Civil Rights Litigation Clearinghouse proposes model policies addressing incarcerated people with communication disabilities

Michigan Law

The Civil Rights Litigation Clearinghouse has published the first in a series of white papers focused on criminal justice policy reform.

The white paper series, Learning from Civil Rights Lawsuits, draws from the tens of thousands of litigation documents in the Clearinghouse collection to explore promising practices and develop model policies for criminal justice reform. The first white paper in the series is “Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People.”

The paper looks to settlement agreements, judicial opinions, expert and monitor reports, and existing prison and jail policies—supplemented by conversations with advocates and experts in the field—to propose best practices for jails and prisons to serve the needs of people with communication disabilities in their custody.

Tens of thousands of people incarcerated in jails and prisons throughout the United States are deaf, hard of hearing, blind, or have low vision. Federal disability antidiscrimination law requires jails and prisons to avoid discrimination and ensure effective communication and equal access to services, programs, and activities. Failure to meet these requirements is unlawful and may have dire consequences.

“Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for people with disabilities,” said Margo Schlanger, the Wade H. and Dores M. McCree Collegiate Professor of Law and the Clearinghouse’s founder and director.

“It’s discriminatory and harmful when deaf and/or blind people behind bars can’t understand staff and navigate their environment. So prisons and jails must provide the tools they need—sign language interpretation, screen reading technology, and other accommodations—to receive equal access to prison and jail programs and services,” Schlanger added.

The Clearinghouse collects cases addressing this issue in a special case collection. The white paper draws lessons from those cases and related materials, as well as interviews and workshops with advocates and experts in the field, to discern what jails and prisons must do to comply with antidiscrimination law in this context.

The paper offers a detailed set of policy recommendations, which the National Association of the Deaf and the National Federation of the Blind have endorsed. The model policies address everything from intake protocols and staff training to antidiscrimination principles to tracking and auditing metrics, and include policies addressing evaluation for and provision of myriad medical devices, auxiliary aids and services, and reasonable accommodations and modifications.

Key recommendations include:

• Advance and adequate preparation. Jails and prisons should adopt policies, form partnerships with community organizations and services providers, consult with experts, purchase and install necessary equipment and devices, create accessible versions of important documents and resources, modify emergency protocols, appoint experienced ADA coordinators, train staff, and modify facilities even before any person with communication disabilities enters their custody.

• Evaluation for and provision of requisite medical devices, auxiliary aids and services, and reasonable modifications and accommodations. Jails and prisons must offer comprehensive, collaborative, and ongoing processes for identifying needed medical devices (such as eyeglasses or hearing aids); auxiliary aids and services to facilitate effective communication (such as qualified interpreters, videophones, screen readers, or Brailled materials); and reasonable modifications and accommodations to policies, practices, and procedures. These all must be readily available and accessible, and processes must exist for changes, updates, replacement, and repair as needed.

• Permit individuation and account for wide variation. There is no one-size-fits-all solution for people with communication disabilities. Policies and procedures must acknowledge that people with communication disabilities may be differently and/or multiply disabled in ways that affect their abilities and needs. The requisite medical devices, auxiliary aids and services, and reasonable modifications and accommodations required for effective communication require a robust array of options and individualized solutions.

The model policies serve as a template for correctional administrators, legislators, and advocates who are working to change jail and prison policy. Among the resources that accompany the white paper is an editable template containing these policies, which is intended for jail and prison systems to copy, paste, and adapt into functional policies for their own systems and facilities.

“We hope that this white paper will be a resource that illuminates the problems and provides a guide for solving them,” said Tessa Bialek, the Clearinghouse’s managing attorney and a co-author of the white paper. “The proposed solutions are not abstract: the white paper offers specific policies, developed through collaborative processes with dozens of experts, including many who themselves have communication disabilities, drafted for jails and prisons to easily adapt and implement.”