Advocating For Disability Rights In Probation And Parole

By Allison Frankel | April 19, 2024, 4:20 PM EDT · Listen to article

Allison Frankel

Across the country, there is increasing attention to the criminalization of people with disabilities, from police responses to mental health crises[1] to inadequate healthcare in jails and prisons.[2]

Indeed, in March, the Allegheny County jail in Pennsylvania agreed to a proposed settlement that would resolve a lawsuit charging the jail with failing to provide adequate treatment and medication for incarcerated people with mental health disabilities, and using extended solitary confinement or excessive force as punishment.

But largely overlooked are the hundreds of thousands of people with disabilities on probation and parole, who are forced to navigate complex rules without needed accommodations — setting them up for failure.

Defense attorneys can play a crucial role in ensuring that clients with disabilities have access to the accommodations they need — and to which they are legally entitled — to complete supervision and remain in their community.[3]

Nearly 4 million people in the U.S. are on supervision.[4] High numbers of them have disabilities.

In 2019, one in five people under supervision had a mental health disability — twice the rate of the general population. [5] And more than three in 10 had a substance use disorder, four times the rate of the general population.[6] Rates of intellectual, developmental and physical disabilities are also higher among those on supervision.[7]

Supervision is burdensome for everyone, demanding strict adherence to dozens of onerous requirements under penalty of incarceration for any slip-up. Rather than an alternative to incarceration, it is often a trip wire into jail and prison.[8]

For people with disabilities, navigating these requirements can be nearly impossible. People with mobility disabilities are regularly required to attend meetings in spaces that are physically inaccessible.

Many individuals with cognitive functioning disabilities cannot understand their supervision requirements or keep track of ever-shifting appointments.

And those with mental health disabilities such as post-traumatic stress disorder may have trouble forming trusting relationships with authorities and therefore engaging in required treatment and programming.

Given other forms of structural discrimination, these barriers are particularly high for people with disabilities who are Black and brown, LGBTQ+, and experiencing homelessness or poverty.

The Americans with Disabilities Act and the Rehabilitation Act prohibit discrimination on the basis of disability.[9]

Among other requirements, these laws mandate that courts, parole boards and supervision departments make "reasonable accommodations" to supervision terms that afford people with disabilities an equal opportunity to succeed.[10]

Accommodations are inherently individualized and may include plain-language explanations of supervision rules, qualified interpreters, appointment reminders and flexible meeting scheduling. Entities have an affirmative duty to assess people's accommodation needs.[11]

Yet in supervision systems across the U.S., federal disability laws are routinely ignored. All too often, courts and parole boards impose a slate of supervision rules absent individual consideration of people's disability-related needs.

Supervision officers then enforce those rules — and arrest people for violations — without assessing people's accommodation needs or providing required accommodations.[12]

Meanwhile, defense attorneys generally do not advocate for their clients to receive accommodations. There are myriad reasons for this advocacy gap, including:

Unawareness of clients' disability-related barriers or rights to reasonable accommodations;
Inadequate resources, especially in underfunded public defender offices;[13] and
Strategic concerns that seeking accommodations might insinuate that their client is ungrateful for the supervision sentence — still considered lenient despite its harsh reality[14] — or will not comply with their release conditions.

These obstacles are surmountable. Each case, of course, raises its own strategic and capacity considerations.

Yet as a general matter, defense attorneys can take the following steps to facilitate access to reasonable accommodations — steps that could mean the difference between freedom and a jail cell.

Attorneys should talk to their clients about possible accommodation needs. Lawyers should ask, in a simple and nonjudgmental manner, if clients have disabilities — e.g., "Do you have any conditions like PTSD, depression or bipolar disorder?"

Additionally, lawyers should ask if there is anything they can do to help their client communicate clearly, access meetings and otherwise succeed on supervision; and brainstorm possible accommodations with them. Attorneys should recognize that clients may not always know if they have a disability or what forms of reasonable accommodations might work for them.

Then, lawyers should advocate with relevant supervision authorities to obtain necessary accommodations. Attorneys should raise accommodation claims as early as feasible — e.g., at sentencing to supervision conditions — via legal filings or oral advocacy.[15]

Early advocacy both gives clients the best chance of succeeding on supervision and ensures the government is on notice of their accommodation needs — which creates a valuable record if the client later violates a condition because they didn't receive needed accommodations.

Capacity permitting, attorneys should encourage clients to reach out over the course of their supervision if they are having trouble meeting their supervision requirements. When clients encounter barriers, attorneys should contact officials administering supervision to request needed accommodations.

And attorneys should raise disability-related barriers during revocation proceedings, both as defenses to the allegations and as mitigation.

If the decision-maker releases the individual back to supervision, lawyers should seek modification of the problematic conditions that led to the violation — to avoid setting them up to fail again.

More broadly, defense attorneys and other advocates should push for systemic reforms. For example, they should encourage supervision agencies to enact systems to affirmatively assess people's accommodation needs and provide required accommodations.

Advocates should also pressure agencies to adopt universal design accommodations that would make the system more manageable for everyone on supervision, whether or not they have disabilities. This includes explaining supervision requirements in plain language, flexibly scheduling meetings based on the individual's needs and helping people get to required locations and enroll in appropriate programs.

These reforms are imperative to ensure that everyone has access to legally mandated accommodations, regardless of whether they or their attorney can effectively advocate for them.

The U.S. continues to over-police and over-punish people with disabilities. Ultimately, reforms must shift resources from the criminal legal system into community-based supports and services.

Expanding access to reasonable accommodations that give people with disabilities a meaningful chance to remain in their community is a critical step in service of that goal.