ADA Routinely Violated by Prisons in the case of Deaf Prisoners
by McCay Vernon, Ph.D.
Over the last forty years, Congress has enacted numerous laws specifically designed to assure disabled individuals access to the programs, activities, services, public facilities and other resources available to the general population. This access was originally stipulated in the Bill of Rights, but made more specific by these newer laws and regulations. The most well-known of these are the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA). Together, this legislation plus state statutes combine to embody the some of the best legislation for the disabled of any country in the world.
The tragedy is that federal, state and local officials, including law enforcement, blatantly ignore and fail to enforce these laws effectively, especially in three major areas. These are prisons (Musumerci, 2006; Terhue, 2004-2005; and Tucker, 1988), mental health facilities (Geer, 2003; Vernon & Leigh, 2007) and schools (Geer, 2003).
Recently the U.S. Supreme Court has held that states could be liable under Title II of the ADA for this kind of uncon-stitutional conduct (Musumerci, 2006). The cases involved were United States v. Georgia and Goodman v. Georgia, 126 S. Ct. 877 (2006).
In another case the court found that the state prison system violated ADA by inter alia failing to notify deaf prisoners about accommodations available under ADA, failing to give deaf prisoners the opportunity to access TDDs (deaf tele-phones) and visual alarms as well as the failure to provide interpreter services for educational and vocational classes, alcohol and drug counseling, medical and mental health treatment and disciplinary, grievance and parole hearings (Musumerci, 2006). Because these services were available to other prisoners and the prison failed to provide the accom-modations necessary to make them available to deaf prisoners, the prison was liable. (For other cases involving deaf people and laws relevant to them, see Musumerci, 2006).
This article will focus primarily on prisons and their deaf prisoners. However, much of the information has generality to all disabilities and to many other types of public facilities. The reason for the focus on deafness is because it is one of the least understood of all disabilities and the most neglected in prisons. This is due primarily to its invisibility. Other disabili-ties, such as cerebral palsy, amputations, crippling disorders, etc. are instantly identified and reacted to. In addition, partly because it is not visible, deafness is not seen as being as serious as other handicaps. However, in a prison environment, it is one of the most debilitating.
For readers of Prison Legal News, the reason deaf prisoners are of special interest is that they provide attorneys rep-resenting them not only the opportunity to help of group of prisoners in a desperate situation, but also a chance to sue for sizeable damages, including attorney’s fees, due to the rights that have been denied as a result of a failure of prisons to obey ADA regulations. In many cases these deaf prisoners’ rights were also violated during their arrests, interrogations, pleadings, sentencings, and/or trials (King & Vernon, 1999; Miller, 2001; Miller & Vernon, 2001; Vernon & Miller, 2005; Vernon, Raifman & Greenberg, 1006). [Editor’s Note: PLN has reported extensively on the rights of deaf and disabled prisoners in the past. A key issue is that the ADA and RA both have their own attorney fee provisions which are not capped by the Prison Litigation Reform Act, thus attorneys who prevail on ADA and RA claims for prisoners can bill their normal market rates.]
Prelingual Deafness and Prison
For any person who is deaf, prison is a horror. For example, even with hearing prisoners, their number one fear is that they will be raped; the second is that they will be killed (Ross & Richards, 2003). That both of these fears are justified is confirmed by the data on prison murder, rape and suicide (Human Right’s Watch, 2001). In a prison’s hostile, isolating and threatening environment, the possibility of psychological breakdown greatly increases. Some prisoners commit sui-cide. The problem is compounded by the paucity of mental health services in prisons and jails and the lack of training for correctional officers as to how to handle such cases.
While information supplied by the Human Rights Watch is not specific to the deaf population, these data and common sense would dictate the situation is much worse for prisoners who are deaf because they are far more vulnerable and subject to attack than hearing prisoners. One reason for this is that they are viewed as being unable to report instances in which they are victimized due to their communications limitations as outlined below (Miller, 2001; Vernon & Miller, 2005).
To understand why this is true, it is important to become familiar with some basic facts about prelingual deafness, i.e., deafness which has its onset at three years of age or younger. Because these individuals never heard language spoken or do not remember it if they heard it, most never learn to speak intelligibly. Just as you and I cannot speak Russian be-cause we have not heard it spoken, prelingually deaf individuals cannot speak English (Vernon & Andrews, 1990). For the same reason, most deaf people fail to master the syntax and the vocabulary of English.
Consequently, as a group they are extremely poor readers and have low educational levels. For deaf prisoners, the problem is even worse because many come from poor homes, attended inferior schools, and have a general history of deprivation. The consequences are exemplified by a study of 99 deaf prison prisoners conducted by Miller (2001). It is the largest in-depth study ever done of this kind of population.
Of these 99 prisoners, 76 lost their hearing before learning to speak or use language. Their mean educational achievement level when they entered prison as adults was second grade, seventh month. By federal government stan-dards, this means they were functionally illiterate. That is despite the fact that their IQ as measured by a performance IQ test was well within the average range (Miller, 2001) In fact, the IQs of deaf people in general are equal to those of hear-ing people even though their educational achievement levels are significantly lower (Vernon, 2005). This is because of the limitations deafness places on the acquisition of information.
The Burden of Being Deaf in Prison
In prison, the low educational levels of most deaf prisoners coupled with their restricted communication creates major problems. For example, they have severe limitations in understanding what people say to them. They have to depend on lipreading, which is greatly overestimated as a means of communication. Even under ideal conditions, for example, good lighting, face-to-face contact with the speaker, a speaker who articulates clearly, etc., good lipreaders can understand only about five percent of what is said to them (Vernon & Andrews, 1990).
In addition, the overwhelming majority of prelingually deaf people have speech that is unintelligible. Also, because their educational level is that of a second grader, they can communicate only simple messages by writing and understand equally simple messages by reading.
As a result of these limitations, their communication with detention facility employees, fellow prisoners, medical staff, and others is primitive at best. They cannot understand disciplinary hearings or present effectively their side of the story, nor do they understand the printed material on prison rules and regulations.
In sum, they are in an almost totally compromised position in the dangerous, treacherous environment of rape, abuse and violence that characterizes most prisons.
Sign Language and Access
If introduced to the prison setting, American Sign Language (ASL) and interpreters who know ASL could provide deaf prisoners with access to much of what their deafness otherwise denies them. Most people who acquired their deafness in the first 15 or 16 years of their life learn sign language. They use it to communicate with each other, just as hearing peo-ple use English.
Sign Language interpreters, plus assistive devices such as vibrating alarm clocks, hearing aids, special telephones, video phones, flashing alarm devices, etc. can give deaf people basically the same access to information, basic human rights, educational services, mental health counseling, hospital care, drug therapy, prison rules and regulations, religious services, etc. that hearing prisoners have. It is this access that is promised disabled prisoners in the Bill of Rights, ADA, IDEA, and other civil rights legislation that is being so blatantly denied them in state, federal and local prisons and jails. By bringing to the attention of the court this failure to implement these laws in the case of deaf prisoners, damages can be obtained for deaf prisoners and fees will be awarded to their attorneys. Of equal importance, these cases can be costly to the prison and will result in their correcting the injustices, which is far less damaging than ignoring them as is now the case.
Geer, SS. (2003) When “equal” means “unequal”—and other legal conundrums for the deaf community. In C. Lucas (Ed.) Lan-guage and the Law in Deaf Communities (pp. 82-167) Washington, DC : Gallaudet University Press
Human Rights Watch (2003) Ill Equipped: U.S. Prisons and Offenders with Mental Illness. New York: Human Rights Watch
Human Rights Watch (2001) No Escape: Male Rape in U.S. Prisons. New York: Human Rights Watch
King, N. & Vernon, M. (1999) Unique legal issues facing deaf defendants. The Florida Defender, VII, #1, pp. 11-15
Miller, K.R. (2001) Forensic issues of deaf offenders. Unpublished doctoral dissertation. Lamar University, Beaumont, TX
Miller, K.R. & Vernon, M. (2001) Linguistic diversity in deaf defendants and due process. Journal of Deaf Studies and Deaf Educa-tion, 6, #3, pp. 226-234
Musumerci, M.B. (2006) Confronting sentences that silence: The Americans with Disabilities Act”s effective communications man-date for prisoners and probationers who are deaf. Journal of Poverty Law and Policy, 39, #11, pp. 627-638
Ross, J.I. & Richards, S.C. (2002) Behind Bars. Indianapolis Indiana: Alpha Books
Tucker, B.P. (1988) Deaf prison prisoners: A time to be heard. Loyola of Los Angeles Law Review. Pp. 1-71
Vernon, M. (2008) Fifty years of research on the intelligence of deaf and hard-of-hearing children. A review of he literature and dis-cussion of implications. Journal of Deaf Studies and Deaf Education, 10 #3.
Vernon, M. & Andrews, J.E. (1990 Psychology of Deafness: Understanding Deaf and Hard-of-hearing People. New York: Longman Press
Vernon, M. & Leigh, I.W. (2007) Mental health services for people who are deaf. American Annals of the Deaf, 152, #4, pp. 374-381
Vernon, M. & Miller, K. (2005) Obstacles faced by deaf people in the criminal justice system. American Annals of the Deaf, 150, #3, pp. 283-291
Vernon, M.; Raifman, L.J.; Greenberg. S.F.; Montiero, B. (2001) Forensic pretrial police interviews of deaf suspects: Avoiding legal pitfalls. Journal of Law and Psychiatry, 24, pp. 43-59