Should there be Separate Justice Systems for Special Needs Populations? Results from the Penn State Public Opinion Poll

• DOI: 10.1177/0887403403253723
• Date: 01 September 2003
• Author: Pamela Preston
• Published date: 01 September 2003
• Subject Matter: Journal Article

10.1177/0887403403253723ARTICLECRIMINAL JUSTICE POLICY REVIEW / September 2003Preston / SPECIAL NEEDS POPULATIONS

Should There Be Separate

Justice Systems for

Special Needs Populations?

Results From the Penn State

Public Opinion Poll

Pamela Preston

Penn State Capital College

Changing population demographics and the aging of the baby boom generation will

affect the structureof all the institutions of our society. An aging and increasingly dis-

abled correctional population will force changesin the way the criminal justice sys-

temoperates.TheapplicationoftheAmericanswithDisabilitiesActtoprisonsiscon-

troversial and may place extreme burdens on an already overburdened criminal

justice system. An alternative is the establishment of a separate system for special

needsoffenders(the physicallyand mentally disabled and the elderly), much as a sep-

aratesystemwas established for juveniles more than a century ago. This article exam-

ines public support for the idea of a separate justice system for each of these special

needs populations, using data from the 2001 PennState Poll. Results suggest support

for a separate system for the mentally disabled, less support for the physically dis-

abled, and little support for a system for the elderly.

Keywords:Americans with Disabilities Act; public opinion; criminal justice system

THE APPLICATION OF TITLE II OF THE

ADA TO CRIMINAL JUSTICE AGENCIES

Title II of the Americans with Disabilities Act (ADA)prohibits discrimi-

nation by state and local government agencies. Specifically, it protects dis-

abledindividualsfrom discrimination (based on the disability) in programs,

services, and/or activities of state and local governments, including those

that do not receive federal financial assistance. However, whether or not

state prisons, local jails, and law enforcement agencies are required to

322

Criminal Justice Policy Review, Volume 14, Number 3, September 2003 322-338

DOI: 10.1177/0887403403253723

© 2003 Sage Publications

comply with Title II of the ADA has been debated since its enactment in

July 1990.

Although early arguments claimed that the ADA did not apply to prison

inmates as they were not “in prison voluntarily” (“ADA Clearly Applies to

Prisons,” 1998; U.S. Department of Justice, 2000), the U.S. Supreme Court

ruled that state prisons were subject to ADA requirements (Pennsylvania

Department of Corrections v. Yeskey, 1998). State prisons, according to

Justice Scalia, “fall squarely within the statutory definition of ‘public

entity’ ” (Shepherd, 1998). Although this ruling continues to be challenged

by some members of the U.S. Senate (“Bill Seeks to Exclude,” 1999; “Pro-

gramming and screening change,” 1998), most agencies are making efforts

to comply. For example, the cities of Oakland, California, and Houston,

Texas,have initiated programs designed to ensure that persons who are deaf

or hard of hearing can communicate effectivelywith law enforcement (U.S.

Department of Justice, 2000).

SinceYeskey,thecourts have addressed several cases involving the ADA

and the criminal justice system. Issues include both facility and program

characteristics that may make them unavailable to or inaccessible by dis-

abled inmates.

One concern facing law enforcement and corrections personnel is that

existing buildings and equipment do not comply with ADA standards. Sus-

pects and prisoners have brought suit overa number of issues, including the

lack of availability of TDD (Telecommunications Device for the Deaf)

phones and closed-captioned television (“Deaf Inmate Claims ADA Viola-

tions,” 1999), sign language interpreters (“Sign Language Interpreter

Order,”1999), and wheelchair access in the inmates’ cells (“Prison Did Not

Violate,” 2001).

Although issues involving ADA and facilities are important, perhaps

more visible and more challenging to deal with are program and education

issues. Yeskey’s suit involved discrimination revolving around boot camp

participation that would have reduced his sentence. Other suits related to

program and education issues have arisen in light of the Supreme Court’s

findings on Yeskey.A Texas man sued when he was discharged from a Sub-

stance Abuse Felony Punishment Facility Program after being diagnosed

HIV positive. His discharge resulted in a sentence of 4 years incarceration.

The original program was a 9-month program (“Suit: Removal from DWI

program,”2000). ALouisiana man sued, claiming his ADA rights were vio-

lated when he was assigned to an improper work detail (outdoor physical

Preston / SPECIAL NEEDS POPULATIONS 323