Out with the new, in with the old: the importance of section 504 of the Rehabilitation Act to prisoners with disabilities.

• Author: Ginsberg, Betsy

Introduction I. Demographics of the Prison Population II. Advantages of Statutory Disability-Rights Claims Over Constitutional Claims A. Advantages of Statutory Claims: Issues of Substantive Law 1. Eighth Amendment Claims 2. Respondeat Superior and Entity Liability B. Advantages of Statutory Claims: Legal Access 1. Qualified Immunity 2. Attorney's Fees 3. Expert Fees 4. Punitive Damages III. The ADA, Section 504 and Sovereign Immunity IV. Title II and Section 504: A Comparison A. Federal Financial Assistance B. Causation C. Expert Fees D. Regulations V. Out with the New? Conclusion INTRODUCTION

While being booked at the Orient Road jail in Tampa, Florida on a traffic warrant, Brian Sterner was subjected to a "routine" pat-down search. Mr. Sterner, who is quadriplegic, was ordered to stand for the search. When, for obvious reasons, he remained in his wheelchair, a Sheriff's deputy forcefully dumped him from his chair, while other jail staff looked on. The deputy and another jail official then proceeded to search Mr. Sterner while he lay prone on the floor and when they were through, they dragged him back into his chair. Shortly afterward, jail personnel placed him on the floor of a van without his wheelchair or any other device to keep him secure and transported him approximately four miles to another jail facility. (1) What is most unusual about this incident is not how Mr. Sterner was treated, but that it was actually captured on surveillance video, uncovered by the media, and viewed hundreds of thousands of times on YouTube. (2)

Orient Road Jail and Abu Ghraib notwithstanding, it is highly unusual for the American public to glimpse what goes on behind the walls of our prisons and jails. If they could, they would see all too many incidents like the one involving Mr. Sterner, in which prisoners and detainees with disabilities experience abuse, discrimination, and inequitable access to services. There is a long history of discrimination against prisoners with disabilities, some of which is made public through civil rights litigation brought by prisoners. In one such case, prison officials were found to have denied access to a paralyzed prisoner who was forced to drag his body across the floor to use the commode, which was not adequate to support him. (3) In another case a quadriplegic prisoner was denied access to prison facilities, therapeutic, and religious programs that were available to non-disabled prisoners. (4) In another example, deaf prisoners were denied sign language interpreters for medical appointments and disciplinary hearings. (5)

Congress considered this history of discrimination against prisoners with disabilities in enacting Title II of the Americans with Disabilities Act (6) ("ADA" or "Title II") in 1990, and the Supreme Court unanimously decided more than a decade ago that the law applies to state prisoners. (7) Nonetheless, attempts of state prisoners with disabilities to seek damages (8) for violations of the ADA have often been thwarted, as courts have found states to be immune from suit under the Eleventh Amendment. (9)

While the primary focus of disability rights cases brought by prisoners has been under the ADA, its less comprehensive predecessor statute, Section 504 of the Rehabilitation Act (10) is also applicable in most of these cases and poses fewer sovereign immunity problems. Both statutes continue to be important tools for prisoners and their advocates for several reasons. First, the changing demographics of the prison population reveal that the number of prisoners with disabilities has increased and is likely to continue to increase. Furthermore, there are several reasons why proceeding under Title II or Section 504 offers some advantages over traditional constitutional claims. The federal disability statutes provide, in some circumstances, increased substantive rights for prisoners than does the Constitution. The statutes also promote greater legal access than constitutional claims because they provide for greater access to attorneys' and experts' fees and are not subject to the defense of qualified immunity. Despite the potential advantages that these statutory claims carry, ADA litigants are faced with a significant roadblock in the sovereign immunity that is granted to the states. Given the sovereign immunity problem associated with ADA damages claims, I explore the important differences between the ADA and Section 504 and argue that there are situations in which prisoners and their advocates should take steps to avoid the sovereign immunity problem altogether by suing under Section 504 only.

In Part I, I explore the demographics of the prison population, noting the dramatic increase in prisoners with disabilities and discussing its various causes. Lengthy sentences and the resulting aging of the prison population, the over incarceration of people with mental illness and the link between poverty and disability all contribute to the explosion in the population of disabled prisoners. The importance of the ADA and Section 504 as tools available to prisoners with disabilities is heightened by this demographic shift. In Part II, I continue to address the importance of these statutory claims by highlighting some of their advantages over traditional constitutional claims. I categorize these advantages as either being substantive or as pertaining to legal access. With respect to substance, claims under the disability statutes are arguably easier to prove than claims under the Eighth Amendment's prohibition on cruel and unusual punishment because courts have held Eighth Amendment claimants to an extremely stringent standard and because the statutes impose an affirmative obligation upon public entities to provide accommodations for people with disabilities. Furthermore, because there is no respondeat superior liability for Section 1983 claims, these can be more difficult to prove than claims under the disability statutes, which allow for both respondeat superior and entity liability. The statutes also provide better legal access to plaintiffs because ADA and Section 504 defendants are not entitled to claim qualified immunity as are defendants in Section 1983 litigation. Furthermore, the Prison Litigation Reform Act's severe restrictions on attorneys' fees do not apply to the disability statutes. Finally, while fees for expert witnesses are not available to Section 1983 plaintiffs, they are available to ADA claimants. Part II also points out the few, but significant, advantages of constitutional claims over statutory claims for prisoners with disabilities.

Part III discusses how courts have addressed the question of states' sovereign immunity from claims under the ADA and Section 504. It concludes that while sovereign immunity remains a barrier for prisoner plaintiffs bringing ADA claims, sovereign immunity is not a barrier to prisoners' Section 504 claims. Although it appeared that in 2006 the Supreme Court would resolve whether Congress validly abrogated states' sovereign immunity from ADA claims concerning prison conditions, the Court left much of this question open; it has since been addressed in divergent ways by the lower courts. Because Section 504 was enacted pursuant to the Spending Clause, the abrogation analysis is not dispositive for plaintiffs seeking damages from the state. The question of whether states accepting federal funds has constituted a valid waiver of sovereign immunity has been answered uniformly and positively. Part IV addresses the differences between Section 504 and the ADA. While courts regularly find that the statutes are virtually identical, there are some distinctions between them that litigants may need to recognize when determining whether Section 504's sovereign immunity advantage is worth abandoning claims under the ADA. Finally, Part V suggests an approach for litigants that involves abandoning the traditional kitchen-sink approach to civil rights litigation in favor of a more nuanced and strategic approach that takes into account the advantages and disadvantages of statutory versus constitutional claims, the problems posed by sovereign immunity and the differences between the two statutes.

1. DEMOGRAPHICS OF THE PRISON POPULATION

   The ADA and Section 504 are becoming increasingly important tools for prisoners seeking redress through the legal system. This is not only because these statutes offer certain advantages over constitutional claims, as shown below. The demographics of the prison population are such that the population of incarcerated people with disabilities is disproportionately large and growing. There are several reasons for this. First, because our criminal justice system has been imposing longer sentences on people who have been convicted of crimes, the prison population is aging before release. With increased age often comes disability. Next, the deinstitutionalization of people with mental illness in the last half of twentieth century and the lack of adequate mental health treatment have led to the overincarceration of people with mental disabilities. Finally, because people with disabilities are more likely than the non-disabled to live in poverty and because there are close links between poverty and crime, people with disabilities are overrepresented in prison.

   In recent years, states have enacted legislation and promulgated policies that have greatly affected the make-up of the prison population. Not only have approximately half of the states enacted "three strikes" legislation, (11) but many states have also enacted both "truth in sentencing" laws that ensure that offenders serve far longer sentences than previously, and parole policies that delay or deny release to prisoners serving indeterminate sentences. (12) Furthermore, many states have adopted laws requiring certain offenders to serve sentences of life without the possibility of parole, ensuring that these prisoners age and eventually die inside prison...