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.