Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the ADA

I. General ADA Requirements

Title II of the ADA provides that no qualified individual with a disability shall, because of that disability, be excluded from participation in, denied the benefits of, or subjected to discrimination in the services, programs, and activities of all state or local government entities, including law enforcement, corrections, and justice system entities. Such services, programs, and activities include:

• Interviewing and questioning witnesses, victims, or parties, negotiating pleas, assessing individuals for diversion programs, conducting arraignment, setting bail or conditions of release, taking testimony, sentencing, providing notices of rights, determining whether to revoke probation or parole, or making service referrals, whether by prosecutors and public defense attorneys, courts, juvenile justice systems, pre-trial services, or probation and parole services;

• Jail and prison intake and classification evaluations, medical and mental health services, recreational activities, educational and vocational programs, rehabilitative programs, grievance procedures, incentive programs, disciplinary and classification proceedings, housing placements, parole and release programs, and re-entry planning; and

• Law enforcement street interactions, taking and responding to complaints or calls for assistance, vehicle stops and searches, arrests, detentions, interviews, interrogations, and emergency responses.

Title II’s general prohibitions against discrimination are subject to limitations. When an individual poses a "direct threat" to the health or safety of others, i.e., a significant health or safety risk that cannot be mitigated or eliminated by a reasonable modification of policies, practices or procedures, Title II does not require a public entity to permit that individual to participate in, or benefit from, services, programs, or activities.

The Department highlights below some key Title II obligations for state and local government entities. Every agency and justice system is unique, and state and local leaders are the ones who determine the most effective implementation strategies for their agencies. Therefore, to support state and local law enforcement, corrections, and justice systems leaders in complying with these ADA requirements, each ADA obligation is followed by compliance examples. These examples reflect many of the experiences of state and local leaders around the country who have implemented these strategies to comply with the ADA.

Under Title II, state and local government entities must, among other obligations:

• Ensure that people with mental health disabilities or I/DD have an equal opportunity to participate in and benefit from the entities’ programs, services, and activities.

  • Examples of how local law enforcement, corrections, and justice system leaders have facilitated compliance with this obligation:

    • Trained law enforcement officers not to arrest or use force on people with mental health disabilities or I/DD for offenses for which they typically do not arrest or use force on people without disabilities.

    • Developed non-discriminatory eligibility criteria for diversion programs such as community services, specialty courts, or probation programs.

    • Developed non-discriminatory eligibility criteria for early release, parole, or other re-entry programs.

• Make reasonable modifications in policies, practices, or procedures when necessary to avoid disability discrimination in all interactions with people with mental health disabilities or I/DD, unless the modifications would fundamentally alter the nature of the service, program, or activity. The reasonable modification obligation applies when an agency employee knows or reasonably should know that the person has a disability and needs a modification, even where the individual has not requested a modification, such as during a crisis, when a disability may interfere with a person’s ability to articulate a request. Exigencies and safety considerations play a significant role in determining whether a modification is reasonable. Officers need not make modifications that would interfere with their ability to respond to a safety threat, as such modifications would not be reasonable.

  • Examples of how local law enforcement, corrections, and justice system leaders have facilitated compliance with this obligation:

    • Trained law enforcement officers that, when responding to a person in mental health crisis who does not pose a significant safety threat, they should consider providing time and space to calm the situation. Trained officers that, if available and appropriate, they should dispatch a crisis intervention team or officers trained in de-escalation techniques to the scene, or involve mental health professionals.

    • Required court staff to explore reasonable modifications to allow qualified individuals with these disabilities to participate in diversion and probation programs and specialty courts.

    • Implemented policies that, in situations where a prisoner with these disabilities exhibits negative or disruptive behavior that does not pose a significant safety threat, encourage staff to seek assistance from prison-based crisis intervention teams and mental health professionals, involve officers trained in the use of de-escalation techniques, or forego discipline and provide treatment where it is apparent that a prisoner’s behavior was related to a disability.

• Take appropriate steps to ensure that communication with people with disabilities is as effective as communication with people without disabilities, and provide auxiliary aids and services when necessary to afford an equal opportunity to participate in the entities’ programs or activities. Even when staff take affirmative steps to ensure effective communication, not everyone will understand everything in the same way and there will necessarily be a spectrum of comprehension across the population based on many factors, including but not limited to age, education, intelligence, and the nature and severity of a disability. Public entities are not required to take any action that would result in a fundamental alteration in the nature of a service, program, or activity, or undue financial and administrative burdens.

  • Example of how local law enforcement, corrections, and justice system leaders have facilitated compliance with this obligation:

    • Trained staff and officers to use effective communication methods, such as using simple language to convey an oath or question, checking understanding by asking people to explain the communication in their own words, giving people time to read documents, or providing or allowing assistive technology, such as a tablet or picture board.

• Administer services, programs, and activities, including disability services, in the most integrated setting appropriate to the needs of qualified individuals with disabilities. Integrated settings allow people with disabilities to interact with people without disabilities to the fullest extent possible.

  • Examples of how local law enforcement, corrections, and justice system leaders have facilitated compliance with this obligation:

    • Established prison classification and placement procedures that generally place prisoners with disabilities in facilities offering the same programs and opportunities as prisoners without disabilities. Provided prisoners with mental health disabilities or I/DD with the services necessary to permit them to reside and participate in the same programs as prisoners without disabilities.

    • Adopted policies to avoid unnecessarily placing prisoners with mental health disabilities or I/DD in restrictive housing, limited the time these prisoners remain in restrictive housing, provided treatment and enhanced opportunities for out-of-cell therapeutic activities, and continuously monitored the mental health of prisoners in restrictive housing. Also made reasonable modifications to conduct rules and disciplinary, classification, and restrictive housing hearings to help limit the number of prisoners with these disabilities unnecessarily placed in restrictive housing.

Public entities may not:

• Use methods of program administration, including written rules and agency practices that have a discriminatory effect on people with disabilities.

  • Example of how local law enforcement, corrections, and justice system leaders have facilitated compliance with this obligation:

    • Trained and supervised corrections staff to conduct screening interviews of all prisoners upon admission to help identify prisoners with mental health disabilities or I/DD.

• Impose eligibility criteria that screen out people with disabilities from their programs, unless the criteria are necessary for the program.

  • Examples of how local law enforcement, corrections, and justice system leaders have facilitated compliance with this obligation:

    • Forbade use of non-essential eligibility criteria in diversion or re-entry programs that courts or corrections operate, mandate, or contract with.