it structures
a focused consideration of the disability issues—the situation, the potential
solutions, and their pros and cons.
It’s useful to designate who as well as what the process includes. Disability
accommodation requires knowledge of what the law requires—the content of
the sections preceding this one. Equally important, it requires knowledge of
multiple technologies and techniques. Take a relatively easy question: What
can be done to provide access to telephone communication to a prisoner who
is too hard of hearing to use a regular phone, but who doesn’t sign? To answer
88.
29 C.F.R. § 1630.2(o)(3).
89.
29 C.F.R. pt. 1630, App.
90.
Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 162 (3d Cir. 1999).
91.
20 U.S.C. § 1414(d)(1)(B).
92.
On parental involvement in the IEP process in general, see MARK C. WEBER, SPECIAL
EDUCATION LAW AND LITIGATION TREATISE § 5.2 (citing 34 C.F.R. §§ 300.343(c)(iii), 300.346(a)(1)
(i), 300.346(b)).
93.
See, e.g., Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002).

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kinds of reasonable modifications, prison and jail officials frequently deny the
request simply by pointing to the general rule.
An example from my work as a settlement monitor illustrates the point.
A deaf prisoner, who communicated using sign language, faced disciplinary
sanctions for assaulting a correctional officer. As required by the settlement
agreement I was monitoring, the prison made arrangements for signlanguage interpretation for him. This was accomplished using video remote
interpretation—a video communication setup where the remote sign-language
interpreter hears the person speaking through a computer microphone, and
signs the interpretation to the deaf listener, and vice versa. In this case, however,
the inmate had been assigned “max assault status”—which meant that
whenever he was out of his cell, prison rules required him to be handcuffed,
rendering him unable to sign. Rather than altering the restraint rule, prison
officials conducting the hearing asked him only yes or no questions, so he
could nod or shake his head to respond. My intervention was simply to ask
the warden if there was some way to safeguard everyone’s safety but also
provide the prisoner effective communication. The warden and his staff
quickly developed such a method; the prisoner’s belly chain was tethered to a
bolt in a wall, so he couldn’t move very far; under those conditions, everyone
was comfortable unhandcuffing him. This accommodation allowed him to
access both interpretation for various communication needs and also to use a
videophone. It was not expensive or difficult; it merely required individualized
consideration.
Accommodation failures seem to me even more prevalent with respect to
less familiar accommodations that have fewer analogues outside of jail and
prison. Along these lines, I have argued in prior work that the ADA’s reasonablemodification requirement compels individualization with respect to disciplinary
and restrictive housing policy. For example, the ADA’s reasonable-modification
mandate, properly understood, compels jail and prison officials to take account
of mental illness or intellectual disability in making housing decisions, which
often assign disabled prisoners to double cells in which conflict and violence
are likely.59 It forbids use of solitary confinement as a routine management
technique to cope with the difficulties presented by prisoners with disabilities.60
And it requires jails and prisons to treat behavior that manifests serious mental
illness or intellectual disability as a mental-health or habilitation matter, rather
59.
60.

See, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1221 (N.D. Cal. 1995).
See U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE STATE CORRECTIONAL INSTITUTION AT CRESSON
AND NOTICE OF EXPANDED INVESTIGATION 1, 32–33 (2013), https://www.justice.gov/crt/about/spl/
documents/cresson_findings_5-31-13.pdf.

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obtain external treatment.97 In addition, the ADA and Rehabilitation Act
require, at the very least, elimination of obstacles to treatment: As the Supreme
Court noted in Pennsylvania Department of Corrections v. Yeskey, medical care
is among the “services, programs, or activities” encompassed by the statutory
text.98 The Court confirmed the point in United States v. Georgia, when it
deemed “quite plausible” the plaintiff ’s claim that “deliberate refusal of prison
officials to accommodate [his] disability-related needs in such fundamentals
as mobility, hygiene, medical care, and virtually all other prison programs
constituted ‘exclu[sion] from participation in or … den[ial of] the benefits of ’
the prison’s ‘services, programs, or activities.’”99
But the statutory disability claims may reach further. After all, without
treatment, prisoners with both physical and mental disabilities are more
likely to run into trouble of various kinds, leading them to disciplinary or
administrative exclusions from facility programs, services, and activities. A
prisoner who needs but does not have a hearing aid may face disciplinary
consequences for noncompliance with directives he cannot hear—and will
certainly be unable to benefit from many programs. The latter is also true for a
prisoner whose abilities are compromised by an untreated chronic illness. The
ADA and Rehabilitation Act don’t require most government entities to provide
medical care. But it seems to me a plausible argument that in prison and jail,

97.
See Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999) (“[T]he state must
provide an outgoing prisoner who is receiving and continues to require medication with a supply
sufficient to ensure that he has that medication available during the period of time reasonably
necessary to permit him to consult a doctor and obtain a new supply.”); Lugo v. Senkowski, 114
F. Supp. 2d 111, 115 (N.D.N.Y. 2000) (“The State has a duty to provide medical services for an
outgoing prisoner who is receiving continuing treatment at the time of his release for the period
of time reasonably necessary for him to obtain treatment on his own behalf.”); see also Brad H. v.
City of New York, 712 N.Y.S.2d 336 (Sup. Ct. 2000), order aff ’d, 716 N.Y.S.2d 852 (Sup. Ct. App.
Div. 2000) (similar outcome under state law).
98.
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).
99.
United States v. Georgia, 546 U.S. 151, 157 (2006) (alterations in original).

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where medical and mental-health care are among the services provided, denial
of particular treatments needed by people with disabilities also constitutes
actionable discrimination.100
In any event, the resulting recommendation is a simple one to state, though
complex to comply with:
RECOMMENDATION: Jails and prisons should provide appropriate
intake assessment, treatment, and discharge planning for the medical and
mental-health needs of people with disabilities.
F. THE LARGER LESSON
It’s not only prisoners with disabilities who can benefit from individualization.
I’ve just argued, for example, that a prisoner with an intellectual disability that
renders him illiterate, and therefore unable to take advantage of subsidies for
letters home, should receive an accommodation—subsidized phone calls, a
reader/writer, or something similar. Such an accommodation is equally useful
to any prisoner who is illiterate, even if he does not have an intellectual disability.
Likewise, for anyone who is in segregated housing because of a security risk, it
only makes sense for prison officials to limit the restrictions to what is actually
necessary. There’s no reason, for example, to restrict access to phone calls, books,
or television for a prisoner temporarily locked down because of threats against
her. Even when the ADA is not requiring the more individualized approach,
it’s sensible to unbundle the potential privilege restrictions and apply only the
ones that are necessary.
III. BRIDGING THE PRISON WALLS
Abundant evidence demonstrates that prisoners’ successful reentry—their
transition to productive and pro-social lives in their communities after release
from jail and prison—is aided by programs that bridge the walls that separate
100. See, e.g., Plaintiff’s Response to Motion for Summary Judgment, Anderson v. Colorado, No.
10-cv-01005-WYD-KMT (D. Colo. July 21, 2011), http://www.clearinghouse.net/chDocs/public/
PC-CO-0017-0006.pdf; Plaintiff’s Trial Brief, Anderson v. Colorado, No. 10-cv-01005-WYD-KMT
(D. Colo. Apr. 23, 2012), http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0007.pdf.
In these pleadings, the plaintiff argued that the ADA and Rehabilitation Act barred the prison’s
“refus[al] to provide the reasonable accommodation (in the form of treatment and medication)
necessary to permit Mr. Anderson to be integrated with other prisoners,” and, in the alternative,
that “if—even with proper medication and treatment—his mental illness requires that he be kept
in ad seg, he is qualified for a number of programs and benefits that he is now being denied based
solely on that placement. Because that is tantamount to denying him these programs and benefits
based on his disability, it constitutes illegal discrimination under the ADA and RA.” Plaintiff’s
Response to Motion for Summary Judgment, supra, at 42. The court denied these claims on the
facts. Anderson v. Colorado, 887 F. Supp. 2d 1133, 1146–48 (D. Colo. 2012).

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prison from the outside world. We know that effective reentry planning “starts
on the inside and continues upon release.”101 Among the most effective bridging
methods is when “[t]he same re-entry planner or case manager works with the
detainee on the inside and on the outside and serves as an advocate for his
successful re-entry.”102 Mentor programs often use a similar strategy; mentors
begin working with prisoners prerelease, and continue through a reentry
period.103
This broad insight has specific application to prisoners with disabilities
and their medical and mental-health care. To improve care, and the lives
and prospects of prisoners with disabilities, what is needed are wall-bridging
techniques addressing record-keeping, personnel, and finances. The idea is not
complicated. If jail and prison health care could be integrated with community
health care in these three arenas, the result would not be merely improved
health behind bars but improved community health.
1. Health records
Transitions are a dangerous time for health services. At hospitals, the most
dangerous hours of the day are the shift changes. For prisoners with acute
health needs, one dangerous time is arrival at a new facility—when medication
is often confiscated, skipped, or lost; health histories can be hazardously
incomplete; and (particularly in jail) the prisoner is often in crisis. Another
dangerous time is release—when prisoners usually leave with only a few days’
worth, if that, of any medication, without a doctor’s appointment to get a refill,
and often far from their families without transportation home.104

101. ROBERT WOOD JOHNSON FOUND., LINKING RE-ENTRY PLANNING TO COMMUNITY-BASED
CORRECTIONAL CARE 2 (2009), http://www.thebridginggroup.com/pdf/Linking_Re-Entry_
Planning_to_Community-Based_Correctional_Care_Zack_2009.pdf. See generally Susan
Turner, “Reentry,” in the present Volume.
102. ROBERT WOOD JOHNSON FOUND., supra note 101, at 2.
103. See SHAWN BAULDRY ET AL., MENTORING FORMERLY INCARCERATED ADULTS: INSIGHTS FROM THE
READY4WORK REENTRY INITIATIVE 7 tbl.2 (2009), http://ppv.issuelab.org/resources/1948/1948.pdf;
see also BYRON R. JOHNSON & DAVID B. LARSON, THE INNERCHANGE FREEDOM INITIATIVE: A PRELIMINARY
EVALUATION OF A FAITH-BASED PRISON PROGRAM 16 (2008), http://www.baylor.edu/content/services/
document.php/25903.pdf (“It was hoped that the mentoring relationship that was developed
while the offender was still in prison would continue during the difficult months following
release from prison.”).
104. See, e.g., Jacques Baillargeon et al., Accessing Antiretroviral Therapy Following Release
from Prison, 301 JAMA 848, 855 (2009) (“In this 4-year study of HIV-infected inmates released
from the nation’s largest state prison system, we found that only 5% of released inmates filled a
prescription for ART medications soon enough ... to avoid treatment interruption.”)

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first two are self-explanatory. The third is equally important. Correctional
facility doctors and nurses can be expert and compassionate providers. But
sometimes prisons and jails become the employers of last resort for subpar
clinicians. A number of states have a practice of granting “restricted licenses”
to doctors who work in prisons but do not meet the requirements for full
licensure.110 And in some states, doctors whose disciplinary records make them
unattractive employees elsewhere find jobs in the prison system.111 Even when
clinicians have unrestricted licenses and clean records, research establishes
that prison doctors and nurses tend to be more jaded and less empathetic
toward their patients when compared with their civilian counterparts.112 As
experienced correctional physician Robert Greifinger has summarized: “There
is far too much cynicism regarding inmates among correctional health care
professionals, who work in environments of constant tension. Too often these
professionals are skeptical about inmates’ concerns and complaints, believing
that the inmates (who do often exaggerate) are malingering for secondary gain.
Correctional health care staff also frequently incorporate the custody staff ’s
fear that humane responsiveness is coddling that can lead to anarchy.”113
When medical and mental-health staff work both in and out of correctional
facilities, that counteracts both the tendency toward lower hiring standards and
lower levels of compassion toward the patients. Even if in a particular setting it
makes sense to hire people who work only in a correctional facility, it is helpful
in terms of hiring, supervision, and mindset if their employing organization is
focused on community as well as correctional care.
RECOMMENDATION: Medical and mental-health staff in jails and
prisons should have employing organizations whose focus is on community
in addition to correctional care.
110. See John J. Gibbons & Nicholas De B. Katzenbach, Confronting Confinement: A Report of
The Commission on Safety and Abuse in America’s Prisons, 22 WASH. U. J.L. & POL’Y 385, 443–44
(2006).
111. See Cindy Chang, Many Doctors Treating State’s Prisoners Have Disciplinary Records
Themselves, THE TIMES-PICAYUNE (July 29, 2012), http://www.nola.com/crime/index.ssf/2012/07/
many_doctors_treating_states_p.html.
112. See Naveen Dhawan et al., Physician Empathy and Compassion for Inmate-Patients in
the Correctional Health Care Setting, 13 J. CORR. HEALTH CARE 257, 264 (2007) (“[C]orrectional
physicians describe a developmental course in which they become increasingly able to empathize
with inmates during a period of years of working in a correctional setting.”); Kristine E. Shields
& Dorothy de Moya, Correctional Health Care Nurses’ Attitudes Toward Inmates, 4 J. CORR. HEALTH
CARE 37, 37 (1997).
113. Robert B. Greifinger, Inmates As Public Health Sentinels, 22 WASH. U. J.L. & POL’Y, 253, 262
(2006).

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3. Finances and discharge planning
Finally, there is simply no justification for the current law and practices
governing the financing of inmate health care. As so often in health law, this
issue is technically complicated. Since its inception, Medicaid has excluded
“inmates of public institutions” from “federal financial participation”—
which is to say, coverage.114 That exclusion has never affected inmate eligibility
to enroll, just their actual receipt of Medicaid benefits.115 Nonetheless, even
prisoners who were eligible, because of age or disability, have most often had
their Medicaid enrollment terminated rather than merely suspended, during
their time in jail and prison. The result was months of delay for former inmates
to be reapproved for Medicaid on release from incarceration.116
In the past, the use of Medicaid termination rather than suspension did
not affect most prisoners, however, because they were not Medicaid-eligible
in any event. As adults without dependent children and without a Social
Security Administration-recognized disability, they did not meet their states’
eligibility criteria notwithstanding their low income. The Affordable Care
Act (ACA) changed that part of the picture when it allowed states to expand
Medicaid coverage to everyone who earns up to 138% of the federal poverty
level and is under 65 (People 65 and older are covered under Medicare).117 As
of January 2017, 31 states and the District of Columbia had signed up for the
ACA’s Medicaid expansion funding.118 The result is that nearly all inmates in
those states are now Medicaid-eligible. Enrollment comes with two benefits
for them and their jailers: First, Medicaid will cover a large portion of the cost
of care delivered outside the institution—at a hospital, for example—when
the prisoner has been admitted to that hospital for 24 hours or more. Second,
Medicaid enrollment greatly smooths the transition to community health
care on release. To realize these benefits, however, states need to enroll their
inmates—and to suspend rather than terminate prisoner participation in the
114. 42 C.F.R. § 435.1009(a)(1).
115. See Letter from Glenn Stanton, Acting Dir., Disabled & Elderly Health Programs Grp., to
State Medicaid Directors, CMS Assoc. Reg’l Adm’rs for Medicaid (May 25, 2004), https://www.
medicaid.gov/medicaid/ltss/downloads/community-living/ending-chronic-homelessness-smdletter.pdf (discussing ending chronic homelessness).
116. See NAT’L ASS’N OF CTYS., HEALTH COVERAGE AND COUNTY JAILS SUSPENSION VS. TERMINATION
1 (2014), http://www.naco.org/sites/default/files/documents/Suspension-termination-DEC2014
(2).pdf; see also 42 C.F.R. § 435.912 (capping Medicaid eligibility determinations based on
disability at 90 days and other applications at 45 days).
117. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, 271 (2010)
(codified at 42 U.S.C. § 1396a).
118. Current Status of State Medicaid Expansion Decisions, KAISER FAMILY FOUND. (Jan. 1, 2017),
http://kff.org/health-reform/slide/current-status-of-the-medicaid-expansion-decision/.

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program while they are housed in jail or prison. States have been making real
though not complete progress on these fronts.119
Much more broadly (and admittedly unrealistically in the current political
climate), to my mind, the exclusion of prisoners from Medicaid makes no sense
at all. If the federal government is going to be responsible for health-care costs
for poor people, why exclude prisoners? I suppose there’s an argument that
since the states and local governments are constitutionally required to pay for
medical care, Medicaid coverage would not increase access to care, but merely
shift the payer (of course, if that’s the logic, the exclusion from the exclusion
for hospital stays is an oddity). But even if Medicaid continues to exclude
prisoners, there is no reason at all that prisoners shouldn’t be enrolled, to
facilitate coverage for them when they leave. The absence of Medicaid coverage
is one of the reasons that the death rate for released prisoners is several
times higher than for others of similar age, race, and sex.120 The availability
of insurance makes discharge planning possible: case managers can connect
inmates heading toward release with providers in their community and can
even schedule necessary post-release appointments.
RECOMMENDATION: Congress should extend Medicaid coverage for
Medicaid-eligible prisoners. In the alternative, jails and prisons should
enroll all eligible prisoners in Medicaid, and suspend rather than terminate
Medicaid coverage for prisoners.
RECOMMENDATION: Jail and prison case managers should undertake
systematic discharge planning for medical and mental-health care; prisoners
should be released with sufficient medication to get them to a scheduled
appointment with an appropriate provider.

119. See Sachini N. Bandara et al, Leveraging the Affordable Care Act to Enroll JusticeInvolved Populations in Medicaid, 34 HEALTH AFF. 2044 (2015); Medicaid Eligibility for People
Leaving Incarceration Is Smart Policy, FAMILIES USA (July 12, 2016), http://familiesusa.org/
sites/default/files/product_documents/ENR_Suspension%20v.%20Termination%20Map%20
Infographic_07-12-16.pdf. In addition, in April 2016, the Obama Administration issued guidance
on “facilitating access to covered Medicaid services for eligible individuals prior to and after a
stay in a correctional institution.” That guidance provided that individuals in halfway houses
would often be covered by Medicaid (if they had a certain degree of freedom of movement).
Ctrs. for Medicare & Medicaid Servs., U.S. Dep’t of Health & Human Servs., State Health Official
Letter No. 16-007 (Apr. 28, 2016).
120. Ingrid A. Binswanger et al., Release from Prison—A High Risk of Death for Former Inmates,
356 NEW ENG. J. MED. 157, 157 (2007).

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