The U.S. Bureau of Justice estimates 64% of people incarcerated in state and federal prisons suffer from mental illness either at the time of their initial incarceration or in the 12 months leading up to imprisonment. That means that at least 64% of people who enter prison implicate the scrutiny of their confinement conditions under the mental disability provisions of the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
The ADA and the Rehabilitation Act prohibit discrimination against people on the basis of their disabilities. Most courts interpret the ADA and the Rehabilitation Act to cover the same protections and enforce the same requirements. The specificity of the Rehabilitation Act is that it applies in particular to organizations that receive federal financial assistance. Under the ADA, a disability is any “physical or mental impairment that substantially limits one or more major life activities.” The ADA does not offer an exhaustive list of mental illnesses that constitute a “psychiatric disability” under the Act. However, it does suggest that the term “disability” be construed “in favor of broad coverage.” In determining protection, the ADA focuses on how the impairment affects a person’s “major life activities.” A person with a substantially limiting impairment is still considered disabled for the purposes of the ADA if they engage in factors meant to mitigate their symptoms, such as therapy or medication. Successful treatment does not prevent the application of the ADA or the Rehabilitation Act. Though the ADA does not provide an exhaustive list of disabilities that warrant protection, further interpretation and guidelines make it clear that the impact of a person’s impairment is much more significant than society’s acceptance of the impairment as a “mental illness.” For instance, society is more resistant to acknowledging substance use as a mental illness compared to generalized anxiety disorder, but the ADA protects both to the same extent.
Using this understanding of mental disabilities, current methods of incarceration violate the ADA and the Rehabilitation Act because most methods of incarceration have a disparate negative effect on persons with mental illness compared to persons without.
Prisons are not equipped to adequately treat persons with mental illnesses. Once incarcerated, persons with mental illnesses struggle to conform to the structure of prisons. This struggle leads to abuse from guards and other inmates and extreme declines in mental health. In prison, persons with mental illness are exposed to conditions that exacerbate their symptoms, expound on their symptoms, and consequently place them at a higher risk of recidivism. Due to the manifestation of their symptoms, persons with severe mental illness are more likely to face further punishment such as solitary confinement and are less likely to be released early compared to persons without mental illnesses. The structure of prisons and current correctional practices inherently disadvantage persons with mental illnesses compared to those without.
How might the ADA and the Rehabilitation Act be used to combat current methods of incarceration as applied to persons with mental illnesses? The Rehabilitation Act applies to federal agencies, such as the Bureau of Prisons (BOP), and Title II of the ADA applies to state facilities, regardless of whether they receive federal funding. Title II abrogates state sovereign immunity for conduct that violates the Fourteenth Amendment. To bring a lawsuit under the ADA or Rehabilitation Act, a person who is incarcerated must prove three things: (1) they are disabled within the meaning of the ADA; (2) they qualify to receive certain services or benefits, or participate in a program or activity of a public entity; and (3) they are excluded from, not permitted to benefit from, or have been subjected to discrimination in the program because of their disability. The Rehabilitation Act requires the showing of a fourth element: that the facility receives federal funding.
Plaintiffs have used these Acts to challenge a variety of prison conditions and actions. Most often persons incarcerated sue in response to their direct exclusion from prison programs or lack of accommodations. Plaintiffs have also sued for lack of medical care, often incorporating Eighth Amendment claims in these lawsuits. But some courts have found that the ADA and Rehabilitation Act apply to other prison conditions as well, such as solitary confinement and placement in an infirmary unit. Though somewhat successful in the above applications, courts have limited the efficacy of these laws through a number of exceptions to discrimination, some of them framed in overly broad terms, such as any policy that serves “legitimate penological interests.” Incarceration centers continue to fall short and persons with mental illnesses continue to suffer discrimination on the basis of their mental disability. In the future, these discrimination claims might be bolstered by strong conjunctive use of the Fourteenth and Eighth Amendments. Specific to Montana, persons incarcerated may try to sue in protest of prison conditions through the largely underutilized Dignity Clause.
Veiled by half-hearted claims to rehabilitate and reduce recidivism rates, the United States prison system overwhelmingly fails to meet any penological goal other than punishment. Its design ensures that persons incarcerated, particularly those struggling with mental illness, come out of their sentence without any tools to succeed. It is a system designed to perpetuate intergenerational cycles of violence and incarceration. It doesn’t work, and it needs change. Other prison models, premised on human dignity, are available to us and prove to be more effective. An overhaul of the current prison system in favor of a more productive model will take significant efforts, one of these efforts may be through the ADA and Rehabilitation Act.
Nearly two-thirds of people incarcerated are held in a system structured to discriminate against their disabilities. The federal government enacted measures to prevent this discrimination—it’s time to enforce these protections.