U.S. Department of Justice

Office of Justice Programs

National Institute of Justice

DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

R e s e a r c h i n A c t i o n

National Institute of Justice

Jeremy Travis, Director July 1995

Americans With Disabilities Act

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:

• 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.

• 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.

• 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.

The Americans With Disabilities

Act and Criminal Justice:

Mental Disabilities and Corrections

by Paula N. Rubin and Susan W. McCampbell

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.1

 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.”2 The ADA

distinguishes between mental illness and

developmental disability (retardation).

Mental illness is defined as “...a group of

disorders causing severe disturbances in

continued . . .
2

R e s e a r c h i n A c t i o n

Highlights

continued . . .

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.”3

 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.4

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.”5

 “...[R]etardation is estimated

as...the Nation’s fourth ranking disabling

condition.”6

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.7

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 se-

• 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.

• 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.

• 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.

• 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.
3

R e s e a r c h i n A c t i o n

verity 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 (see box).

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.

f 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.

I

Essential Eligibility Requirements
4

R e s e a r c h i n A c t i o n

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.8

 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.9

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 courtordered 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
5

R e s e a r c h i n A c t i o n

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 indi–

viduals 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,
6

R e s e a r c h i n A c t i o n

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.
7

R e s e a r c h i n A c t i o n

Notes

1 Teplin, Linda, “The Prevalence of

Severe Mental Disorder Among Male

Urban Jail Detainees,” American

Journal of Mental Health, 80 (1990),

p. 663-669.

2 See Equal Employment Opportunity

Commission’s (EEOC) Technical Assistance Manual (TAM), Section

2.2(a)(i).

3 Murphy, Gerard R., Managing Persons with Disabilities: A Curriculum

Guide for Police Trainers, Police Executive Research Forum, Washington,

D.C., 1989, p. 2–5.

4 TAM, Section 2.2(a)(i).

5 Murphy, Gerard R., Managing Persons with Disabilities: A Curriculum

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,

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, email 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

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.

Guide for Police Trainers, Police Executive Research Forum, Washington,

D.C., 1989, p. 2–5.

6 Ibid, p. 2–13.

7 See Department of Justice Technical

Assistance Manual, Section II–2.800.

8 American Psychiatric Association,

“Psychiatric Services in Jails and Prisons,” Washington, D. C., March 1989.

9 Steadman, Henry J., McCarty, Dennis

W., and Morrissey, Joseph P., The

Mentally Ill in Jail: Planning for

Essential Services, New York, The

Guilford Press, 1989.

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 Commander of the Inmate

Services Division for the Alexandria, Virginia, Office of the Sheriff.

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.

NCJ 155061

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.
8

R e s e a r c h i n A c t i o n

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