Prison Reform and Olmstead

For too many people, the United States’ routine practice of institutionalizing people with disabilities in hospitals is not just history, but a memory.

In 1999, the U.S. Supreme Court attempted to end the practice of states moving people with disabilities out of their communities and into isolated hospital facilities, holding in Olmstead v. L.C. that people with disabilities have a right to access community-based services.

Since Olmstead, however, states have arguably traded hospitals for jails and prisons. Law professor Jamelia N. Morgan of the University of Connecticut School of Law advocates applying the same legal principle established in Olmstead to improve prison conditions and disrupt the mass incarceration of people with disabilities.

In Olmstead, the Court held that, under the Americans with Disabilities Act (ADA), state and local government must provide community-based services for people with disabilities when three conditions are met. First, the services must be reasonably available. Second, the services must be appropriate for the person using them. Finally, the person using the services must not oppose community-based services.

People with disabilities have used this framework—known as the “integration mandate”— to fight segregation in a variety of settings. Graduate students with physical disabilities, for example, have used the integration mandate to obtain accessible on-campus housing. And like the plaintiffs in Olmstead, a handful of people with mental and psychiatric disabilities continue to bring Olmstead claims every year to return to their communities after periods of unnecessary hospitalization.

Morgan notes that, despite this progress, the integration mandate has rarely been applied to jails and prisons—the most isolated settings of all. Attempting to apply the mandate in prisons, however, reveals a “paradox of inclusion,” given that “the central features and functions of prisons” are fundamentally at odds with “the animating spirit of Olmstead.”

According to Morgan, resolving this paradox could transform the rights of all people who are incarcerated—and not just those with disabilities.

Morgan argues that upholding the integration mandate in prisons would force sweeping changes to the system, requiring states to reimagine policies around discipline, security, use of force, and the provision of mental health care.

She bases her argument on the ADA regulation that codifies the integration mandate. The relevant provision requires state and local government to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The most integrated settings allow people with disabilities “to interact with non-disabled persons to the fullest extent possible.”

The U.S. Department of Justice, which implements the ADA, has interpreted the “most integrated setting” standard broadly. Settings that contravene integration include places where only people with disabilities live as well as places where people face regimented schedules and lack privacy, autonomy, and access to the outside world—all circumstances characteristic of prisons.

Morgan identifies two scenarios in which litigants have tested the waters to apply the integration mandate to prisons.

First, people have brought Olmstead claims to secure their rightful reentry to the community. In 2019, six people brought a test case alleging that New York State had improperly prolonged their incarceration by failing to provide the community-based housing and supports they needed for successful reentry to the community.

This test case—which is ongoing—directly parallels the original Olmstead case, in which the state held two women in psychiatric confinement for longer than medically necessary. Just as the Court in Olmstead implied that the ADA in many cases will require community services instead of hospitalization for people with psychiatric disabilities, so too do the people suing New York argue that Olmstead requires community-based supports instead of continued incarceration for people with disabilities who are otherwise eligible for reentry.

Second, people have brought Olmstead claims to challenge solitary confinement and lack of access to prison programming. In one recent case, a plaintiff with quadriplegia challenged the state’s alleged failure to provide him with physical access to the recreational, entertainment, and social opportunities available to others in his prison. Although the court dismissed the case as moot after the plaintiff transferred to a more accessible facility, Morgan seems to think that the challenge was otherwise viable under the integration mandate.

Morgan urges a third, more expansive application of the integration mandate for people with disabilities in state or federal prisons, which would require systemic improvements to prison programming. Instead of using solitary confinement in prisons to control symptoms of mental illness, or organizing work release programs only suitable for prisoners lacking physical disabilities, states should reallocate prison resources to mental health treatment programs and accessible work opportunities, Morgan argues.

Because the ADA requires individual modifications of policy for people with disabilities, Morgan also seems to suggest that true compliance with Olmstead in the prison setting would mean abolishing many of the “blanket policies” characteristic of prisons, such as policies that bar people with HIV from participating in food-related job assignments while in prison.

Morgan and other scholars ultimately advocate employing Olmstead to reduce substantially the prison population, in which people with disabilities are disproportionately represented. According to these scholars, Olmstead requires diversionary efforts to keep people with disabilities out of jails and prisons. Programs that prioritize de-escalation for people in mental health crises and broader access to mental health treatment will disrupt incarceration rates and recidivism.

The changes that Morgan advocates would benefit all people experiencing incarceration—not just those with disabilities. Moreover, these changes could constitute a legal pathway toward prison abolition by reducing the “mass imprisonment of people with disabilities.”

Morgan identifies at least two aspects of the existing regulatory framework that threaten the interpretations she urges courts to make of Olmstead and the integration mandate.

First, the integration mandate does not require states to make modifications that “would fundamentally alter the nature of the service, program, or activity.” Morgan anticipates that states could frame certain Olmstead claims for relief—such as claims requiring prisons to redesign disciplinary procedures—as fundamental alterations they are not required to make.

Second, the integration mandate also does not require inclusion when an “individual poses a direct threat to the health or safety of others.” Security concerns—legitimate or otherwise—could trump inclusion in prisons, Morgan acknowledges. Such concerns are endemic to prisons, and perhaps drive courts’ willingness to defer to states’ direct threat determinations.

Given the disproportionate representation of people with disabilities in the nation’s prison system, ongoing outbreaks of the coronavirus in jails and prisons, and the reportedly higher mortality rate of COVID-19 for some people with disabilities, Morgan’s plea to apply Olmstead more broadly may now be more important than ever.