"It Don't Matter Anyhow": How the Americans with Disabilities Act Has Become (Mostly) Irrelevant to the Criminal Trial Process

Abstract

The application of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.)   to all aspects of the criminal justice system is a remarkably under-considered one, but it is one that should be of far greater interest to all those whose work involves this system in any way, as well as to scholars whose work touches on either the ADA, criminal justice or both. In this paper, we focus on the multiple connections between the two, with specific considerations of issues that affect arrestees with mental illness or disability in the pretrial and trial processes. and how Title II of the ADA can be enforced in civil litigation in the context of criminal proceedings. We also will examine the therapeutic jurisprudence implications of judicial decisions in this area, and note the artificial intelligence implications of the questions we consider.

Our studies reveal an inescapable truth: the ADA has had virtually no impact on the criminal justice system at all. Only a handful of cases have ever granted relief to civil plaintiffs in such matters, a finding that is certainly ironic in light of the fact that the Supreme Court, unanimously -- and per Justice Scalia --ruled years ago in a decision that has never been questioned or limited (see Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998))  that the ADA applies to state prisons and claims of prisoners, a universe that has always had fewer rights than those not yet convicted of crime.

Here, we focus on how counsel must take the lead in urging courts to enforce the ADA in cases involving the population in question, and conclude that  the application of the ADA to all aspects of the criminal trial process (defining this phrase as broadly as possible, including cases in the pretrial stage, at trial, at the plea stage, at sentencing, and more) fits perfectly into a therapeutic jurisprudence framework, focusing especially on questions related to adequacy of counsel, and the need for dignity and compassion in all aspects of this process.

Keywords: Americans with Disabilities Act, criminal trial process, therapeutic jurisprudence, abstention, mental disability