Disabling Our Prisons

Just for starters, about 80 percent of state prison inmates are estimated to have past drug and alcohol dependencies. A New York federal court held that disability law would be violated if an inmate was denied parole because of his history of alcoholism, and federal regulations make it generally illegal to discriminate on the basis of prior, chronic substance abuse.

Then there is AIDS. The Supreme Court has also held that being HIV-positive is a disability — and “HIV infection rates in prison exceed the general population by as much as five or six to one,” according to the Encyclopedia of American Prisons.

And finally there is . . . practically everything else. More than 10 percent of federal and state inmates have learning disorders. Another 4.2 percent suffer mental retardation. Another 7.2 percent are psychotic. And another 12 percent have some separate, lesser psychological malady. Another researcher found that one fourth of all adult males in prison have attention-deficit hyperactivity disorders.

The ADA is an open invitation to any or all of these inmates to sue their wardens. And since “jail-house lawyers” are notoriously litigious — prisoners, after all, have lots of time on their hands and some familiarity with the legal system — a great number of inmates are accepting that invitation every year.

Many prisoner complaints are dubious, to put it mildly. The inmate in Yeskey, for example, was unhappy that he had been rejected for participation in Pennsylvania’s motivational boot camp program because of his medical history of hypertension. The last place a guy with high blood pressure belongs is in a boot camp program, one might think. But no matter: Inmate Yeskey got his day in court.

And — no more surprising, but just as disappointing — the Clinton Justice Department is likely to back him up.

For years now, the disability rights section of the department’s civil rights division has aggressively advanced an expansive interpretation of where, how, and when the ADA applies to the criminal justice system. The department has long argued that the ADA covers even initial police contacts with suspects, for example. And Justice has issued a “notice of possible or actual violations” when mentally ill arrestees are jailed instead of taken to a hospital or health facility.

Yet this stuff is mere peanuts. It’s only after plausibly “disabled” arrestees are charged, convicted, and sent to prison that Clinton administration policy has its greatest — and most disruptive — effect.

Even before the Yeskey case, the Justice Department was using the ADA to pressure state prisons to modify security procedures so that, for example, disabled wives might visit their inmate husbands. The binding precedent won by Mr. Yeskey has strengthened the department’s hand, and it has more than once seen fit to press its expansive interpretation of the ADA in court. With prisons, though, the Justice Department needn’t go that far to get its way. The threat of a lawsuit is more than enough to persuade state prison officials to buckle — and alter their practices, otherwise modern and humane though they might be, wholly beyond recognition.

Probably hundreds and maybe even thousands of times each year, you see, state prison inmates contact the Justice Department, complaining that their “disabilities” are not being “reasonably accommodated.” A small sample of recent such communications gives the typical flavor:

* One inmate said he needed a special “eggcrate mattress.”

* Another prisoner complained of exposure to “environmental pollutants.”

* Inmates in wheelchairs have demanded more time to eat lunch.

* One prisoner complained when guards “reduced his daily allotment of undergarments from five to one.”

* An inmate has challenged the denial of conjugal visits from his HIV-positive partner.

* A prisoner has protested being “prohibited from work assignments in prison mechanical maintenance shop because he has epilepsy.”

* One inmate has grounded an ADA complaint on his rejection by a boot camp program — because he has no hands.

Each of these ADA “allegations” sounds exotic or outright frivolous. But every one — and dozens more just like them — has earned a response from Washington: a Justice Department form letter, addressed to the relevant prison official, that seems designed to intimidate him into acceding to his prisoner’s wishes. “This letter is to officially notify you that a complaint has been filed with the Department of Justice . . . against [you], alleging violations of [the ADA],” a typical missive reads. “We have determined that the complaint is complete and timely . . . and would like to discuss this matter further with you or a designated staff member, in the near future.” Sometimes the point is made explicit: “We are also authorized to take appropriate action, including filing an appropriate action in U.S. district court, to enforce [the ADA] if voluntary compliance is not achieved.”

These letters are signed “Attorney, Civil Rights Division, Disability Rights Section.” They are generally not reviewed by any senior Justice official. Quite frequently, in fact, the “attorney” in question isn’t a permanent department employee at all, just a hired contractor.

Now, what would you do if you were a prison official and got a letter like this? Right: You’d be reluctant to get into a protracted battle with the deep-pocketed litigators and money-grantors at the Justice Department, and so you’d change your practice — even if you thought it was a perfectly reasonable one. Armstrong v. Davis, a private class action brought under the ADA against California’s prisons, has already cost the state millions of dollars with no end in sight as Judge Claudia Wilken, a Clinton appointee, has begun micromanaging the system. No state official in his right mind wants to be responsible for starting something like that. Preemptive capitulation is by far the easiest course.

But it isn’t necessarily the humane course. And it’s rarely cheap. As the above examples suggest, the “accommodations” sought by disabled inmates might well raise health or security concerns for visitors, guards, other prisoners, or the complainant himself. And making those accommodations will inevitably drain money away from other valuable programs in the same prison; corrections budgets are finite.

Yes, sometimes an accommodation for disabled inmates might be reasonable. But as the ADA is now administered in Washington, that is often not a judgment call left to officials on the ground. Under current federal regulations, state decision-makers must agree to any modification sought by a disabled inmate unless they can establish that the change would “fundamentally” alter prison programs or services. Again, under threat of a Justice Department lawsuit, many of them will not even bother to try.

The Supreme Court recently granted review in a case — Florida Department of Corrections v. Dickson — that probably would have exempted states from paying monetary damages to inmates bringing ADA claims. But Dickson was settled at the eleventh hour by the state of Florida. The speculation is that Governor Jeb Bush didn’t want to be seen as attacking the statute his father signed into law. In any event, the case would not have eliminated the many other burdens the ADA imposes on our prisons: their metastasizing legal expenses and their constant subjection to judicial and bureaucratic micromanagement. Such desperately needed relief can be delivered only by Congress.

Don’t hold your breath for that, though. Less than a month after the Yeskey ruling was issued, senators Strom Thurmond and Jesse Helms introduced the State and Local Prison Relief Act, which would remove prisons from coverage by the ADA. The bill has gone nowhere.

Roger Clegg is general counsel of the Center for Equal Opportunity in Washington, D.C.