George Bush's America Meets Dante's Inferno: The Americans with Disabilities Act in Prison

Abstract:     
Part I of the article assesses the applicability of certain provisions of the Americans with Disabilities Act to the particular problems posed by elderly, mentally disabled, HIV-infected, and hearing-impaired inmates, as well as by pretrial detainees and death-row inmates. Part II provides the historical and statutory background preceding the enactment of the ADA. Part III sets forth the substance of the ADA's requirements and briefly discusses their applicability to the prison context. Part IV considers the legal implications of Title II of the ADA with respect to establishing violations and pursuing remedies. Part V hypothesizes how the courts will respond to the ADA in light of their tendency to accord prisons deference in institutional matters. Part VI reviews the significant ADA-based cases to date, concluding that whatever application of the ADA in the prison context does occur will be highly restrained and cautious. Part VII surveys alternative methods for solving the problems of disabled prisoners, including early release programs, increased transfer to medical facilities, and centralized facilities for disabled inmates. Despite these alternatives, this Part recommends placing added emphasis on medical care for the disabled within the existing prison system. Finally, the article concludes that, like constitutional rights, statutory rights such as those purportedly accorded by the ADA dissipate once incarceration takes hold. Therefore, while the ADA may be a potential remedy for disabled prisoners at present, the prospects for the future are uncertain.

JEL Classifications: K14, K39

Accepted Paper Series