Using the Americans with Disabilities Act to Reduce the Incarceration of People with Mental Illness

By: Ira A. Burnim

Interagency Collaboration Jail Populations Mental Health January 12, 2017

Across the country, communities are recognizing that people with mental illness are overrepresented in their local justice systems. Too often, police are called to intervene with individuals experiencing mental health crises, which leads to arrest and time in jail—an environment in which they tend to fare poorly. Fortunately, local justice systems are increasingly implementing new policies and practices to help connect these people to treatment outside of the justice system. But there are underutilized opportunities for localities to reduce incarceration rates by using legal protections found in the Americans with Disabilities Act and the Olmstead Supreme Court decision.

The Americans with Disabilities Act (ADA)—which has far-reaching requirements for public services provided by state, county, and local entities—can serve as a significant tool to achieve reductions in jail populations. The ADA is a landmark civil rights bill enacted in 1990, based on a recognition that historically, society has tended to isolate, segregate, and discriminate against individuals with disabilities. The law mandates an end to this discrimination, for the purpose of assuring people with disabilities equality of opportunity, full participation, independent living, and economic self-sufficiency.

Of the ADA’s several parts, one—Title II of the ADA— imposes legal obligations on the activities of states, counties, cities, and similar public entities. This includes the administration of law enforcement and corrections, as well as the provision of services to people with mental illness. In service of the national movement to deinstitutionalize people with disabilities, Title II prohibits unnecessary institutionalization, and includes the so-called “Integration Mandate,” which requires public entities to “administer services, programs, and activities” in non-institutional settings that “enable individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Jails and prisons can be, without question, a form of unnecessary institutionalization that affects many thousands of individuals with mental illness.

Among people with disabilities and their allies, the ADA was heralded as a game-changer. However, the requirements of the ADA have not been universally accepted by state and local governments, and the law has been repeatedly challenged in court. One such lawsuit, Olmstead v. LC, resulted in a landmark Supreme Court case that has become the platform for dramatic ADA reforms nationwide for people with mental illness. The plaintiffs were similar to many people served through public mental health systems and those who come to be incarcerated in jails. They had longstanding mental disabilities and, for many years, cycled in and out of psychiatric institutions operated by the state. The core of their complaint was that they were not being afforded appropriate public services within the community and, as a result, they were being subjected to unnecessary institutionalization in violation of the ADA.

In 1999, the Supreme Court handed down its decision in Olmstead, finding that as long as the services do not represent a fundamental alteration of public systems, people have a right to receive the community services they need to live outside of an institution. The Supreme Court was addressing unnecessary institutionalization in a hospital, but the Court’s analysis applies to unnecessarily institutionalization in jail as well.

Both the Bazelon Center and the U.S. Department of Justice have used the Olmstead decision to bring ground-breaking lawsuits that challenge the unwarranted institutionalization of people with mental illness. This has resulted in public systems being spurred to develop an array of new service alternatives within the community. For example, two important statewide lawsuits, U.S. v. Georgia and U.S. v. Delaware, stemmed from DOJ investigations that found the states were unnecessarily segregating people with mental illnesses in institutions. Both cases resulted in settlement agreements which lay out a set of community services that must be developed statewide. This included Assertive Community Treatment, supported employment,  supported housing (individuals living in their own apartment with the help of rental subsidies and supportive services), and crisis services consisting of a crisis hotline, mobile crisis services, crisis walk-in centers, crisis apartments, and crisis stabilization services providing intensive, short-term crisis interventions. This array of services is proven to be effective in keeping people out of institutions and allowing them to remain in their communities. Since the needs of people with mental illness who are served by public mental health systems and those who enter local criminal justice systems are more alike than different, providing individuals in jails or at risk of institutionalization in jail with these “Olmstead services” can produce similar success in reducing jail populations.

The ADA and the reforms it has spurred hold great promise for people with mental illness within criminal justice settings. People with serious mental illness who are justice-involved qualify for the protections of the ADA, just like the beneficiaries of the Olmstead settlements discussed above. And the systems that are responsible for their needless arrest and incarceration—the mental health system and the criminal justice system—are public systems covered by the ADA. It’s time for states to use the legal rights in the ADA and Olmstead as leverage to develop the public mental health services needed to reduce contact with the criminal justice system and the incarceration of people with mental illness in jail.