July 19, 2017
Via Email to reentry@usccr.gov
Catherine E. Lhamon, Chair
Patricia Timmons-Goodson, Vice Chair
Debo P. Adegbile, Commissioner
Karen K. Narasaki, Commissioner
Gail Heriot, Commissioner
David Kladney, Commissioner
Peter N. Kirsanow, Commissioner
Michael Yaki, Commissioner
U.S. Commission on Civil Rights
1331 Pennsylvania Ave NW, Suite 1150
Washington, DC 20425
RE:

Collateral Consequences: The Crossroads of Punishment, Redemption and the
Effects on Communities, Public Briefing of May 19, 2017 – Public Comments

Dear Chair Lhamon, Vice-Chair Timmons-Goodson, and Commissioners:
The undersigned organizations advocate for incarcerated and formerly incarcerated individuals,
including individuals with disabilities. The barriers faced by formerly incarcerated individuals
seeking to live meaningful lives in the community are inextricably intertwined with race, class,
and other demographics, but also with disability. By huge margins, incarcerated and formerly
incarcerated individuals are disproportionately persons with disabilities. Further, at each stage
of the criminal process – arrest, booking, arraignment, trial, sentencing, probation,
incarceration, parole, and reentry – individuals with disabilities face disability-related barriers.
As a result, individuals with disabilities are more likely to be incarcerated, 1 more likely to serve
longer sentences,2 and more likely to return to jail or prison after release. 3
1

See infra notes 5-20 and accompanying text.

2

Paula M. Ditton, Special Report: Mental Health and Treatment of Inmates and Probationers, Bureau of Justice
Statistics, 8 (1999), http://www.bjs.gov/content/pub/pdf/mhtip.pdf (reporting that inmates with disabilities were
sentenced to an average of fifteen more months in prison as compared to other inmates with similar criminal
convictions); Stanford Justice Advocacy Project, Prevalence And Severity Of Mental Illness Among California
Prisoners On The Rise (2017), https://www-cdn.law.stanford.edu/wp-content/uploads/2017/05/Stanford-ReportFINAL.pdf (indicating that, on average, prisoners with mental illness in California receive sentences that are 12%
longer than prisoners convicted of the same crimes but without mental health diagnoses).
3

Council of State Governments, Criminal Justice/Mental Health Consensus Project, 6, 121, 162 (June 2002),
https://csgjusticecenter.org/mental-health-projects/report-of-the-consensus-project/ (“Without adequate
planning to transition inmates with mental illness back into the community, many will quickly return to jail or
prison; recidivism rates for inmates with mental illness can reach over 70 percent in some jurisdictions. …
Offenders with mental illness recidivate at a higher rate than those without mental illnesses, and they often do so

U.S. Commission on Civil Rights
July 19, 2017
Page 2

Dismantling the collateral consequences experienced by individuals leaving jails and prisons
requires close and sustained attention to the disability-related barriers that characterize all
procedures and programs within the criminal legal system. These barriers intersect with race,
sex, and other statuses, and infuse the experience called reentry.
Providing individuals with disabilities with the tools they require to successfully and safely live
in the community is a fundamental right. The unnecessary incarceration and reincarceration of
individuals with disabilities violates the Americans with Disabilities Act, 4 our public policies, and
the principles of a humane and civil society.
I.

Introduction: Incarceration and Disability

The statistics regarding incarcerated individuals with disabilities are overwhelming and must be
reiterated:
•

More than half of all prison and jail inmates suffer from a mental health problem.5

•

About two-thirds of female jail and prison inmates report a history of mental health
problems – a rate significantly higher than the rates for incarcerated men, which are
also significantly higher than the general public. 6

within the first months of release. … [I]ndividuals with mental illness leaving prison without sufficient supplies of
medication, connections to mental health and other support services, and housing are almost certain to
decompensate, which in turn will likely result in behavior that constitutes a technical violation of release
conditions or a new crime.”); see also Paulone v. City of Frederick, 718 F. Supp.2d 626, 636 (D. Md. 2010) (denying
defendants’ motion to dismiss ADA and Rehabilitation Act claims based on state’s failure to provide sign language
interpreter to deaf probationer ordered to attend DUI education class; plaintiff was charged with a probation
violation (which was ultimately dismissed by the court).
4

Henry A. Dlugacz, M.S.W. and Luna Droubi, J.D., The Reach and Limitation of the ADA and its Integration
Mandate: Implications for the Successful Reentry of Individuals with Mental Disabilities in a Correctional
Population, 35 Behav. Sci. Law 135, 146-50 (2017) (arguing that ADA’s integration mandate should provide
protections to individuals reentering society who are at risk of re-institutionalization in some capacity).
5

Doris J. James & Lauren E. Glaze, Special Report: Mental Health Problems of Prison and Jail Inmates, Bureau of
Justice Statistics, 1 (2006), https://www.bjs.gov/content/pub/pdf/mhppji.pdf (showing that estimates from midyear 2005 found a mental health problem for 56% of state prisoners, 45% of federal prisoners, and 64% of jail
inmates).
6

Jennifer Bronson, Ph.D. & Marcus Berzofsky, Dr. P.H., Indicators of Mental Health Problems Reported by Prisoners
and Jail Inmates, 2011-12, Bureau of Justice Statistics, 1 (June 2017),
https://www.bjs.gov/content/pub/pdf/imhprpji1112.pdf (finding that 65.8% of female prisoners and 67.9% of
female jail inmates report a history of mental health problems, compared to 34.8% of male prisoners and 40.8% of
male jail inmates).

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July 19, 2017
Page 3

•

Among jail inmates, 17.1 percent of males and 34.3 percent of females have a “serious
mental illness” – a significant psychiatric disability. 7

•

Similarly, 37 percent of prisoners and 44 percent of jail inmates have been told in the
past by a mental health professional that they have a mental disorder.8

•

In California, where the overall prison population has declined under court orders, the
percentages and absolute numbers of individuals with psychiatric disabilities have
increased. Over 30 percent of California prisoners currently receive treatment for a
“serious mental disorder,” an increase of 150 percent since 2000.9

•

About half of federal and state inmates meet the medical criteria for substance use
disorder. 10 And about 70 percent of state inmates have a history of drug use. 11

•

About 4 to 10 percent of inmates have an intellectual disability, compared to 2 to 3
percent of the general population. 12

•

About 20 to 30 percent of inmates have some form of cognitive disability (such as
traumatic brain injury, attention deficit hyperactivity disorder or specific learning
disabilities such as dyslexia), compared to less than 5 percent in the general
population.13

7

Henry J. Steadman, Ph.D. et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60:6 Psychiatric Services
761, 764 (June 2009), https://csgjusticecenter.org/wp-content/uploads/2014/12/Prevalence-of-Serious-MentalIllness-among-Jail-Inmates.pdf; see also Bronson & Berzofsky, supra note 6, at 1 (finding that 14% of state and
federal prisoners, and 26% of jail inmates, reported experiences that met the threshold for serious psychological
distress).
8

Bronson & Berzofsky, supra note 6, at 1.

9

Stanford Justice Advocacy Project, supra note 2, at 1, 3 (reporting that over the past decade, California’s overall
prison population has decreased by approximately 40,000 inmates, or 25 percent, and that over the same period
of time, the raw number of prisoners with mental illness increased by 25 percent).

10

Christopher J. Mumola & Jennifer C. Karberg, Drug Use and Dependence, State and Federal Prisoners, 2004,
Bureau of Justice Statistics, 1 (2006), https://www.bjs.gov/content/pub/pdf/dudsfp04.pdf (indicating that 53% of
state prisoners and 45% of federal prisoners meet the criteria for substance use disorder).
11

Id. at 2.

12

Leigh Ann Davis, M.S.S.W., M.P.A., People with Intellectual Disability in the Criminal Justice System: Victims &
Suspects (Aug. 2009), http://www.thearc.org/page.aspx?pid=2458.
13

Jennifer Bronson, Ph.D., Disabilities Among Prison and Jail Inmates, 2011–12, Bureau of Justice Statistics, 3,
Table 1 (2015), https://www.bjs.gov/content/pub/pdf/dpji1112.pdf (showing that 19.5% of prison inmates, and
30.9 percent of jail inmates, have a cognitive disability).

U.S. Commission on Civil Rights
July 19, 2017
Page 4

•

The rate of diagnosed HIV infection among inmates in state and federal prisons is more
than five times greater than the rate among people who are not incarcerated.14

•

Almost 10 percent of incarcerated individuals have a mobility disability – around twice
the rate of the general population. 15

•

Incarcerated individuals are three to four times as likely as the general population to be
blind or to have another vision disability. 16

•

Incarcerated individuals are two to three times as likely to be deaf or hard of hearing. 17

•

Up to 80 percent of incarcerated youth are believed to have a special education
disability, but about 33 percent are identified as having a disability. The reported rate is
far higher than the rate found in public school programs. 18

•

Nearly all returning prisoners have chronic health conditions requiring treatment or
management.19

•

The experience of incarceration, which includes isolation, inadequate mental and
physical health care, and additional physical and mental traumas, causes and
exacerbates disabilities. 20

14

Centers for Disease Control and Prevention, HIV Among Incarcerated Populations (Mar. 14, 2017),
https://www.cdc.gov/hiv/group/correctional.html.
15

Bronson, supra note 13, at 3, Table 1 (reporting that 10.1% of prison inmates and 9.5 percent of jail inmates
have an ambulatory disability, compared to 5.1% and 3.7% in the respective control groups).

16

Id. at 3, Table 1 (reporting that 7.1% of prison inmates and 7.3 percent of jail inmates have a vision disability
compared to 2.1% and 1.7% in the respective control groups).
17

Id. at 3, Table 1 (reporting that 6.2 percent of prison inmates and 6.5 percent of jail inmates are deaf or hard of
hearing, compared to 2.6% and 1.9% in the control groups).
18

Mary Magee Quinn et al., Youth With Disabilities in Juvenile Corrections: A National Survey, 71 Exceptional
Children 339, 342 (Spring 2005), http://helpinggangyouth.homestead.com/disability-best_corrections_survey.pdf;
Southern Poverty Law Center, SPLC Launches 'School To Prison Reform Project' To Help At-Risk Children Get Special
Education Services, Avoid Incarceration (Sept. 10, 2007), https://www.splcenter.org/news/2007/09/11/splclaunches-school-prison-reform-project-help-risk-children-get-special-education.
19

Kamala Mallik-Kane & Christy A. Visher, Health and Prisoner Reentry: How Physical, Mental, and Substance
Abuse Conditions Shape the Process of Reintegration (Urban Institute, 2008),
http://www.urban.org/sites/default/files/publication/31491/411617-Health-and-Prisoner-Reentry.PDF.
20

See, e.g., Jamelia Morgan, Caged In: Solitary Confinement’s Devastating Harm On Prisoners With Physical
Disabilities, American Civil Liberties Union (2017), https://www.aclu.org/files/caged-in/010916-ACLUSolitaryDisabilityReport-Accessible.pdf; Anna Guy, Locked Up and Locked Down: Segregation of Inmates with
Mental Illness, AVID Prison Project (Sept. 8, 2016), http://avidprisonproject.org/assets/locked-up-and-lockeddown----avid-prison-project.pdf; Christie Thomas and Joseph Shapiro, Inside Lewisburg Prison: A Choice Between A
Violent Cellmate Or Shackles (NPR, Oct. 26, 2016), http://www.npr.org/2016/10/26/498582706/inside-lewisburg-

U.S. Commission on Civil Rights
July 19, 2017
Page 5

In short, people with disabilities are massively over-represented within the criminal legal
system. This is not, we would posit, due to any inherent criminality of people with various
identities and statuses, including the status of being a person with a disability, but to the
pervasive bias and discrimination both within the criminal legal system and without.
Intersectional Barriers.
Multi-variable data analyses are seldom available to examine or demonstrate the intersections
between disability and other statuses – such as race, ethnicity, religion, sex, sexual orientation,
gender identity, and income – in the context of incarceration.21 The barriers and discrimination
associated with disability intersect with the other forms of discrimination disproportionately
experienced by incarcerated and formerly incarcerated individuals, such as discrimination
based on race, ethnicity, religion, sex, sexual orientation, gender identity, and class. Many
incarcerated and formerly incarcerated individuals experience overlapping or intersecting social
identities – and related systems of oppression and discrimination.
The data that exists is consistent with intersecting forms of discrimination. The Vera Institute
recently summarized the disproportionate levels of mental health disabilities and other chronic
conditions reported by female inmates:
More than half of women in jails report having a current medical problem – compared
to 35 percent of men. Approximately two-thirds of jailed women report having a chronic
condition—compared to half of men in jails and 27 percent of people in the general
population. … The extent to which women in jail report having experienced trauma is
startling: 86 percent report having experienced sexual violence in their lifetime, 77
percent report partner violence, and 60 percent report caregiver violence. 22
prison-a-choice-between-a-violent-cellmate-or-shackles (detailing “double cell solitary” and painful punitive
restraint practices employed at federal prison in Lewisburg, Penn.); Joseph Shapiro, Lawsuit Says Lewisburg Prison
Counsels Prisoners With Crossword Puzzles (NPR, June 15, 2017) (describing lack of counseling and medication for
federal inmates with serious mental illness); see also Margo Schlanger, How the ADA Regulates and Restricts
Solitary Confinement for People with Mental Disabilities (American Constitution Society, May 2016),
https://www.acslaw.org/sites/default/files/How_the_ADA_Regulates_and_Restricts_Solitary_Confinement.pdf.
21

See, e.g., Equal Rights Center, Unlocking Discrimination: A DC Area Testing Investigation About Racial
Discrimination and Criminal Records Screening Policies in Housing 7-10, 33-34 (2016) (“Unlocking Discrimination”),
https://equalrightscenter.org/wp-content/uploads/unlocking-discrimination-web.pdf (recommending that
researchers, policymakers, advocates, and service providers should use an explicitly intersectional approach in the
collection and analysis of data, development and implementation of law and policy, and delivery of services, noting
that data on racial disparities within the criminal legal system are not disaggregated by sex, and describing
common experiences of women inmates that may differ from their male counterparts such as domestic violence).
22

Elizabeth Swavola, et al., Overlooked: Women and Jails in an Era of Reform, 9-11 (Vera Institute, 2016)
(“Overlooked”), https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-womenand-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf; see also supra notes 6-7 and
accompanying text.

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Underlying these data are the distinct experiences of women involved in the criminal legal
system. The Equal Rights Center explains:
[I]n order to understand the complex nature of women’s involvement in the criminal
legal system, it is necessary to take into account that many … factors are interrelated
when it comes to how they play out in any one woman’s life. Further, their impacts are
often compounding. For example, domestic violence is a leading cause of homelessness
for women, and many incarcerated women have experienced both domestic violence
and homelessness. Domestic violence and other types of abuse lead to mental health
issues, another experience that is extremely common for women involved in the
criminal legal system. In turn, “incarcerated women with a history of trauma and
accompanying mental health concerns are more likely to have difficulties with prison
adjustment and misconduct.” The interplay and accumulation of all of the above factors,
in addition to discrimination, make re-entry for many women an insurmountable
challenge.23
However, disparities in disability rates may also reflect bias and inequalities in community
resources. For example, studies indicate that white prisoners are more likely than black
prisoners to have been told that they had a mental disorder.24 A 2015 study on New York City’s
jail mental health services showed that older white men were directed toward mental health
services, while younger black and Hispanic men were subjected to a punishment response and
sent to solitary confinement.25 I don't think that fact reflects different rates of mental illness,”
stated Dr. Robert Cohen, a member of the New York City Board of Correction, and a former
director of medical and mental health services at the Rikers Island jail. “I think it demonstrates
racial bias.” 26
Intersectional data collection and analysis must be employed and expanded to understand the
intersecting barriers and collateral consequences faced by many formerly incarcerated
individuals with disabilities.

23

Unlocking Discrimination, supra note 21, at 10-11 (citing National Resource Center on Justice Involved Women,
Ten Truths That Matter When Working With Justice Involved Women: Executive Summary (Apr. 2012),
http://cjinvolvedwomen.org/wp-content/uploads/2015/09/Ten_Truths_Brief.pdf).

24

Bronson & Berzofsky, supra note 6, at 4 (finding that white prisoners (50%) were more likely than black prisoners
(30%) to have ever been told they had a mental disorder); Fatos Kaba, M.A., et al., Disparities in Mental Health
Referral and Diagnosis in the New York City Jail Mental Health Service, 105:9 Am J Public Health 1911 (Sept. 2015)
(citing studies), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4539829/.
25
26

Kaba, supra note 24.

Manuel Villa, The Mental Health Crisis Facing Women in Prison (The Marshall Project, June 22, 2017),
https://www.themarshallproject.org/2017/06/22/the-mental-health-crisis-facing-women-in-prison#.fDu7Obssa.

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II.

Disability Barriers to Successful Reentry – Prior to Release.

A.

Failure of Jails and Prisons to Provide Disability Access to Prison Programming, Including
Reentry Programming and Parole.

Much prison programming – including educational, vocational, and therapeutic programming,
reentry programming, and programs that allow inmates to earn credits toward an earlier
release date – is inaccessible to inmates with disabilities. Inmates with mobility disabilities are
excluded from participating in many programs because they are provided in facilities with
architectural barriers. 27 Deaf and blind inmates typically have no access to effective
communication including sign language interpreting and accessible materials – even for parole
hearings and pre-release programs. 28 Some prisons and jails, including the federal Bureau of
Prisons, fail to provide special education services to incarcerated youth with disabilities. 29
Inmates with a range of disabilities including psychiatric disabilities are often explicitly excluded
on the basis of disability from certain programs, including employment, reentry programs, early
release programs, fire camp, and programs that reduce sentences.30 Related, inmates who are
27

See, e.g., AVID Prison Project, Making Hard Time Harder: Programmatic Accommodations for Inmates with
Disabilities Under the Americans with Disabilities Act, Disability Rights Washington, 19-21, 29, 32 (June 2016)
(“Making Hard Time Harder”), http://avidprisonproject.org/Making-Hard-Time-Harder/assets/making-hard-timeharder---pdf-version.pdf (describing architectural barriers preventing access to programs in Alabama, Florida, Iowa,
New Hampshire, New York, South Carolina, Washington, including credit-earning opportunities); Cruel
Confinement: Abuse, Discrimination and Death Within Alabama’s Prisons, A Special Report from the Southern
Poverty Law Center and the Alabama Disabilities Advocacy Program, 19 (June 2014) (“Cruel Confinement”),
https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/cruel_confinement.pdf,
(with one exception, “every facility contains architectural barriers for [Alabama] prisoners with mobility
impairments.”); Pierce v. County of Orange, 526 F.3d 1190, 1217-23 (9th Cir. 2008) (reversing district court and
finding that county violated Title II of the ADA by failing to provide equal access to vocational and other activities
and programs to inmates with disabilities).
28

Making Hard Time Harder, supra note 27, at 22-27 (describing failures to provide communication access to deaf
and hard of hearing inmates in in Alabama, Connecticut, Delaware, Florida, Idaho, Illinois, New York, Pennsylvania,
and Vermont, including to access medical appointments, counseling, peer support groups, telecommunications,
pre-release programs, and parole hearings); Cruel Confinement, supra note 27, at 18-19; Disability Rights Florida v.
Jones, No. 4:16-cv-00047, Complaint for Declaratory and Injunctive Relief, at 5-7 & 12 (N.D. Fla., Jan. 26, 2016),
http://www.floridajusticeinstitute.org/wp-content/uploads/2016/01/drf-complaint.pdf (describing failure to
provide sign language interpreters and other auxiliary aids and services to deaf and hard of hearing inmates,
including for programs required for release).
29

Ryan J. Reilly and Julia Craven, Federal Bureau Of Prisons Fires Head Of An Obama-Era Education Effort, Putting
Reform Under Trump In Doubt, Huffington Post (May 19, 2017), http://www.huffingtonpost.com/entry/bureau-ofprisons-education-reform_us_591f2289e4b094cdba53c398 (noting that prior to cancelled reforms, special
education classes were not available in every facility or, if they were, they were not up to standards).
30

Making Hard Time Harder, supra note 27, at 31 (describing exclusion of New York inmates with psychiatric
disabilities from rehabilitative program); Cruel Confinement, supra note 27, at 18 (describing exclusion of Alabama
inmates with disabilities, including deaf and blind inmates, from work release program); Declaration of Michael W.
Bien in Support of Motion for Preliminary Approval of Class Action Settlement, at 9, Hecker v. California Dep’t of

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Page 8

assigned to a particular housing unit or work status based on disability are often categorically
excluded from programs that are available to other inmates.31 Inmates who are housed “out of
level” – at a higher security level than otherwise warranted – based on disability-related need
are also excluded from programming as a result. 32 This can be exacerbated by bias in risk
assessment.33
Inmates with disabilities – including inmates who are blind or who have cognitive or intellectual
disabilities – are often excluded from important programs due to the prison’s use of
discriminatory eligibility criteria and the failure to provide reasonable modifications or assistive
technology. 34
Parole hearings are themselves infused with disability barriers – inmates with disabilities are
typically not accommodated during hearings, 35 and parole decisions are often intertwined with
negative inferences drawn from the inmate’s disability status. 36 The Massachusetts Supreme

Corrections and Rehabilitation (E.D. Cal., Aug. 5, 2014) (No. 2:05-CV-02441) (“Hecker Settlement”),
http://rbgg.com/wp-content/uploads/Declaration-of-Michael-Bien-in-Support-of-Joint-Motion.pdf (noting ongoing
disputes regarding exclusion of inmates with psychiatric disabilities from reentry hubs, minimum security facilities
and community-based programs, and lack of agreement on exclusion of prisoners with psychiatric disabilities from
CDCR’s fire/conservation camps); Disability Rights Florida, supra note 28, at 9, 24 (describing exclusion of deaf
inmates from prison industry and work release jobs).
31

Hecker Settlement, supra note 30, at 7-8 (requiring prison system to provide program access to California
inmates with significant psychiatric disabilities housed at the Enhanced Outpatient Program (EOP) level of care,
including the opportunity to earn milestone credits which reduce time to be served); Making Hard Time Harder,
supra note 27, at 28, 32 (describing exclusion of New York inmate using a placed on “medically unassigned”
program status from participating in programs that allow earning of merit time toward early release date), 33
(describing exclusion of Washington inmates housed in the mental health unit from sex offender programming).
32

Making Hard Time Harder, supra note 27, at 5-6 (discussing problem of inmates with psychiatric disabilities being
housed at higher security levels on the basis of disability).
33

Overlooked, supra note 22, at 15 (noting that assessment tools classify women as higher risk than actual threat,
and that such over-classification bars women from many jail-based educational, vocational, and rehabilitative
programs, work assignments, and other privileges, and may make them ineligible for pretrial release programs).
34

Making Hard Time Harder, supra note 27, at 7, 21, 25, 28-31, 33 (describing, inter alia, failure to accommodate
Vermont inmate with learning disabilities in educational program required for release, and exclusion of
Connecticut inmate from job based on the purported safety and security concern posed by his wheelchair); Peter
Blanck, Disability in Prison, 26 S. Cal. Interdisc. L. J. 309, 311-15 (Spring 2017) (discussing exclusion of, and failure to
accommodate, inmates with disabilities).
35

Making Hard Time Harder, supra note 27, at 23 (describing lack of communication access during parole hearing
for inmate with hearing loss).

36

For example, California regulations governing suitability for parole explicitly identify the fact that “[t]he prisoner
has a lengthy history of severe mental problems related to the offense” as a “circumstance[ ] tending to indicate
unsuitability” for parole. 15 CCR § 2281. In Massachusetts, the Parole Board has told the public defenders who
represent inmates at parole hearings that if they want to present mental health evidence at the hearing, they will
have to arrange for and pay for it. There is no mechanism for them to do so. See also Crowell v. Massachusetts

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Page 9

Court recently discussed the application of the ADA to parole:
First, the board clearly may not categorically exclude any prisoner by reason of his or
her disability. Second, both the ADA and the parole statute require the board to take
some measures to accommodate prisoners with disabilities. Where the board is aware
that a mental disability may affect a prisoner's ability to prepare an appropriate release
plan in advance of a parole hearing, the board should make reasonable modifications to
its policy, for example, by providing an expert or other assistance to help the prisoner
identify appropriate postrelease programming. In accommodating prisoners with mental
disabilities, the board should also consider whether there are risk reduction programs
designed to reduce recidivism in those who are mentally disabled.
These provisions do not require the board to make modifications that would
“fundamentally alter” the nature of parole. … The interaction of these requirements
means that once the board became aware that the plaintiff's disability could potentially
affect his ability to qualify for parole, it had the responsibility to determine whether
reasonable modifications could enable the plaintiff to qualify, without changing the
fundamental nature of parole. 37
Without equal access to programming, including pre-release programs and procedures, inmates
with disabilities serve more time and are less prepared than other inmates for their return to
the community.
B.

Failure of Jails and Prisons to Provide Reentry Programming Tailored to the Needs of
Individuals with Disabilities.

For many inmates with disabilities, a critical component of pre-release programming is
assistance with disability-related benefits such as SSI, SSDI, veterans’ disability benefits, and
health coverage like Medicaid. These programs provide a minimal safety net to enable formerly
incarcerated individuals with disabilities to live in the community. Such programs also function
as an entry point to other community-based programs, such as supported housing. Importantly,
these benefits do not preclude educational, vocational, or employment activities, but can
provide a basic foundation for survival.
Individuals who are incarcerated may enroll in Medicaid and Medicare during incarceration
(although they cannot access benefits until release). 38 Individuals who are incarcerated may
Parole Bd., 74 N.E.3d 618, 625 (2017) (discussing board’s consideration of disability as negative factor in making
parole determination).
37
38

Crowell, 74 N.E.3d at 624 (2017) (citations omitted).

HealthCare.Gov, Incarcerated people, https://www.healthcare.gov/incarcerated-people/; Elizabeth Priaulx,
Promoting Medicaid Coverage Upon Re-Entry, National Disability Rights Network (2016),
http://www.ndrn.org/images/webcasts/2016/Prisoner_Re-Entry3-16-16.pdf.

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July 19, 2017
Page 10

apply for SSI or SSDI shortly before release. In some cases, individuals already covered by
Medicaid or a disability benefit prior to incarceration can have their benefits suspended during
incarceration, and reinstated upon release. 39
Many inmates with disabilities easily meet the requirements for these benefits, but need
assistance to successfully navigate the cumbersome government bureaucracy. 40 Obtaining SSI
or SSDI, for example, depends upon the submission of a detailed written application
accompanied by medical and psycho-social records and reports, as well as compliance with the
bureaucratic process. Those applicants who are initially denied require legal assistance with the
appeals process.
While such assistance requires the investment of resources, linking inmates to Medicaid before
release achieves cost savings to communities by reducing uncompensated care upon release.
And studies demonstrate a three-to-one economic return for monies spent on benefits
advocacy work. 41 Free technical assistance for programs providing pre- and post-release
benefits advocacy is available from the federally funded SOAR (SSI/SSDI Outreach, Access and
Recovery) initiative. 42
The best practice is to complete and submit disability benefits applications prior to release,
with the goal being to provide persons with immediate access to benefits upon their release
from custody. 43 In the year ending June 2016, California’s pre-release benefits program
39

Priaulx, supra note 38; U.S. Government Accountability Office, Medicaid: Information on Inmate Eligibility and
Federal Costs for Allowable Services, http://www.gao.gov/assets/670/665552.pdf ; Brian Bowden and Austin
Igleheart, NACo releases new Medicaid and County Jails presentation focused on the Medicaid Inmate Exclusion
(Mar. 15, 2017), http://www.naco.org/blog/naco-releases-new-medicaid-and-county-jails-presentation-focusedmedicaid-inmate-exclusion; National Association of Counties, Health Coverage & County Jails: Suspension vs.
Termination (2016), http://www.naco.org/sites/default/files/documents/2016-suspension-termination-FinalCitations.pdf; Margo Schlanger, Prisoners with Disabilities: Individualization and Integration, Michigan Law, Public
Law and Legal Theory Research Paper Series, Paper No. 544, 26-28 (March 14, 2017),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2932940.
40

Making Time Harder, supra note 27, at 28 (describing need of Colorado inmate for assistance in reinstating his
SSDI benefit).

41

Katherine E. Meiss & Abbi Coursolle, Investing in People to Save Counties Money: Best Practices for Moving
People with Disabilities from General Assistance to SSI, Health Consumer Alliance (Sept. 2010), http://wclp.org/wpcontent/uploads/2015/06/SSIAdvocacyBestPracticesRpt.pdf; Economic Roundtable, Dividends of a Hand Up: Public
Benefits of Moving Indigent Adults with Disabilities onto SSI, Health Consumer Alliance (2011),
https://economicrt.org/wp-content/uploads/2011/03/Dividends_of_a_Hand_Up_2011.pdf.
42

Deborah Dennis & Daniel J. Abreu, SOAR: Access to Benefits Enables Successful Reentry, 72 Corrections Today 82
(Apr. 2010); see also Bazelon Center for Mental Health Law, Lifelines: Linking to Federal Benefits for People Exiting
Corrections – Blueprint for Action (Oct. 2009), http://www.bazelon.org/wp-content/uploads/2017/01/LifelinesAll.pdf.
43

Social Security Administration, Program Operations Manual System (POMS), SI 00520.910 Prerelease
Agreements with Institutions, https://secure.ssa.gov/poms.nsf/lnx/0500520910. (indicating that while a formal

U.S. Commission on Civil Rights
July 19, 2017
Page 11

submitted almost 2,000 SSI/SSDI applications and more than 6,600 MediCal applications for
inmates with psychiatric disabilities, but capacity remains a problem: during the same period,
the state prison system released more than 7,900 inmates with psychiatric disabilities.44
C.

Failure of Jails and Prisons to Link Inmates to Accessible Reentry Programs in the
Community.

As inmates with disabilities approach their release date, they are often denied effective
referrals to community reentry programs because, on a systemic basis, jails and prison fail to
contract and make arrangements with such programs. 45 For example, referral lists of available
homeless shelters,46 supportive housing, 47 and substance treatment programs 48 may not
include appropriate wheelchair accessible options. Available substance abuse programs may
exclude individuals with certain disabilities, such as individuals with certain psychiatric
disabilities. Employment programs often refuse to serve or accommodate individuals with
disabilities. 49 And community reentry programs of all kinds fail to provide sign language
interpreting or accessible materials. 50
agreement is the best practice, the SSA is required to follow the pre-release procedure even in the absence of an
agreement).
44

California Rehabilitation Oversight Board, September 15, 2016 C-ROB Report, 49-54 (Sept. 15, 2016),
https://www.oig.ca.gov/media/crob/reports/C-ROB_Annual_Report_September_15_2016.pdf.
45

See, Debra A. Harley et al., Vulnerability and Marginalization of Adult Ex-Offenders with Disabilities in
Community and Employment Reintegration, 45 Journal of Applied Rehabilitation Counseling 6 (Winter 2014),
https://www.questia.com/library/journal/1P3-3556747921/vulnerability-and-marginalization-of-adult-exoffenders, citing Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry, in, Studies in Crime and
Public Policy (2003).
46

See, e.g., Pei-Shu Ho et al., Health and Housing among Low-Income Adults with Physical Disabilities, 18 Journal of
Health Care for the Poor and Underserved 902, 908-909 (Nov. 2007), https://muse.jhu.edu/article/222763/pdf
(reporting that homeless wheelchair users in some D.C. shelters had given up on maintaining their personal
hygiene due to the inaccessibility of the shelter bathrooms).
47

See, e.g., Jon Pynoos et al., Aging in Place, Housing and the Law, 16 The Elder Law Journal 77 (2008),
http://publish.illinois.edu/elderlawjournal/files/2015/02/Pynoos.pdf (describing the lack of available physically
accessible supportive housing, thus driving individuals to institutional settings).
48

See, e.g., S.L. West et al., Physical inaccessibility negatively impacts the treatment participation of persons with
disabilities, 32:7 Addiction Behavior 1497 (July 2007), https://www.aahd.us/abstract/physical-inaccessibilitynegatively-impacts-the-treatment-participation-of-persons-with-disabilities/ (over half of addiction treatment
providers approached by persons with SCI and nearly half of those approached by persons with TBI were unable to
provide services due to physical barriers).
49

Making Time Harder, supra note 27, at 30 (describing need of Washington inmate with visual impairment for
referral to specialized work release program).

50

See Levy v. Louisiana Department of Public Safety And Corrections, No. 3:16-cv-00542-JWD-EWD, Class Action
Complaint (M.D. La., Aug. 16, 2016), http://www.washlaw.org/pdf/pdf/ldpsc_complaint_2016_08_16.PDF
(describing lack of sign language interpreters when the terms and conditions of their probation and/or parole are
initially discussed with formerly incarcerated deaf plaintiffs, during plaintiffs’ required meetings with their

U.S. Commission on Civil Rights
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The failure to ensure that prisoners with disabilities are connected to accessible programs
including housing at the time of their release can have devastating consequences, including
homelessness. It can also trigger a delay in an inmate’s release date, a form of disability
discrimination. In Prisoner A v. State of Vermont, Disability Rights Vermont brought an action on
behalf of a state prisoner alleging that he had served his minimum sentence, but continued to
be held at Southern State Correctional Facility because the defendants failed to implement
disability-related support in the community. 51 The case settled with services, and the inmate
was released.
In Massachusetts, an inmate with psychiatric disabilities was initially granted parole following a
2010 hearing, conditioned on his being admitted to a Department of Mental Health (DMH)
“secured facility.” However, the DMH concluded that the inmate did not qualify for the
services. The inmate remains incarcerated. 52 Similarly, in the U.S. Virgin Islands, an individual
found “not guilty by reason of insanity” remains incarcerated – with no legal charges pending –
for more than three years due to a lack of an alternative placement.53
III.

Disability Barriers to Successful Reentry – At and After Release

A.

Access Barriers in Reentry Activities and Programs .

Beginning on the very day of release, inmates with disabilities face overwhelming access
barriers. Frequently, individuals are sent back into the community with a few dollars in their
pocket, a bus ticket, and two or three days’ worth of needed medication. Wheelchair accessible
transportation is not ensured. Adequate amounts of medication are not provided. Medical
appointments are not arranged. Disability benefits and health coverage may not yet be in place.
And typically, community reentry programs are not accessible to inmates who are deaf, blind,
who use wheelchairs, and who have psychiatric disabilities.
In Brad H. v. City of New York, jail inmates receiving mental health services at Rikers Island
brought litigation alleging an unlawful failure to provide discharge planning. Upon release from
jail, inmates were not provided any mental health services, government benefits assistance,
housing referrals, or any other services or planning, but were instead taken by bus to a subway
probation and/or parole officers, during required post-release counseling or other educational classes, and at
other times).
51

Prisoner A v. State of Vermont, No. 2:15-cv-000221, Verified Complaint (D. Vt., Oct. 15, 2015),
https://www.clearinghouse.net/chDocs/public/PC-VT-0006-0002.pdf. Similarly, Disability Rights Oregon reports
that one of their clients, an inmate with autism and psychiatric disabilities, experienced a one-year delay in parole
because of the state’s failure to identify a residential placement.
52

In the Matter of Wilfred Dacier, No. W62511 (Massachusetts Parole Board, Nov. 4, 2015),
http://www.mass.gov/eopss/docs/pb/lifer-decisions/2015/dacierrod2015.pdf.
53

Carty v. Mapp, No. 94-78, Docket No. 936 (Plaintiffs’ Quarterly Report) at 14 (D. V.I., Nov. 18, 2016).

U.S. Commission on Civil Rights
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station between 2:00 and 6:00 AM and given $1.50 plus two subway tokens. 54 The plaintiffs’
experts presented evidence that, without adequate discharge planning, the plaintiffs “face the
immediate threat of psychological relapse, with a greater likelihood of the concomitant return
to lives of drug and/or alcohol abuse, homelessness, lawlessness, and danger to themselves
and/or others.” 55 The court granted the plaintiffs a preliminary injunction requiring that the
defendants provide discharge planning.56
In 2003, the parties settled the case with an agreement that the City would provide the 15,000
people who receive psychiatric treatment in City jails each year with discharge planning
services, including continued mental health care, case management, and assistance in accessing
public benefits and housing. 57 Despite this positive advance, the agreement’s implementation
has faltered and is still the subject of court monitoring. 58
Without discharge planning and accessible reentry programming, released inmates with
significant disabilities face far greater risks of homelessness, medical and physical crisis, and a
return to incarceration.59 Successful reentry is aided by programs that bridge the walls that
separate prison from the outside world, and that integrate jail and prison health and mental
health care with community health and mental health care. 60
In an analogous context, the Second Circuit upheld a district court’s order finding that New York
City was in violation of the ADA and Rehabilitation Act for failing to ensure that indigent
individuals with HIV have effective access to the social welfare benefits and services available to
eligible New York City residents. The district court explained:
[A]s the Second Circuit has observed, “[i]t is not enough to open the door for the
handicapped ...; a ramp must be built so the door can be reached.” Plaintiffs in this case
54

Brad H. v. City of N.Y., 185 Misc. 2d 420, 423 (Sup. Ct. N.Y.), aff'd, 716 N.Y.S.2d 852 (Sup. Ct. N.Y. App. 2000); see
also Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999) (finding violation of Eighth Amendment based on failure
to provide supply of medications to inmates upon discharge).

55

Brad H., 185 Misc. 2d at 425.

56

Brad H., 185 Misc. 2d at 431.

57

Brad H., No. No. 117882/99, Stipulation of Settlement (Sup. Ct. N.Y., Jan. 8, 2003),
https://www.clearinghouse.net/chDocs/public/JC-NY-0017-0001.pdf.
58

See, e.g., Brad H., No. No. 117882/99, Thirty-Sixth Regular Report of the Compliance Monitors, 8 (Oct. 6, 2016),
https://mhp.urbanjustice.org/sites/default/files/Brad%20H%20Report%2036%20FINAL%202016%20_10_06_signe
d.combined.pdf (“Defendants demonstrated on-going lack of compliance with the foundational requirement that
they provide a supply of psychotropic medications to eligible class members as they leave jail.”).
59
60

See supra note 3.

Margo Schlanger, Prisoners with Disabilities: Individualization and Integration, Michigan Law, Public Law and
Legal Theory Research Paper Series, Paper No. 544, 23-26 (March 14, 2017),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2932940.

U.S. Commission on Civil Rights
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Page 14

contend that the [Division of AIDS Services and Income Support] was created to serve as
a reasonable accommodation to their disability, a “ramp,” as it were, to assist them in
accessing and maintaining the social welfare benefits and services to which they are
entitled. Plaintiffs claim the “ramp” of DASIS is necessary under the ADA and the Rehab.
Act to ensure them meaningful access to the benefits and services upon which they
depend, and for which they are fully qualified. …
The evidence presented demonstrated an alarming failure to provide plaintiffs with the
intensive case management and assistance that DASIS was intended to provide. In the
unsatisfactory performance of these services, DASIS cannot ensure plaintiffs meaningful
access to their subsistence benefits. …
The reasonable accommodation concept embodied in the federal disability statutes is
meant to address the unique hurdles that people with disabilities face, and it recognizes
that mere equality of treatment is not enough. … Plaintiffs have alleged, and
demonstrated, that defendants have failed to provide them with the reasonable
accommodations required by the federal disability statutes, thus failing to ensure them
meaningful access to the benefits to which they are entitled.61
Consistent with these principles, programs for linking individuals with disabilities to
government-funded benefits and services before and after release should be expanded and
replicated. One example is the DC Jail Advocacy Project, which assists D.C. residents with
serious mental illness who are returning to the community from jail and prison by connecting
them to government-funded benefits and services. 62 Others include the After Incarceration
Support Systems (AISS) of the Hampden, Massachusetts Sheriff’s Office 63 and Span, Inc., in
Boston, Massachusetts. 64 Programs that provide these kinds of supports reduce recidivism.65
61

Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 207-08, 210, 212-13 (E.D.N.Y. 2000), aff'd sub nom. Henrietta D. v.
Bloomberg, 331 F.3d 261 (2d Cir. 2003).

62

University Legal Services, DC Jail and Prison Advocacy Project, http://www.uls-dc.org/JPAP.htm.

63

See Hampden County Sheriff’s Department Massachusetts, AISS, http://hcsdma.org/aiss-3/.

64

See Span, Inc., Our Services, https://spaninc.org/services.

65

Rani Hoff et al., The Effects of a Jail Diversion Program on Incarceration: A Retrospective Cohort Study, 27 Journal
of American Academy of Psychiatric Law 377 (1999) (reporting that jail diversion participants spent an average of
132.33 fewer days in jail in the year following diversion than those who qualified but did not participate); Brian
Case et al., Who Succeeds in Jail Diversion Programs for Persons with Mental Illness? A Multi-Site Study, Behavioral
Sciences and the Law 661 (2009) (finding that half of jail diversion participants were not arrested in the twelve
months following completion, and all diversion participants spent less time in jail in the year after diversion than
the year before); Travis Parker et al., Jail Diversion Programs: Finding Common Ground, 23 American Jails 25 (2009)
(reporting that participants in New York City’s jail diversion program have serious mental illness and multiple
misdemeanor charges, and receive initial assessment, weekly substance abuse meetings, case management,
service planning, and counseling; successful participants had an 18% decline in recidivism); John Buntin, Miami’s
Model for Decriminalizing Mental Illness in America, Governing (August 2015),
http://www.governing.com/topics/public-justice-safety/gov-miami-mental-health-jail.html (suggesting that jail

U.S. Commission on Civil Rights
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B.

Access Barriers in the Conditions of Parole or Community Supervision.

Formerly incarcerated individuals with disabilities may need reasonable modifications to
successfully comply with the conditions of their parole (or other form of community
supervision). Individuals with psychiatric or cognitive disabilities may need appointment
reminders or drop-in scheduling, or other modifications. Individuals with a range of disability
may need assistance with getting to a parole appointment. Typically these modifications and
supports are not available.
Individuals who are deaf and hard of hearing need effective communication such as a sign
language interpreter in order to meet with their parole officer and to understand the rules and
conditions of their release. 66 Instead, sign language is rarely available for meetings or required
programs. In North Carolina, a deaf woman recently reported that she was found in violation of
her parole when she left a drug treatment class because there was no interpreter; she is now in
prison.67
Moreover, parolees with disabilities are often required to meet additional parole conditions.
For example, California’s parole division operates parole outpatient clinics. Referral to the

diversion program in Miami-Dade County, where serious mental illness is extraordinarily prevalent, reduced
recidivism rates to about 20% from nearly 72% in one year; also indicating that Miami-Dade County shut down one
of its jails following successful implementation of comprehensive diversion program); Ann O’Reagan Keary, Mental
Health Diversion for Criminal Defendants: One Judge’s Experience, 54 The Judge’s Journal 18 (2015) (reporting that
participants in Washington D.C. mental health court were 51% less likely to be rearrested than comparison group);
Henry J. Steadman & Michelle Naples, Assessing the Effectiveness of Jail Diversion Programs for Persons with
Serious Mental Illness and Co-Occurring Substances Use Disorder, 23 Behavioral Sciences and the Law 163, 166-167
(2005), http://www.addictioncounselorce.com/articles/101367/assessing.pdf (finding that jail diversion impact on
recidivism rates observed in both individuals charged with violent and nonviolent offenses); Peter J. Sartorius &
Vondie Woodbury, Service Delivery Innovation Profile: Michigan Pathways Project Links ex-prisoners to Medical
Services, Contributing to a Decline in Recidivism, Agency for Healthcare Research & Quality (Aug. 2014)
https://innovations.ahrq.gov/profiles/michigan-pathways-project-links-ex-prisoners-medical-services-contributingdecline (showing that returning citizens in Michigan who were given access to a wide range of services had
recidivism reduction from 46% to 21.8% for two-year parolees, 17.7% for eighteen-month parolees, and 9.3% for
one-year parolees); Dennis P. Culhane et al., Public Service Reductions Associated with Placement of Homeless
Persons with Severe Mental Illness in Supportive Housing, 13 Public Housing Debates 107, 130 (2002) (finding that
people with psychiatric disabilities in supportive housing had 84.8% reduction in prison days); Evan Marie Lowder,
The Role of the SOAR Model in Successful Community Reintegration: Final Report, 11-12 (2015),
https://ddp.policyresearchinc.org/wp-content/uploads/2015/09/Lowder_Final-Report.pdf (detailing two studies,
one funded by the Department of Justice, that found jail detainees with psychiatric disabilities had lower rates of
recidivism and fewer arrests when connected to Medicaid).
66

Making Hard Time Harder, supra note 27, at 27 (describing denial of sign language interpreter to deaf parolee in
Delaware during meetings with his parole officer, and achievement of settlement agreement requiring the
provision of sign language interpreters for all probation and parole meetings).

67

Email with Disability Rights North Carolina (on file).

U.S. Commission on Civil Rights
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Page 16

outpatient service is accompanied by a parole condition requiring attendance. 68 In other words,
missing a clinic appointment can mean return to jail or prison. And by statute, violation of that
condition requires return to incarceration without the benefit of work time credits. 69 Parole
failures are very high for persons with psychiatric and intellectual disabilities. 70
In an interview, Tammy Seltzer, the director of the DC Jail and Prison Advocacy Project,
reflected on this issue:
I think of one client in particular who had cycled in and out of jail and prison because he
could not comply with the conditions of his release. It wasn’t until after, when the Jail
and Prison Advocacy Project had negotiated accommodations for him, under
supervision, did he finally have a different life. He’s now been in the community for over
two years! He had his supervision terminated early because of how well he was doing.
And that was really just a matter of looking at his mental illness and how it impacted his
behavior and ability to comply with the terms, and say, “Well how do we make changes
that can help him be successful?” 71
This access-based approach is not made available to most formerly incarcerated individuals
with disabilities.
C.

Access Barriers Related to the Lack of Olmstead Compliance in the Community.

After release, individuals with significant disabilities need access to services and supports in the
community, including mental health, medical health, and supported housing. These are the
68

There is no evidence that court-ordered treatment is more effective than voluntary treatment. Burns et al.,
Effect of increased compulsion on readmission to hospital or disengagement from community services for patients
with psychosis: follow-up of a cohort from the OCTET trial, The Lancet Psychiatry (Oct. 2015); Maughan et al., A
Systematic Review of the Effect of Community Treatment Orders on Service Use, 49 Social Psychiatry and
Psychiatric Epidemiology (2014); Burns et al., Community treatment orders for patients with psychosis (OCTET): a
randomised controlled trial, Lancet (May 2013); Kisely et al., Compulsory community and involuntary outpatient
treatment for people with severe mental disorders, CDSR (Feb. 2011); Churchill et al., International experiences of
using community treatment orders, Institute of Psychiatry (2007); Kisely et al., Randomized and on-randomized
evidence for the effect of compulsory community and involuntary out-patient treatment on health service use:
systematic review and meta-analysis, 37 Psychological Medicine (2007); Ridgely et al., The Effectiveness of
Involuntary Outpatient Treatment, RAND Health (2001); Steadman et al., Assessing the New York City involuntary
outpatient commitment pilot program, 52 Psychiatric Services (2001).
69

CAL. PENAL CODE § 3057(d)(2)(B).

70

See, e.g., J.M. LePage et al., Effects of structured vocational services on job-search success in ex-offender veterans
with mental illness: 3-month follow-up, 48 Journal of Rehabilitation Research & Development 277 (2011)
http://www.rehab.research.va.gov/jour/11/483/pdf/doaj/lepage.pdf (finding that over 66 percent of ex-offender
veterans with mental illness or substance dependence were arrested for probation or parole violations).
71

Council for Court Excellence, Interview with Tammy Seltzer (May 2016), http://www.courtexcellence.org/newsevents/interview-with-tammy-seltzer.

U.S. Commission on Civil Rights
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Page 17

cost-effective disability services and supports that are required by the ADA’s integration
mandate, as affirmed by the U.S. Supreme Court’s ruling in Olmstead v. L.C., 527 U.S. 581
(1999).
Implementation of the Olmstead mandate is far from complete in any state. 72 Hundreds of
thousands of people with disabilities remain on waiting lists for home and community-based
services. 73 Increased services are particularly needed for individuals with physical disabilities
and mental illnesses. 74
In crafting Olmstead plans and settlements, public and private advocates should take care to
explicitly include the needs of disabled individuals at risk of incarceration.75 When these needs
are included, and states provide such relevant elements as timely and accessible support to
individuals with mental illness experiencing a behavioral health crisis, incarceration may be
prevented. 76
D.

Barriers Related to Criminal Records.

As detailed by several witnesses who testified before the Commission, formerly incarcerated
individuals with disabilities face an array of barriers created by criminal record screens, barriers
that intersect with and exacerbate other disability-related barriers.

72

U.S. Senate, Health, Education, Labor, and Pensions Committee, Separate and Unequal: States Fail to Fulfill the
Community Living Promise of the Americans with Disabilities Act (July 2013),
https://www.help.senate.gov/imo/media/doc/Olmstead%20Report%20July%2020131.pdf.
73

Id. at 2 & 18.

74

Id. at 2 & 19.

75

See, e.g., United States of America v. Georgia, No. 1:10-CV-249-CAP, Settlement Agreement (N.D. Ga. Oct. 19,
2010), https://www.ada.gov/olmstead/documents/georgia_settle.pdf (describing target population as individuals
with severe and persistent mental illness, including those “who are chronically homeless, and/or who are being
released from jails or prisons,” and noting that “[i]ndividuals with serious and persistent mental illness and forensic
status shall be included in the target population, if the relevant court finds that community service is
appropriate”); Amanda D. v. Hassan and United States of America v. New Hampshire, No. l:12-cv-53-SM, Class
Action Settlement Agreement (D.N.H. Feb. 12, 2014), https://www.ada.gov/olmstead/documents/nh-finalsettlement.pdf (describing second priority area for target population as serving individuals with severe mental
illness “who have had criminal justice involvement as a result of their mental illness in the last two years”); United
States of America v. Delaware, No. 11-591-LPS, Settlement Agreement (D. Del. July 6, 2011),
https://www.ada.gov/delaware.htm (describing priority area for target population as serving individuals with
severe and persistent mental illness “who have been arrested, incarcerated, or had other encounters with the
criminal justice system in the last year due to conduct related to their serious mental illness”).
76

Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, Michigan Law, Public Law
and Legal Theory Research Paper Series, Paper No. 515, 22-24 (May 24, 2016),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783963 (discussing elements of Delaware Olmstead
settlement).

U.S. Commission on Civil Rights
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For example, many public housing authorities and private landlords deny housing to individuals
based on criminal history. 77 These exclusions occur even though there is no empirical evidence
establishing a relationship between a criminal record and an unsuccessful tenancy. 78 On the
other hand, housing instability is significantly associated with recidivism. A Georgia study found
that every time a parolee changed his address, his likelihood of being re-arrested increased by
25 percent. 79
Similarly, as detailed by experts at a 2011 hearing before the Equal Employment Opportunity
Commission, criminal background checks in employment are often broadly employed, without
consideration of relevant factors such as the nature of the offenses, the passage of time, and
the type of job. At the same time, unemployment is closely associated with recidivism.80
Unnecessary criminal record screens in housing and employment constitute race discrimination
based upon their disparate racial impact. 81 Moreover, a recent study found disparate treatment
in the application of such screens in housing – criminal background screens were implemented
more harshly for black female applicants than for white female applicants. 82
These screens also constitute disability discrimination based on their impact on individuals with
disabilities. And for many formerly incarcerated individuals, these screens are part of an
experience of multi-variable discrimination – discrimination based on multiple statuses such as
race, ethnicity, sex, and disability.
IV.

Youth With Disabilities and the Criminal Legal System.

While not a specific focus of the Commission’s public briefing on May 19, 2017, the unique
77

Marie Claire Tran-Leun, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to
Federally Subsidized Housing, Sargent Shriver National Center on Poverty Law (Feb. 2015),
http://www.povertylaw.org/files/docs/WDMD-final.pdf; Unlocking Discrimination, supra note 19, at 11.
78

Merf Ehman & Anna Reosti, Tenant Screening in an Era of Mass Incarceration: A Criminal Record is No Crystal
Ball, N.Y.U. J. Legis. & Public Pol’y Quorum 1, 20 (Mar. 3, 2015) (reviewing studies).

79

Id.

80

U.S. Equal Employment Opportunity Commission, Meeting of July 26, 2011,
https://www.eeoc.gov/eeoc/meetings/7-26-11/ (linking to testimony of witnesses, including Cornell William
Brooks, https://www.eeoc.gov/eeoc/meetings/7-26-11/brooks.cfm, and Stephen Saltzburg,
https://www.eeoc.gov/eeoc/meetings/7-26-11/saltzburg.cfm).
81

U.S. Equal Employment Opportunity Commission, Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 25, 2012),
https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; First Amended Complaint, Fortune Society v.
Sandcastle Towers Housing Development Fund Corp. (E.D.N.Y. May 1, 2015) (No. 1:14-cv-06410-VMS)
https://www.clearinghouse.net/chDocs/public/FH-NY-0023-0002.pdf; Unlocking Discrimination, supra note 19, at
27-28.
82

Unlocking Discrimination, supra note 21, at 20-26.

U.S. Commission on Civil Rights
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Page 19

needs of youth with disabilities in the juvenile and adult criminal legal systems are worthy of
mention here.
Incarcerated and formerly incarcerated youth have extremely high rates of disability. 83 Most
youth leave the criminal legal system and return to their communities. However, this transition
is often rocky. According to the National Juvenile Information Exchange, two-thirds of youth
leaving a facility do not return to school after their discharge. Many are released without being
enrolled in Medicaid or other health insurance programs, and as many as 75 percent are
arrested within three years of their discharge.84
And despite an earlier understanding that juvenile criminal proceedings and outcomes be
maintained in confidence, many juvenile criminal records are easily accessible to individuals
both inside and outside the system, creating barriers to education, employment, housing, and
licensing. 85
In addition to the barriers discussed throughout these comments, youth with disabilities face
unique needs due to their minority. These include access to education, including special
education, and their need for legal supervision by adults, whether those adults are their
parents, family members or state provided caregivers. These youth, like all youth their age, also
have developmentally related educational needs such as driver training, budgeting, and other
independent living skills that need to be met before and after they are incarcerated. Such
programs must be adapted to address disability related needs.
Many youth with disabilities qualify for the transition services required by the IDEA 86 and for
employment services provided by vocational rehabilitation services, but do not receive them
while incarcerated or after release.
In short, to promote successful reentry for youth, pre-release and post-release planning for
youth with disabilities must address these areas, and must include effective and affirmative
supports to access relevant benefits and programming.

83

See note 18, supra ( “Up to 80 percent of incarcerated youth are believed to have a special education disability,
but only about 33 percent are identified as having a disability. The reported rate is far higher than the rate found in
public school programs.”).
84

Benjamin Chambers, What is Re-entry and Aftercare for Youth, Juvenile Justice Information Exchange (2015),
http://jjie.org/2015/03/23/what-is-re-entry-and-aftercare-for-youth/.
85

Future Interrupted: The Collateral Damage Caused by Proliferation of Juvenile Records, Juvenile Law Center,
http://jlc.org/sites/default/files/publication_pdfs/Future%20Interrupted%20-%20final%20for%20web.pdf.

86

The IDEA requires that older students receive a plan for a coordinated set of services designed to move them
successfully from school to post-school settings. See 34 C.F.R. §§ 300.1 & 300.43.

U.S. Commission on Civil Rights
July 19, 2017
Page 20

V.

Recommendations for Reducing and Eliminating Collateral Consequences for Formerly
Incarcerated Individuals with Disabilities.

Systemic reform of reentry programming and reentry conditions is needed to include
individuals with disabilities and to remove the disability barriers that result in disproportionate
numbers of formerly incarcerated individuals with disabilities becoming homeless and/or being
reincarcerated.
Reducing and eliminating collateral consequences for formerly incarcerated individuals with
disabilities requires the dismantling of systemic disability-related barriers that characterize the
experience called reentry. Necessary reforms include:
•

The full implementation and enforcement of the ADA to provide inmates with
disabilities with an equal and equally effective opportunity to access important
programs prior to and following release, including –
Within the prison or jail system:


Well-trained, properly financed ADA Coordinators with sufficient budget and
status to ensure the accommodation and access needs of incarcerated
individuals.



Policies that require all programs offered within the prison or jail to include and
accommodate prisoners with disabilities.



Requirements that all prisons provide robust special education and related
services to youth with disabilities.



Affirmative steps to equalize treatment of inmates who have been excluded
from programming on the basis of disability, including by waiving prerequisites
and granting equivalent time credits or early release.



Effective notice to inmates of their rights to reasonable modifications of policies
practices, and procedures, and to auxiliary aids and services when needed to
have equal access to programs and services within the system, including medical
services, religious services, educational and vocational programs, disciplinary
hearings, parole hearings, recreational services, and programs providing for early
release, reduced sentences, or reduced security.



Training for guards and disciplinary officers on how to recognize and
accommodate prisoners with disabilities (along with the training to understand
that prisoners with disabilities will be the rule rather than the exception).

U.S. Commission on Civil Rights
July 19, 2017
Page 21



Request for Proposals for all services and contracts within the prison or jail must
specify not only compliance with disability rights laws, but also a preference for
providers and contractors who have successful experience in incorporating
prisoners with a wide range of disabilities.



Standard communication access provisions must be in place – including standing
contracts for sign language interpreters and real-time captioners for prisoners
with hearing disabilities and accessible print materials for prisoners who are
blind.

Upon release and within parole (or other form of community supervision):


Direct connections to housing including supported housing, health care,
community mental health services, drug treatment programs.



Disability access to parole itself including meetings with parole officers and to
any programs required as a condition of parole.



Policies that explicitly recognize that parole officers work with large percentages
of people with disabilities, and that outline their legal obligations to provide
reasonable modifications to policies, practices and procedures in order to
accommodate disabilities.



Training for parole officers on: how to recognize and accommodate clients with
disabilities (along with the training to understand that clients with disabilities will
be the rule rather than the exception); and how to affirmatively engage with
clients about the types of accommodations that might provide them an equal
opportunity to succeed in their program



Waiving of the conditions and requirements of supervision wherever disability
access, modifications, auxiliary aids, or accommodations are not available.



Notice to clients of their rights to reasonable modifications of policies, practices
and procedures, and their right to access auxiliary aids and services when
needed to have equal access to programs to meeting the requirements and
opportunities of parole.



Request for Proposals for all services and contracts providing re-entry services or
community supports that specify not only compliance with disability rights laws,
but also a preference for providers and contractors who have successful
experience working with formerly incarcerated people with disabilities.

U.S. Commission on Civil Rights
July 19, 2017
Page 22

•

Substantially increased capacity for assisting individuals with disabilities to apply for
disability and health benefits prior to and following release.

•

The implementation of the Olmstead integration mandate for individuals with
significant developmental, intellectual, and psychiatric disabilities who are at risk of
incarceration, in order to strengthen community mental health systems, intensive case
management, and other community supports.

•

The rebalancing of public expenditures from incarceration to community-based housing
and supports, consistent with the principles of Olmstead.

•

The elimination of criminal records barriers to housing and employment.

The AVID (Amplifying Voices of Inmates with Disabilities), a project of Disability Rights
Washington, recently produced a short documentary about the experience of reentry for
formerly incarcerated individuals with disabilities entitled On The Outs: Reentry for Inmates
with Disabilities. On The Outs follows three inmates with various disabilities, including vision
impairment, brain injury, and mental illness, through all stages of the reentry process. The
documentary depicts each person’s experience in prison prior to release, on their release date,
and life on the “outs” after release. The signatories urge the Commission to view this
documentary at their next meeting, as it provides powerful insights into the barriers faced by
individual with disabilities upon release from jail or prison.87
CONCLUSION
Formerly incarcerated inmates with disabilities face tremendous barriers to thriving and
surviving in the community upon release. Dismantling these barriers to reentry requires
sustained and close attention to eliminating disability discrimination at each step of the
criminal legal system, and to implementing the disability supports required to realize the ADA’s
integration mandate as recognized in Olmstead.
At this critical time, we urge the Commission to take a leadership role in advancing this work.
The undersigned commit to working together with you going forward.
And please do not hesitate to contact Claudia Center at ccenter@aclu.org, 415-343-0762, or
Diane Smith-Howard at diane.smithhoward@ndrn.org, 207-522-2871, to follow up or to
request additional information.

87

This video may be accessed at http://www.rootedinrights.org/videos/criminal-justice/on-the-outs-reentry-forinmates-with-disabilities-avid-prison-project/.

U.S. Commission on Civil Rights
July 19, 2017
Page 23

Respectfully submitted,
American Civil Liberties Union
Amplifying Voices of Inmates with Disabilities (AVID) Prison Project of Disability Rights
Washington
Center for Public Representation
DC Jail & Prison Advocacy Project, University Legal Services
Disability Rights Education & Defense Fund, Inc. (DREDF)
Equal Rights Center
Helping Educate to Advance the Rights of Deaf communities (HEARD)
Judge David L. Bazelon Center for Mental Health Law
National Alliance on Mental Illness
National Association of the Deaf
National Disability Rights Network
National Federation of the Blind
Prison Law Office
Rooted in Rights
Rosen Bien Galvan & Grunfeld LLP
The Arc
Who Speaks for Me?