Ending the Discriminatory Pretrial Incarceration of People with Disabilities: Liability under the Americans with Disabilities Act and the Rehabilitation Act

52 Pages Posted: 22 Sep 2022 Last revised: 12 Dec 2022

See all articles by Margo Schlanger

Margo Schlanger

University of Michigan Law School

Elizabeth Jordan

University of Denver Sturm College of Law

Roxana Moussavian

Pangea Legal Services

Date Written: August 31, 2022


Our federal, state, and local governments lock up hundreds of thousands of people at a time—millions over the course of a year—to ensure their appearance at a pending criminal or immigration proceeding. This type of pretrial incarceration—a term we use to cover both pretrial criminal detention and immigration detention prior to finalization of a removal order—can be very harmful. It disrupts the work and family lives of those detained, harms their health, interferes with their defense, and imposes pressure on them to forego their trial rights and accede to the government’s charges in an effort to abbreviate time behind bars. For people with disabilities, however, pretrial incarceration is often even worse; it can utterly destabilize their physical and mental health and devastate their ability to participate in their proceedings. Set aside whether that would be a justifiable imposition if pretrial incarceration were truly necessary for the criminal or immigration systems to process their cases or if it truly served public safety. We demonstrate in this article that existing antidiscrimination law demands alternatives to pretrial incarceration, when it is demonstrably unnecessary and undermines the equal access of people with disabilities to the criminal or immigration processes that purport to justify it. The argument is somewhat novel but founded firmly on existing law: the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, their regulations, and well-developed interpretive case law.

In Part I, we explain how people in pretrial incarceration are disadvantaged in their access to justice because of their disabilities. In Part II, we establish that the criminal and immigration legal systems are covered by the Rehabilitation Act and the ADA, which mandate that people with disabilities receive “meaningful access” to government operations, including when providing such access requires reasonable modifications of ordinarily applicable policies and procedures. We set out the statutory, regulatory, and case law parameters for determining whether a proposed modification to defendant practices constitutes a “reasonable modification” required by statute, or a “fundamental alteration” not so required. And we analyze the issue of causation, explaining what it means for deprivations to be “by reason of . . . disability.” Part III applies the law, demonstrating that providing alternatives to pretrial incarceration would constitute a reasonable modification to, not a fundamental alteration of, the underlying criminal/immigration processing systems. It also analyzes the differences between our proposals and two quite different disability-related interventions—competency restoration and the appointment of counsel. Part IV examines several specific counterarguments that government defendants might offer. For individuals facing state criminal charges, we suggest that Younger abstention poses no obstacle to ADA/Rehabilitation Act enforcement under our theory. For individuals in immigration detention, we rebut, seriatim, several counterarguments: we show that our proffered interpretation of the Rehabilitation Act is consistent with so-called “mandatory detention” Immigration and Nationality Act (INA) provisions, and we address several INA jurisdiction-stripping provisions.

We write this article with the certainty that there are many people who have been and will continue to be unlawfully deported or imprisoned, absent the intervention of disability law. Our argument offers a path for people with disabilities and legal practitioners to seek release from incarceration in order to obtain equality of opportunity in their judicial proceedings.

Keywords: immigration, pretrial detention, jail, disability, civil rights

JEL Classification: K14, K37

Suggested Citation

Schlanger, Margo and Jordan, Elizabeth and Moussavian, Roxana, Ending the Discriminatory Pretrial Incarceration of People with Disabilities: Liability under the Americans with Disabilities Act and the Rehabilitation Act (August 31, 2022). Harvard Law & Policy Review, Vol. 17, No. 1, 2022, U of Michigan Public Law Research Paper No. 22-046, Available at SSRN: https://ssrn.com/abstract=4205817 or http://dx.doi.org/10.2139/ssrn.4205817

Margo Schlanger (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Elizabeth Jordan

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Roxana Moussavian

Pangea Legal Services ( email )

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