|U.S. Department of Justice
Civil Rights Division
The legal requirements this guidance discusses are restatements of existing requirements from Title II of the Americans with Disabilities Act, 42 USC 12131-12134, and its implementing regulations at 28 CFR pt. 35. If you have questions about these requirements, please contact the Civil Rights Division's ADA Information Line.
Title II of the Americans with Disabilities Act (ADA) protects individuals with mental health disabilities and intellectual and developmental disabilities (I/DD) from discrimination within the criminal justice system. Pursuant to the ADA, state and local government criminal justice entities—including police, courts, prosecutors, public defense attorneys, jails, juvenile justice, and corrections agencies—must ensure that people with mental health disabilities or I/DD are treated equally in the criminal justice system and afford them equal opportunity to benefit from safe, inclusive communities. Nondiscrimination requirements, such as providing reasonable modifications to policies, practices, and procedures and taking appropriate steps to communicate effectively with people with disabilities, also support the goals of ensuring public safety, promoting public welfare, and avoiding unnecessary criminal justice involvement for people with disabilities.
The ADA also requires State and local governments to avoid discriminating against people with mental health disabilities or I/DD in administering services, and to serve people with these disabilities in the most integrated setting appropriate to their needs. Effective implementation of these requirements will help people with these disabilities receive the community-based services they need. Furthermore, increased collaboration and improved resource allocation between criminal justice agencies and disability service systems can also help reduce the social, vocational, economic, and educational disparities people with disabilities experience.
This document highlights opportunities to increase ADA compliance and positive community outcomes through improved policies, effective training, use of data, resource allocation, and collaboration between criminal justice entities and disability service systems. The Department of Justice hopes this technical assistance will promote the safety and welfare of both individuals with disabilities and criminal justice personnel.
Title II of the ADA provides that no qualified individual with a disability shall, because of that disability, be excluded from participation in, denied the benefits of, or subjected to discrimination in the services, programs, and activities of all state or local government entities, including law enforcement, corrections, and justice system entities. Such services, programs, and activities include:
Title II’s general prohibitions against discrimination are subject to limitations. When an individual poses a “direct threat” to the health or safety of others, i.e., a significant health or safety risk that cannot be mitigated or eliminated by a reasonable modification of policies, practices or procedures, Title II does not require a public entity to permit that individual to participate in, or benefit from, services, programs, or activities.
The Department highlights below some key Title II obligations for state and local government entities. Every agency and justice system is unique, and state and local leaders are the ones who determine the most effective implementation strategies for their agencies. Therefore, to support state and local law enforcement, corrections, and justice systems leaders in complying with these ADA requirements, each ADA obligation is followed by compliance examples. These examples reflect many of the experiences of state and local leaders around the country who have implemented these strategies to comply with the ADA.
Under Title II, state and local government entities must, among other obligations:
Public entities may not:
It is important that criminal justice entities anticipate and prepare for the disability-related needs of people with mental health disabilities or I/DD. Training criminal justice personnel, conducting reviews of policies and procedures, and collaborating with mental health and disability services providers are three ways to achieve that end.
Criminal justice personnel are likely to encounter people with mental health disabilities or I/DD who are part of the communities they serve and protect. Several factors may indicate that a person has a mental health disability or I/DD, including self-report, information provided to dispatch or to the officer or employee, the employee’s prior knowledge of the person, or the employee’s direct observation. Without proper training, criminal justice personnel may misinterpret the conduct of individuals with mental health disabilities or I/DD as intentional disrespect or disobedience, which may escalate encounters and lead to unnecessary criminal justice involvement. Appropriate training can prepare personnel to execute their ADA responsibilities in a manner that keeps staff, individuals with disabilities, and members of the community safe; promotes public welfare; builds trust with the community; respects the rights of individuals with disabilities; ensures effective use of criminal justice resources; and contributes to reliable investigative and judicial results.
Criminal justice entities have provided trainings to their personnel on these topics:
Special Considerations for Law Enforcement Agencies: Law enforcement agencies have provided training to dispatchers on how to recognize and handle calls from or about people with mental health disabilities or I/DD, including on the following topics:
Criminal justice entities have reviewed their policies, practices, procedures, and standing orders to ensure that they do not discriminate against people with mental health disabilities or I/DD. For example, entities have collected, aggregated, and analyzed data regarding individuals served by the entity and outcomes to determine whether people with disabilities are subjected to bias or other discrimination. Where potential discrimination has been found, entities have taken necessary corrective measures, such as revising policies and procedures; refining quality assurance processes; and implementing training.
States, counties, and cities, which often administer both criminal justice and disability service systems, have obligations under the ADA to ensure people with mental health disabilities or I/DD receive services in the most integrated setting appropriate to their needs. Services such as scattered-site supported housing, Assertive Community Treatment (ACT), crisis services, intensive case management, respite, personal care services, behavior support, nursing care, peer support, and supported employment services can support a jurisdiction’s efforts to divert people with these disabilities from the criminal justice system and serve them in their communities.
State and local governments must prevent unnecessary institutionalization of people with disabilities. Governments have complied with this obligation by using community-based treatment services to keep people with disabilities out of the criminal justice system. These governments have recognized that the responsibility for effectively serving people with mental health disabilities or I/DD cannot fall to law enforcement alone. Therefore, they ensure that their disability service systems offer sufficient community-based services and support criminal justice entities to coordinate with, and divert to, community-based services.
Criminal justice entities have collaborated with their jurisdiction’s mental health and disability services programs and with service providers on the following:
Department of Justice settlement agreements provide examples of policies and procedures that assist in achieving ADA compliance in key areas.
Crisis Response: Through settlement agreements with the Department, police departments in Portland and Seattle trained additional officers to serve on Crisis Intervention Teams (CIT). Also, all officers in these jurisdictions now receive basic training on effectively interacting with people with mental health disabilities and on crisis de-escalation. The New Orleans Police Department and the Portland Police Bureau developed CIT policies that encourage de-escalation, diversion, and coordination with the local mental health agency. Portland also developed a comprehensive Behavioral Health Unit that includes multiple co-responder teams that pair a specially trained police officer with a mental health professional to divert frequent users of police services based on their mental health needs.
Use of Force: Agencies have revised use-of-force policies and training after the Department found a pattern of unreasonable use of force, including on people with mental health disabilities. For example, Seattle revised its use-of-force training curriculum and policy to emphasize conducting threat assessments, determining whether behaviors are disability-related, using CIT whenever feasible, and using de-escalation techniques such as time, distance, and shielding.
Diversion and Coordination with Mental Health Providers: A settlement agreement in Portland led to the creation of a crisis center available to first responders seeking to divert individuals with disabilities from the criminal justice system into the community mental health system. Portland and New Orleans have implemented policies to transport these individuals to treatment by ambulance or civilian services in lieu of police vehicles. Similarly, police departments across Delaware can now refer people in mental health crisis to community-based Crisis Intervention Services. Delaware created these alternatives to meet their responsibility under the ADA under a settlement agreement with the Department.
In a settlement agreement with Hinds County, Mississippi regarding its jail, the Department and County agreed to “work toward the goal of population reduction in a manner that preserves public safety, prioritizes diversion for unnecessary criminal justice involvement, and reduces recidivism,” particularly for individuals with mental health disabilities. Hinds County agreed to establish a criminal justice coordinating committee to enhance coordination between criminal justice and mental health agencies to prevent unnecessary arrest and detention and connect individuals with disabilities to mental health services. Agreements in both Delaware and New Hampshire target community-based mental health services at individuals with mental illness who have histories of involvement in the criminal justice system to prevent recidivism.
Release Planning: The settlement agreement with Hinds County, Mississippi requires the jail to notify community mental health providers when releasing a prisoner with serious mental illness so the prisoner can transition safely to the community. To aid in transition, the jail will provide prisoners with details related to a follow up appointment at the relevant mental health center and give them sufficient medications to cover the period until the scheduled appointment.
Restrictive Housing (Solitary Confinement): In a settlement, Ohio agreed to reduce its reliance on seclusion for juveniles on the mental health caseload at its secure juvenile facilities by limiting the bases for placing juveniles in seclusion and reducing the time period any juvenile spends in seclusion. Ohio eventually eliminated the use of disciplinary seclusion at its juvenile facilities. Similarly, in response to Department of Justice findings, Pennsylvania revised its policies to divert prisoners with serious mental health or developmental disabilities from solitary confinement and into treatment units.
Disciplinary Proceedings: The Pennsylvania Department of Corrections modified its policies and procedures to require that prisoners with serious mental health or developmental disabilities be evaluated by mental health staff to consider mitigated sanctions if they are subject to serious misconduct sanctions and to resolve allegations of non-violent offenses informally. In addition, the policies no longer permit discipline for self-injurious behavior.
Corrections and Juvenile Detention Facilities