Ensuring that necessary accommodations are available is particularly important for an individual in the criminal context. The ADA requires all entities in the criminal justice system (including attorneys, courts, jails, juvenile justice entities, police, prisons, prosecutors, and public defenders) to avoid discriminating against people with disabilities.1  This includes making reasonable accommodations to policies, practices, and procedures as well as communicating effectively with people with disabilities.2  The ADA further requires actors in the criminal justice system to avoid unnecessary criminal justice involvement for people with disabilities.3  The obligations placed on the criminal justice system by the ADA have been upheld in cases around the country, further emphasizing the importance and necessity for people with disabilities to be treated equally and have equal opportunity to access the courts.4

If an individual is unable to meaningfully participate in a criminal proceeding because a needed accommodation is not provided, it could be a violation of due process. A defendant in a criminal case must be able to participate in the defense, which necessarily requires an understanding of the proceedings at all stages.

As attorneys, we also have a moral and ethical obligation to ensure that individuals with disabilities are not unfairly punished for having a disability. This is most prevalent in the criminal justice system when individuals with mental illness are arrested for actions that may stem from their disability rather than from an intentional criminal act. For instance, an individual with a developmental or intellectual disability, such as autism, may have a behavioral episode in a public place and be arrested for assault or for causing a disturbance. The individual may not have been acting with criminal intent, but rather may have been experiencing uncontrollable behaviors related to the disability. These individuals should not be in the criminal justice system and penalized for having a disability, and attorneys should advocate for alternative paths to provide these individuals with assistance.

These circumstances are when wearing multiple hats is most important. We need to recognize when an individual would benefit from mental health treatment or intervention instead of incarceration and advocate for the individual’s best interests.

• 1 The Department of Justice’s Civil Rights Division has an excellent guide to the interaction of the ADA and the criminal justice system. This guide includes technical assistance, documents related to DOJ enforcement activities, and DOJ position statements. Civil Rights Div., U.S. Dep’t of Just., Information and Technical Assistance on the Americans with Disabilities Act, ADA.gov.
• 2See Disability Rts. Section, U.S. Dep’t of Justice, ADA Update: A Primer for State & Local Governments (2015).
• 3See Civ. Rts. Div., U.S. Dep’t of Just., Examples & Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act (2017).
• 4See id.

In criminal court, the prosecutor or the court is responsible for ensuring that an accommodation is provided to the defendant. However, it is the responsibility of the defendant or the defense attorney to notify the prosecutor or the court that an accommodation is necessary. The court or prosecutor may not realize an accommodation is needed, but once they are informed of that fact, it is their responsibility and financial obligation to provide the accommodation. The process may vary depending on the particular court, so it is important to ask the clerk whom to contact to request an accommodation.

If the client requires a physical accommodation to access either the building the courtroom, the attorney should contact the clerk to determine what accommodations may be already in place or what options the court may already have. For instance, there may be a portable ramp available that can be put into place so the individual can gain access to the building. If a courtroom is inaccessible due to stairs or other obstacles, there may be a different courtroom that can be used or an elevator.

An accommodation request is not limited to an enumerated list of things or services, but rather is tied to the needs of the client’s disability and what could be provided to enable participation in the court proceeding. It’s important to remember that there must be a nexus between the client’s disability and the accommodation requested in order for the accommodation to be required by the ADA.

For physical access issues, a requested accommodation could be as simple as permitting the client to provide testimony from counsel table rather than the witness box because stairs may be a barrier. Since the COVID-19 pandemic has pushed courts into using technology, an accommodation request could be to allow the individual to testify remotely via videoconferencing technology if physical barriers to the building prevent in-person testimony. For example, if there are only courtrooms on the second floor and the elevator is broken, but the defendant uses a wheelchair, requesting participation via Zoom would be a reasonable accommodation.

For clients with hearing impairments, you can request that the court provide an ASL interpreter. One important thing to keep in mind is that the interpreter provided by the court is an extension of the court and will not be able to interpret confidential communications between an attorney and the client. You will need to make a plan for confidential communications with your client; this could include communicating in writing or hiring your own interpreter solely for confidential communication purposes.

For clients who have service animals, you will need to inform the clerk that the client has a service animal that will be present during court proceedings. You and the client should keep in mind that if the animal is not well-behaved or housetrained, the animal could be barred from being in the courtroom even if it does provide a service.1

• 1See Section 6.

Any accommodation requests for physical access to the building or the courtroom need to be made to the clerk of court. The clerk will be able to direct you to another contact if necessary. It may also be a good idea to notify opposing counsel of the accommodation request, particularly if it may impact presentation of evidence. For instance, a witness with a vision impairment may not be able read a document while on the stand.

An accommodation request for an interpreter should be addressed to the clerk of court or to the prosecutor, depending on the procedure used in that court. The clerk of court is typically the best place to start; if the prosecutor is responsible for obtaining an interpreter, the clerk will be able to let you know.

It is typically not required that requests for accommodations to be made in writing, although depending on how tense interactions with opposing counsel are, having the request in writing may be beneficial. The clerk may ask for the request to be provided in writing as well.

The request should include the client’s name, the specific accommodation being requested, and the reason for the request. As an example, you could request a ramp into the building be provided to allow your client, Joe Smith, to enter the building in his wheelchair. Or you may request that Joe Smith be permitted to attend the hearing via Zoom due to the building lacking accessible entrances to allow him to be present in his wheelchair.