The Americans with Disabilities Act (ADA) was signed into law by former President George H. W. Bush on July 26th, 1990. Upon ratification, the ADA extended to the private sector the regulations of the Rehabilitation Act of 1973, the purpose of which was to eliminate discrimination based on disability in the public sector.1 The ADA remains the pinnacle national policy for the advancement of people with disabilities.
Title II of the ADA outlines various regulations for state and local government entities. These regulations were written to further eliminate discrimination against people with disabilities through the application of federal policy. The government entities most addressed in Title II are detention and correctional facilities (i.e., jails and prisons). More general regulations are also stipulated for law enforcement. The original regulations, or standards, of Title II were written in 1991 and updated by the Department of Justice (DOJ) in 2010.
To assess the scope of the impact of Title II, it is critical to review the statistical data on rates of incarceration. The Bureau of Justice Statistics reported that approximately 32% of people in prison and 40% of people in jail have a disability.2 These rates are significantly disproportionate to the number of people in the general U.S. population who have a disability, which is about 19%. Regarding the most prevalent forms of disability among persons who are incarcerated in prisons and jails, the Bureau of Justice Statistics indicated that cognitive disabilities are most common, 20% and 31% respectively, followed by physical disabilities.2 These statistics demonstrate that Title II impacts the lives of hundreds of thousands of people in America every day. Still, the tens of millions of people in the general population who have a disability but are not incarcerated are also impacted by Title II, as they all have the potential to encounter law enforcement.
Incorporating the concept of intersectionality, research utilizing data from the National Longitudinal Survey of Youth, revealed that people are more likely to be arrested by law enforcement if they have a disability, are Black or African American, and are young men.3 Indeed, the same study reported that as many as 55% of Black men with disabilities are arrested by the age of 28. This research has significant implications for anti-discrimination policy for people with disabilities; for Black, Indigenous, and people of color (BIPOC); and for BIPOC living with disabilities.
Subsection 35.151k of Title II requires that a minimum of 3% of cells in all government-run detention and correctional facilities be physically accessible to any person with a disability who is incarcerated. These accessible cells, furthermore, must be available at every level of security (e.g., general population, maximum security). They must also be available in every housing category and holding classification.4
Extending the provisions of subsection 35.151k, subsection 35.152 specifies that government-run detention and correctional facilities, or public entities, must ensure that all people with disabilities who are incarcerated are not excluded from participation in the services, programs, or activities of the entity due to inaccessibility. Facilities must also ensure that people with disabilities who are incarcerated are housed in the most integrated setting according to their needs. Similarly, people with disabilities who are incarcerated may not be housed in alternate security classifications (e.g., isolation) simply because there are no accessible cells or beds in their appropriate classifications.4
In addition, people with disabilities who are incarcerated must not be housed in medical areas unless they are actively receiving medical treatment. People with disabilities who are incarcerated must also be offered the same programs and facilities that are available in other housing units; and they cannot be housed in distant facilities that would deprive them of visitation from family members. Title II requires any facility that does not currently meet these regulations to implement reasonable policies that will facilitate compliance, including making physical modifications to the facility (e.g., building the appropriate number of accessible cells). To that effect, detention and correctional facilities must ensure that all people with disabilities who are incarcerated have the accommodations necessary to ensure their safe and appropriate housing.4
While the regulations for detention and correctional facilities are clearly outlined, the ADA notes that if facilities fail to provide necessary accommodations, people with disabilities who are incarcerated “have little recourse, particularly when the need is great” (p. 146).4 Examples of such needs include an accessible toilet, adequate catheters, and a shower chair. Most people complete their toileting and other hygiene activities without any need for accommodation, support, or assistive devices. For many people with disabilities, however, these activities do require assistance. Therefore, denying people with disabilities who are incarcerated access to the assistive devices and support they need to complete their toileting and other hygiene activities denies them basic human dignity, and is a form of abuse. The DOJ recognized this human rights issues and included the following language in Title II: “It is essential that corrections systems fulfill their nondiscrimination and program access obligations by adequately addressing the needs of prisoners with disabilities”(p. 147).4
Unlike the specific regulations delineated for detention and correctional facilities, the ADA outlines more general guidelines for law enforcement. The guidelines do not include a specific training requirement—for example, to increase the awareness and sensitivity of police officers to people with disabilities. The DOJ acknowledged, however, that “[d]iscriminatory arrests and brutal treatment are already unlawful police activities”, intimating disapproval of any discrimination or brutality directed towards people with disabilities (p. 193).4
Similar to detention and correctional facilities, law enforcement agencies are charged with modifying any polices, practices, or procedures that result in discriminatory arrests or abuse of people with disabilities. This includes appropriate efforts to determine whether behavior that is deemed by police officers to be strange or disruptive is the result of disability, as opposed to intentional criminal behavior. In addition, the DOJ acknowledged that several states have made a significant effort to address the issue of unlawful arresting of people with disabilities by adopting the Uniform Duties to Disabled Persons Act. The states that have not yet adopted the Act are encouraged to do so.4
In addition to increasing the anti-discrimination efforts of both policymakers and actors of the criminal justice system, there are several notable and specific opportunities for expansion of Title II. First, the exceptions under which a detention or correctional facility may disregard the regulations outlined in Title II must be explicitly identified, in order to reduce the likelihood of the regulations being interpreted and implemented loosely and variably. Second, greater administrative oversight of the current regulations in Title II is needed to prevent the civil rights of people with disabilities who are incarcerated from being violated any further, especially as the population has little recourse. Third, an amendment that includes a requirement for law enforcement officers to complete disability awareness or sensitivity training is strongly encouraged in order to reduce implicit bias in the community, which can lead to unlawful arrest. Fourth, more research and advocacy initiatives that implement the regulations of Title II, such as the Amplifying Voices of Inmates with Disabilities (AVID) Prison Project, will also help to ensure the civil rights of people with disabilities who are incarcerated.5 Lastly, the addition of regulations to Title II that increase legal support for people with disabilities who are incarcerated is needed—that is, so people with disabilities can file the appropriate lawsuits or take other legal action when their civil rights are violated during detainment.
1 Heller, T., Parker Harris, S., Gill, C. J., & Gould, R. (Eds.). (2019). Disability in American life: An encyclopedia of concepts, policies, and controversies (Vol. 1). ABC-CLIO.
2 Bronson, J., Maruschak, L. M., & Berzofsky, M. (2015, December 14). Disabilities among prison and jail inmates, 2011-12. http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5500
3 McCauley, E. J. (2017). The cumulative probability of arrest by age 28 years in the United States by disability status, race/ethnicity, and gender. American Journal of Public Health, 107(12), 1977-1981. http://doi.org/10.2105/AJPH.2017.304095
4 Department of Justice. (2010). Americans with Disabilities Act Title II Regulations. https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.pdf
5 Vallas, R. (2016). Disabled behind bars: The mass incarceration of people with disabilities in America’s jails and prisons. Center for American Progress. https://cdn.americanprogress.org/wp-content/uploads/2016/07/18000151/2CriminalJusticeDisability-report.pdf