Citations

 

  1.  See Jamie Fellner, Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States 18, 43 (2012), http://www.hrw.org/sites/default/files/reports/usprisons0112webwcover_0.pdf.

  2. ​See Human Rights Watch, U.S.: Number of Mentally Ill in Prisons Quadrupled (2006), http://www.hrw.org/news/2006/09/05/us-number-mentally-ill-prisons-quadrupled; Doris J. James & Lauren E. Glaze, Bureau of Justice Statistics, U.S. Dep’t of Justice, Special Report: Mental Health Problems of Prison and Jail Inmates 1 (2006), http://www.bjs.gov/content/pub/pdf/mhppji.pdf.

  3. ​Jennifer Bronson et al., Bureau of Justice Statistics, U.S. Dep’t of Justice, Special Report: Disabilities Among Prison and Jail Inmates, 2011-12 1 (2015), http://www.bjs.gov/content/pub/pdf/dpji1112.pdf.

  4. ​Paula M. Ditton, Bureau of Justice Statistics, U.S. Dep’t of Justice, Special Report: Mental Health and Treatment of Inmates and Probationers 8 (1999), http://www.bjs.gov/content/pub/pdf/mhtip.pdf.

  5. ​In a comprehensive report in 2003, Human Rights Watch noted that in some states, inmates with mental illness account for 41 percent of institutional infractions, while constituting only 19 percent of the prison population. Sasha Abramsky & Jamie Fellner, Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness 59-60 (2003), http://www.hrw.org/reports/2003/usa1003/usa1003.pdf.

  6. ​See Bronson et al., supra note 3, at 6.

  7. ​See Am. Civil Liberties Union, The Dangerous Overuse of Solitary Confinement in the United States 8 (2014), https://www.aclu.org/sites/default/files/assets/stop_solitary_briefing_paper_updated_august_2014.pdf.

  8. ​To fund AVID, DRW applied for cy pres funds that were the result of litigation against AT&T regarding prison phone charges. DRW, along with dozens of other organizations in Washington, was awarded funding from this cy pres pool to conduct corrections-based advocacy. DRW has since obtained additional private grant funding to expand the AVID project to encompass advocacy in specific local Washington jails as well.

  9. ​While many P&As engage in advocacy relating to conditions in city and county jails, federal correctional facilities, and immigration detention or holding facilities,  this report focuses on the work P&As have done in state prisons.

  10. ​The report includes examples from the following 21 states: Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Louisiana, Maine, Minnesota, Mississippi, New Hampshire, New York, Oregon, Pennsylvania, South Carolina, Vermont, Washington, Wisconsin.

  11. ​See Nat’l Disability Rights Network, Our History, http://www.ndrn.org/about/26-our-history.html (last visited Apr. 29, 2016).

  12. ​See, e.g., Developmental Disabilities Assistance and Bill of Rights Act of 1975, 42 U.S.C. § 15041-15045; Protection and Advocacy for Individuals with Mental Illnesses Act, 42 U.S.C. § 10801-10851; Protection and Advocacy of Individual Rights, 29 U.S.C. § 794e.

  13. ​See 42 C.F.R. § 51.42(b).

  14. ​Given the exhaustion requirements of the Prison Litigation Reform Act, most inmates and advocates begin with advocacy via the prison’s internal grievance system, moving onto other forms of advocacy, particularly litigation, only after exhausting the avenues of redress available within the prison. See 42 U.S.C. § 1997e(a).

  15. ​See 42 U.S.C. § 10807(a) (requiring that P&As exhaust administrative remedies where appropriate before commencing litigation).

  16. ​The requirements for an agency asserting organizational standing are set forth in Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977).

  17. ​See 42 U.S.C. § 12132; 29 U.S.C. § 794(a); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (holding that state-run prisons are “public entities” under Title II of the ADA). Notably, there is some question as to how far the ADA extends to private prisons. While 28 C.F.R. § 35.152(a) states explicitly that the law “applies to public entities that are responsible for the operation or management of adult and juvenile justice jails, detention and correctional facilities, and community correctional facilities, either directly or through contractual, licensing, or other arrangements with public or private entities, in whole or in part, including private correctional facilities,” in the majority of cases that have addressed this issue, the courts have found that a private prison corporation is not in fact a “public entity” or “instrumentality” of the state for the purposes of Title II and, accordingly, not subject to suit under that provision. See, e.g., Phillips v. Tiona, 508 F. App’x 737, 748-54 (10th Cir. 2013) (unpublished) (surveying current case law on the issue and holding that the Corrections Corporation of America, a private, for-profit corporation, was not subject to Title II of the ADA); Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010) (finding that defendant employees of a private prison management corporation operating prisons in Florida were not subject to Title II). However, it is possible that inmates held in prisons operated by private corporations could file a Title II claim against their state department of corrections for failing to meet its own obligations under the ADA, despite contracting out for prison services. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1069 (9th Cir. 2010); 28 C.F.R. § 35.130(b)(1).

  18. ​Because the protections of the Rehab Act are substantially the same as those afforded under Title II of the ADA, this analysis is focused on the protections afforded by Title II of the ADA. Bragdon v. Abbott, 524 U.S. 624, 632 (1998); 42 U.S.C. § 12201(a).

  19. ​42 U.S.C. § 12132. A “disability” is further defined under the ADA as “(A) a physical or mental impairment that substantially limits one or more major life activities…; (B) a record of such an impairment; or (C) being regarded as having such an impairment….” 42 U.S.C. § 12102(2)(A)-(C).

  20. ​42 U.S.C. § 12131(2). In the prison context, the requirement that an individual with a disability meet the “essential eligibility” requirements for a program or service means that inmates with disabilities must be otherwise eligible for the program that they are seeking to engage in. For example, an inmate with a disability may be excluded from a work release program due to the nature of their prior criminal offense.  Because such exclusion is based upon non-disability related criteria, it would not run afoul of the ADA.

  21. ​28 C.F.R. § 35.130(b)(7) (regulation requiring entities to “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.”). See Tennessee v. Lane, 541 U.S. 509, 511-512 (2004) (describing the reasonable modification requirement).

  22. ​In making such a determination, courts often evaluate the prison practice or policy at issue and its relationship to a legitimate governmental interest, including whether there are alternative means available, the cost of the modification and the administrative burden on the prison in making an accommodation, and the penological interests of the facility. See Turner v. Safley, 482 U.S. 78, 89-91 (1987); Gates v. Rowland, 39 F.3d 1439, 1446-47 (9th Cir. 1994). But see Amos v. Md. Dep’t of Pub. Safety and Corr. Servs., 178 F.3d 212, 220-22 (4th Cir. 1999), vacated on other grounds, 205 F.3d 687 (4th Cir. 2000) (rejecting the strict scrutiny approach taken in Turner and Gates for assessing reasonable accommodations and adopting a more expansive analysis).

  23. ​28 C.F.R. § 35.152(b)(2).

  24. ​28 C.F.R. § 35.152(b)(2)(i).

  25. ​28 C.F.R. § 35.152(b)(2)(ii)-(iii).

  26. ​28 C.F.R. § 35.152(b)(2)(iv).

 

The AVID Prison Project is a collaboration between The Arizona Center for Disability Law, Disability Law Colorado, The Advocacy Center of Louisiana, Disability Rights New York, Protection and Advocacy for People with Disabilities of South Carolina, Disability Rights Texas, Disability Rights Washington and The National Disability Rights Network.