The Americans With Disabilities Act and Criminal Justice: Mental Disabilities and Corrections.

by Paula N. Rubin and Susan W. McCampbell

Series: NIJ Research in Action
Published: September 1995
14 pages
30,893 bytes

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Highlights

The National Institute of Justice launched an
initiative to examine the implications of the
Americans With Disabilities Act (ADA) for criminal
justice agencies at the State and local levels.
This Research in Action report, the sixth in a
series on the ADA, examines how correctional
facilities must deliver programs, services, and
activities to inmates, job applicants, and
employees with mental disabilities.

Under the ADA, corrections facilities must do more
than just identify mentally disabled inmates and
employees. Now they must also provide mental health
screening, evaluation, and treatment. Key points
include the following:

o  The ADA raises significant issues for
correctional facilities because of the prevalence
of mental disabilities among inmates. Jails across
the United States are handling 640,000 to 800,000
detainees with such disabilities each year.

o  According to the ADA, a mental disability is any
developmental or psychological disorder, such as
retardation, organic brain syndrome, emotional
illness, or specific learning disability.

o  Title II of the ADA governs how correctional
facilities are to make their programs accessible.
Program access is not required when it poses a
direct threat to the health or safety of others.

o  Inappropriate policies and procedures that
eliminate inmates from programs and services on the
basis of a disability can be avoided by clearly
defining the eligibility for program participation,
by tying eligibility criteria to actual program
needs, and by ensuring that the screening process
is objectively applied.

o  Under Title I of the ADA, it is illegal to deny
equal employment opportunities to qualified
individuals with disabilities on the basis of the
disability. If job applicants are screened out
because they are unable to perform an essential job
function, the agency must be prepared to show that
the standard is job-related and cannot be met even
with reasonable accommodation.

o  The liability of not referring for evaluation
employees who are suspected of being mentally
disabled is tremendous. Agencies that suspect an
employee is thus unfit to perform duties and whose
actions, or inactions, cause harm to an arrestee or
inmate, may be liable.

o  Many approaches to accommodating the needs of
inmates with mental disabilities are valid. These
include specialized housing units to hold inmates
who pose a direct threat to the health and safety
of others, treatment for inmates housed in regular
housing units, and diversion of inmates to other
institutions and services. Each approach, however,
must not exclude eligible inmates with mental
disabilities from programs and services available
to the rest of the inmate population.

These issues and their implications are detailed in
this Research in Action.
---------------------------------------

The enactment of the Americans With Disabilities
Act (ADA) was part of a new effort in the civil
rights movement to integrate into all segments of
society individuals with disabilities. The ADA
affects not only mainstream society but also
prisons and jails. The manner in which a
correctional facility works with inmates, job
applicants, and employees with disabilities is now
regulated by the ADA.

The ADA affects how correctional facilities deliver
their programs and services to inmates with
disabilities as well as others who have a
legitimate right to be in the facility or are
employed to work there. 

Significant issues arise because of the prevalence
of mental disabilities among inmates. Approximately
10 million individuals are detained in jails in the
United States each year. An estimated 6.4 percent
of these detainees have a severe mental disability.
Some experts believe this percentage is even
higher, around 8 percent, and that the percentage
of female detainees with a severe mental disability
may be as high as 13 percent. This means that jails
across the United States are dealing with 640,000
to 800,000 detainees with mental disabilities each
year.

This Research in Action report, the sixth in a
series on the ADA published by the National
Institute of Justice, examines how correctional
facilities must deliver programs, services, and
activities to inmates, job applicants, and
employees with mental disabilities.
---------------------------------------------

Defining mental disability

According to the ADA, a mental disability is any
"mental or psychological disorder, such as
retardation, organic brain syndrome, emotional or
mental illness, or specific learning disability.
The ADA distinguishes between mental illness and
developmental disability (retardation). Mental
illness is defined as "...a group of disorders
causing severe disturbances in thinking, feeling,
and relating. They result in substantially
diminished capacity for coping with ordinary
demands of life....A mental illness can have
varying levels of seriousness. Identical illnesses
can cause different reactions in different people,
or different reactions at different times in the
same person." Personality traits such as poor
judgment or a hot temper are not considered
disabling under the ADA. Stress and depression may
be considered disabling when they are diagnosed as
an identifiable stress disorder and an impairment
that substantially limits a major life activity.

It should be noted that mental illness is not a
crime. Prosecution and incarceration are
inappropriate responses to symptoms of mental
illness. Law enforcement agencies have a
responsibility to distinguish criminal behavior
from conduct that is the product of mental illness
but has no criminal intent. Thus, failure to work
with mental health authorities to ensure the
appropriate response to "nuisance" offenders by
determining whether the "offense" is simply a
manifestation of a disability may violate the ADA,
in addition to burdening correctional institutions
with individuals who have needs that the
institution is not equipped to meet.
A developmental disability means that "normal
development fails to occur....A developmental
disability is diagnosed by significant subaverage
general intellectual functioning (as measured by IQ
tests) resulting in, or associated with, defects or
impairments in adaptive behavior, such as personal
independence and social responsibility, with onset
by age 18." "...[R]etardation is estimated as...the
Nation's fourth ranking disabling condition.

Delivering programs, services, and activities

Title II of the ADA governs how correctional
facilities are to make their programs, services,
and activities accessible to inmates with mental
disabilities. This law requires the facility to
evaluate each program, service, and activity in
such a way so that, when viewed in its entirety,
the program, service, or activity is readily
accessible to and usable by eligible inmates with
disabilities.

Eligibility requirements. Under the ADA, not all
inmates with disabilities may be "qualified." A
"qualified individual with a disability" means an
individual with a disability who, with or without
reasonable modifications to rules, policies, or
practices, the removal of architectural,
communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt
of services of the participation in programs
provided by a public entity.

Local jail officials deal with numerous severely
mentally disabled arrestees each day, many of whom
must handle the additional trauma of being
arrested. Program access is not required when it
poses a direct threat to the health or safety of
others. 

An inmate whose participation in a particular
activity poses a "direct threat" to the health or
safety of others will not be "qualified," but the
determination that a person poses a direct threat
to the health or safety of others may not be based
on generalizations or stereotypes about the effects
of a particular disability. It must be based on an
individualized assessment, based on reasonable
judgment that relies on current medical evidence or
on the best available objective evidence, to
determine: 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
will mitigate the risk. Thus, across the board
classification of an individual as a "direct
threat" because of a mental disability would be
inappropriate without consideration of the
requirements of the particular program or activity
in question.

Determination of whether an inmate with a mental
illness or developmental disability is "qualified"
for a particular program, service, or activity
provided by a correctional institution requires
analysis of the particular activity to identify the
"essential eligibility requirements" and analysis
of the particular inmate to determine the effect of
the disability on his or her ability to meet those
requirements and, if necessary, the feasibility of
accommodation. 

Eligibility may also be based upon individual
behavior. For those inmates with mental illness who
can be safely housed in a general population
setting, eligibility should not be an issue.
Inmates whose disability requires maintenance on
psychotropic medications, but who are stable enough
for general population settings, may be eligible to
participate in the facility's programs, services,
or activities based on individual behavior. For
example, an eligibility requirement that excludes
all inmates on psychotropic medication from inmate
worker status may violate the ADA. However,
requiring the inmate's behavior to be stable while
on such medication may be an acceptable eligibility
requirement.

Corrections agencies, especially prisons, are faced
with the long-term incarceration of inmates whose
mental illness is acute and perhaps will never
improve. In the long-term custodial setting of
prison, inmates who are mentally ill may arrive in
that condition, or they may develop illnesses over
the term of their confinement. In circumstances in
which the inmate's behavior is a direct threat to
staff or other inmates, there is no requirement
that they be permitted to participate in programs,
services, or activities offered to other inmates.
Those inmates who, because of a mental disability,
cannot meet the essential eligibility requirements
will not be "qualified" persons with a disability
and therefore may not be entitled to participate in
the program, service, or activity. 


To ensure compliance with ADA mandates, corrections
administrators should look at three distinct areas
when evaluating the accessibility of their
facility's programs, services, and activities: (1)
policies and procedures, (2) architectural
barriers, and (3) communications.

Policies and procedures. The courts now consider a
facility's deliberate indifference to an inmate's
mental disability as the same as that facility's
indifference to an inmate's medical condition. A
correctional facility should avoid policies and
procedures that screen out or eliminate eligible
inmates from programs and services on the basis of
a mental (as well as physical) disability. If such
policies and procedures exist, it may be necessary
to reasonably modify the policy or procedure to
allow eligible inmates to participate in a
meaningful way. Reasonable modification is not
necessary if it fundamentally alters the nature of
the program, service, or activity. Inappropriate
policies and procedures can be avoided by clearly
defining the eligibility for program participation,
by tying these criteria to actual program needs,
and by ensuring that the screening process is
objectively applied. 

Correctional facilities, including local jails,
should screen all inmates to identify those with
developmental disabilities. Those with mental
disabilities should be evaluated by qualified
mental health professionals, and they should have
access to crisis intervention, treatment, and
discharge planning services. This approach requires
a collaborative effort among corrections, mental
health, and medical staff. One obvious way to
address detainees with developmental disabilities
is to divert these individuals before they get to
the local jail. Community diversion works well in
many jurisdictions and requires a collaborative
effort among criminal justice, social service, and
public health agencies to work with individuals who
are often nuisance offenders--trespassers, petty
thieves, public inebriants, the chronic homeless,
and those who are dually diagnosed, i.e., those who
have mental illness and are also substance abusers.

To avoid having police officers handle this special
needs population, teams of specially trained
community mental health workers can be on call for
the local police. Mental health workers can come to
arrest sites, provide alternative sites to which
individuals who are candidates for diversion can be
brought, or be present at local jails to initiate
diversion activities. This collaborative approach
requires training police officers to recognize
signs and symptoms of mental disability so that
they can respond appropriately. Inmates with mental
disabilities, particularly those in local jails,
are the responsibility of the community. The
integration of jail services and community mental
health services is critical to the success of an
inmate's treatment and reintegration into the
community.

Policies for housing those with severe mental
illness must be based on ADA criteria. Acceptable
approaches may include maintaining specialized
housing units to hold those who pose a direct
threat to the health and safety of others or
placing them in other institutions where more care
is available to meet their needs. Not included,
however, are individuals who are court-  ordered to
undergo evaluation and/or treatment or individuals
for whom insanity and/or competency to stand trial
is an issue. These legal activities are usually
outside the scope of a correction facility's
responsibilities.

Architectural barriers. Although the ADA does not
automatically require correctional institutions to
be architecturally retrofitted, it does mandate
that the facility provide physical access for its
inmates, visitors, staff, and volunteers with
disabilities. This requirement can be accomplished
without construction. It may be achieved by
relocating services and activities to a different
part of the facility, redesigning equipment,
providing auxiliary aids, or, as a last resort,
altering an existing structure. An agency need not
experience an undue burden, however, in providing
program access. An undue burden is defined as a
significant expense or a fundamental alteration of
the nature of the operations of the agency.

Architectural barriers may not be as significant an
issue for mentally disabled inmates as other
inmates with disabilities. If the local jail or
prison has separate housing for individuals with
mental disabilities, the inmates confined to that
housing must have access to jail or prison programs
for which they are eligible and for which their
participation does not pose a direct threat. It is
not enough to provide separate services to those
with mental disabilities since mainstreaming is a
hallmark of the ADA.

To ensure that those with disabilities are not
summarily excluded, a review of all eligibility
requirements for inmate and family programs should
be made. The goal of this review should be to tie
eligibility requirements to the program's actual
requirements and provide a means to ensure that
individuals with mental disabilities are not
excluded from mainstream activities. For example,
if family group therapy is part of the inmate's
treatment plan, but a disabled family member is not
able to participate either because of architectural
barriers or the absence of a sign language
interpreter, the inmate should not be excluded.

Communications. Inmates, inmate families, and
inmate visitors are also entitled to an effective
means of communicating under the ADA. Meeting this
condition may require auxiliary aids. Although this
portion of the ADA applies only to hearing, speech,
and vision impairments, to the extent an inmate
with a mental disability has one of these
disabilities, the ADA requirements would also
apply.

Examples of auxiliary aids include assisted
listening devices, telecommunication devices for
the deaf, taped texts, and qualified readers. These
aids should take into account, where practical, the
mental disability of the inmate. Effectively
communicating with visitors for an inmate who is
developmentally disabled or retarded may mean
alternatives to traditional visiting procedures.

A word about personal devices and services

Section 35.135 of the Department of Justice's
Regulations provides that:...this part does not
require a public entity to provide to individuals
with disabilities personal devices, such as
wheelchairs; individually prescribed devices, such
as prescription eyeglasses or hearing aids; readers
for personal use or study; or services of a
personal nature including assistance in eating,
toileting, or dressing.

The regulation does, however, require that whatever
services the entity provides must be provided
without discrimination against qualified
individuals with disabilities. Because of the
custodial relationship between the institution and
its inmates, the obligation of the institution is
likely to include provision of personal devices or
services that would not be required of public
entities. For example, a correctional institution
is responsible for providing medical care for
inmates,  including appropriate treatment for 
inmates with mental illnesses. Where an inmate's
mental illness would require residential treatment
in a mental hospital, housing that individual in a
specialized facility, rather than among the general
population, would be appropriate.

Applicants and employees with mental disabilities

Title I of the ADA deals with employment issues.
Under this part of the law, it is illegal to deny
equal employment opportunities to qualified
individuals with disabilities on the basis of the
disability. Equal employment opportunity includes
the application and hiring process as well as how
employees are treated with respect to transfers,
promotions, and benefits.

Applicants with mental disabilities. To be covered
by Title I of the ADA, the applicant must be
qualified for the job. That means the applicant
meets the requirements for the position, such as
education and experience, and can perform the
essential functions of the job with or without an
accommodation.

Essential functions are those that are fundamental
to the job. If the applicant cannot perform the
essential functions of the job because of a
disability, the correctional agency must determine
whether there is a reasonable accommodation that
will enable the individual to perform the essential
functions of the job. Reasonable accommodations can
include modifying existing facilities to make them
accessible, job restructuring, part-time or
modified work schedules, acquiring or modifying
equipment, and changing policies or procedures.
Providing a reasonable accommodation will not be
necessary if doing so causes an undue hardship,
that is, a significant expense or difficulty.

An additional condition for coverage by Title I of
the ADA is that the applicant must not pose a
direct threat to the safety of self or others that
cannot be eliminated or reduced by reasonable
accommodation. Under Title I, direct threat means
"significant risk of substantial harm." This is
interpreted to mean a high probability of
substantial harm.

Ensuring that persons have equal access to
employment opportunities means that applicants are
allowed to participate in the application process
in a meaningful way. For example, someone with a
learning or reading disability might be
accommodated by providing extra time to take a
written exam.

Agencies need to develop and validate job-related
entry level fitness standards--both physical and
psychological. Candidates for positions who are
significantly limited by mental disabilities need
to be assessed to determine if they are eligible
for the position and are able to perform the
essential job functions. If a candidate is screened
out by a particular job standard, the agency must
be prepared to show that the standard, as applied,
is job-related and consistent with business
necessity and cannot be met even with reasonable
accommodation.

Blanket exclusions based on mental illnesses,
controlled or not by psychotropic medications, may
violate the ADA. Agencies should address this issue
on a case-by-case basis. Persons experiencing a
short-term mental illness, such as situational
stress or mild depression, may not be covered by
the ADA.

Employees with mental disabilities. In stressful
corrections work environments, the effective
evaluation of conditions such as post-traumatic
stress disorder become as important as the ability
to evaluate a back injury. In the event an employee
acquires a mental disability, an evaluation as to
whether a reasonable accommodation can be provided
will need to be made. Accommodations may include
time off to participate in therapy or temporary
reassignment. It is essential to remember that
mental illness may be temporary in nature, just as
are some physical ailments. A disorder that is
truly temporary would not be covered by the ADA.

Whether the condition is related to the job or not
is often a matter that the worker's compensation
statutes of the State will decide. The State's
decision may ultimately affect the manner in which
the individual receives help.

The liability of not referring employees who are
suspected of being mentally disabled for evaluation
is tremendous. Agencies who suspect an employee is
physically or mentally unfit to perform duties and
whose actions, or inactions, cause harm to an
arrestee or inmate, may be liable.

The same evaluation and validation process for
determining what mental health conditions exclude
candidates for initial hiring might also provide a
guideline for dealing with individuals who develop
a mental disability during their employment.
Moreover, a system that places as much emphasis on
mental health as physical health for continued
employment might provide an objective measure to
ensure that a reasonable accommodation for the
employee's needs is provided. For example, when
developing light duty policies, the same issues
will exist for both physical and mental health
conditions: What is the probable time until return
to full duty is possible? What will be the measure?
What is the next step if return to full duty is not
possible?

Developing and implementing mental health services
for inmates. 

Because of the large number of severely mentally
ill in local jails and the likelihood that
developmentally disabled arrestees will be returned
within a short period of time to their community, a
better and more effective approach to addressing
the needs of mentally disabled inmates needs to be
found.

The first step is problem solving at the local
level between corrections and mental health
agencies. Other local agencies need to be involved
as well, including police, prosecutors, public
defenders, the defense bar, and judges. All
agencies who deal with mentally disabled people
share the burden in addressing this issue.
Memorandums of agreement, contracts, and other
shared objectives may form the basis for a working
relationship that will, in the end, ensure that the
best interests of the community, the mentally
disabled person, and the jail staff are taken into
consideration.

How correctional facilities accommodate the needs
of inmates with mental disabilities will differ
depending upon the setting--jail or prison. Various
approaches include specialized housing units to
hold inmates who pose a direct threat to the health
and safety of others, treatment for inmates housed
in regular housing units, and diversion of inmates
to other institutions or services that are better
able to meet their needs. Each approach is valid as
long as it does not exclude eligible mentally
disabled inmates from participating in programs and
services available to the rest of the inmate
population.
---------------------------------------------
Americans With Disabilities Act
Essential Eligibility Requirements

If an inmate is "qualified" for participation in a
program or activity, excluding the inmate or
limiting his or her participation would violate one
or more of the general prohibitions of
discrimination in 28 C.F.R. . 35.130...

     (b)(1)  A public entity, in providing any
     aid, benefit, or service, may not,
     directly or through contractual,
     licensing, or other arrangements, on the
     basis of disability:
     (i)  Deny a qualified individual with a
     disability the opportunity to participate
     in or benefit from the aid, benefit, or
     service;
     (ii)  Afford a qualified individual with
     a disability an opportunity to
     participate in or benefit from the aid,
     benefit, or service that is not equal to
     that afforded others;
     (iii)  Provide a qualified individual
     with a disability with an aid, benefit,
     or service that is not as effective in
     affording equal opportunity to obtain the
     same result, to gain the same benefit, or
     to reach the same level of achievement as
     that provided to others;
     (iv)  Provide different or separate aids,
     benefits, or services to individuals with
     disabilities or to any class of
     individuals with disabilities than is
     provided to others unless such action is
     necessary to provide qualified
     individuals with disabilities with aids,
     benefits, or services that are as
     effective as those provided to others;
     
     (b)(2)  A public entity may not deny a
     qualified individual with a disability
     the opportunity to participate in
     services, programs, or activities that
     are not separate or different, despite
     the existence of permissibly separate or
     different programs or activities.

     (b)(7)  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.

     (b)(8)  A public entity shall not impose
     or apply eligibility criteria that screen
     out or tend to screen out an individual
     with a disability or any class of
     individuals with disabilities from fully
     and equally enjoying any service,
     program, or activity, unless such
     criteria can be shown to be necessary for
     the provision of the service, program, or
     activity being offered.

     (d)  A public entity shall administer
     services, programs, and activities in the
     most integrated setting appropriate to
     the needs of qualified individuals with
     disabilities.

----------------------------------------

Paula N. Rubin, a lawyer, is a visiting fellow at
the National Institute of Justice, coordinating
NIJ's initiative to research, develop, and deliver
publications and training for the criminal justice
system on the Americans With Disabilities Act as
well as other civil rights and human-resources
management issues. Susan W. McCampbell is the
Director of the Department of Corrections and
Rehabilitation Services, Broward County, Florida
Sheriff's Office.

This research is supported under award number 92-
IJ-CX-0009 from the National Institute of Justice,
Office of Justice Programs, U.S. Department of
Justice. Points of view in this document are those
of the author and do not necessarily represent the
official position of the U.S. Department of
Justice.

The National Institute of Justice is a component of
the Office of Justice Programs, which also includes
the Bureau of Justice Assistance, Bureau of Justice
Statistics, Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims
of Crime.

Related NIJ Publications

Listed below are selected NIJ publications related
to issues of mental illness and the ADA. These
publications can be obtained free from the National
Criminal Justice Reference Service (NCJRS):
telephone 800-851-3420, e-mail
askncjrs@ncjrs.aspensys.com, or write to NCJRS, Box
6000, Rockville, MD 20849-6000.

Please note that when free publications are out of
stock, they are available in photocopies for a
minimal fee or through interlibrary loan. They   
are also usually available on the NCJRS Bulletin
Board System or on the Department of Justice
Internet gopher site for downloading. Call NCJRS
for more information.

McDonald, Douglas, C., Ph.D and Michele Teitelbaum,
Ph.D., Managing Mentally Ill Offenders in the
Community: Milwaukee's Community Support Program,
NIJ Program Focus, March 1994, NCJ 145330.

Rubin, Paula N., Civil Rights and Criminal Justice:
Employment Discrimination Overview, Research in
Action, June 1995, NCJ 154278.

Rubin, Paula N. and Toni Dunne, The Americans With
Disabilities Act: Emergency Response Systems and
Telecommunications Devices for the Deaf, Research
in Action, February 1995, NCJ 151177.

Rubin, Paula N., The Americans With Disabilities
Act and Criminal Justice: Hiring New Employees,
Research in Action, August 1994, NCJ 147479.

Rubin, Paula N., The Americans With Disabilities
Act and Criminal Justice: An Overview, NIJ Research
in Action, September 1993, NCJ 142960.

Rubin, Paula N. and Susan W. McCampbell, The
Americans With Disabilities Act and Criminal
Justice: Providing Inmate Services, Research in
Action, July 1994, NCJ 148139.