Deaf and hard of hearing people serving prison terms are frequently denied basic due process rights and access to rehabilitation programs and prison services because prison administrators fail to understand their communication needs. However, deaf and hard of hearing inmates have constitutional and statutory rights of access in correctional facilities. These rights are providing the impetus for many correctional systems to re-evaluate the services they have available to deaf and hard of hearing inmates.
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, guarantees persons with disabilities equal access to any entity that receives federal financial assistance, either directly or indirectly. Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12141 et seq., now extends these same rights to inmates in all state and local facilities. The standards of accessibility are similar under these two laws.
The U.S. Department of Justice Analysis of its Section 504 regulation explains the specific obligations that jails and prisons have as to deaf and hard of hearing inmates. The Analysis states:
[D]etention and correctional agencies must insure that their programs and activities are accessible to handicapped persons. For example, correctional agencies should provide for the availability of qualified interpreters (certified, where possible, by a recognized certification agency) to enable hearing-impaired inmates to participate on an equal basis with non-handicapped inmates in the rehabilitation programs offered by the correctional agencies (e.g., educational programs).
45 Fed. Reg. 37630 (June 3, 1980).
Under this regulation, a deaf or hard of hearing inmate has a right to be provided with qualified interpreter services to enable him or her to participate in or benefit from programs and services the prison offers other inmates, as well as at any disciplinary or other proceedings. See also Letter from Patrick, 7 NDLR ¶ 425 (April 11, 1995).
Title II of the ADA, the U.S. Department of Justice regulation to Title II, 28 C.F.R. Part 35, and the Analysis thereto, 56 Fed. Reg. 35694 (July 26, 1991), clarify the requirements of Section 504, and extend them to institutions that do not receive federal financial assistance. First, the Title II regulations define the term “qualified interpreter” to mean “an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 35.104.
The ADA Title II regulations also identify the auxiliary aids and services which a state or local correctional facility may have to provide: “[q]ualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDDs) [also called teletypewriters or TTYs], videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.” 28 C.F.R. § 35.104.
Policies and procedures must also be modified, in order to give deaf and hard of hearing inmates access to accessible telecommunications equipment that is equal to the opportunity given to other inmates to make telephone calls. For example, a facility must not only provide a TTY or other effective telecommunications device, it must also allow sufficient time to use the device. These conversations, if they are being typed, may take longer than spoken conversations. Therefore, if a facility has a rule that limits inmate telephone use to fifteen minutes, they may need to extend this time for a deaf or hard of hearing inmate using a TTY. The facility must also ensure that the deaf and hard of hearing inmates have the same hours of access to accessible telephone service as do other inmates. Some facilities limit TTY use to daytime hours because the office where a TTY is stored is only open during those hours. This violates the ADA if other inmates can make telephone calls during evening or weekend hours. No appointments or written requests to use the TTY should be required, if the same is not required for other inmates to use a telephone. Finally, some facilities prohibit inmates from using toll-free “800” numbers or “711” access numbers to reach a telecommunications relay service. These policies must be changed to enable deaf and hard of hearing inmates to reach the statewide TTY or other relay service, mandated by Title IV of the ADA. Relay services enable communication between a deaf or hard of hearing person and a person who uses a telephone. Deaf and hard of hearing inmates must have access to relay services.
In 2008, the U.S. Department of Justice proposed new rules for Title II of the Americans with Disabilities Act (ADA), which apply to state and local governments. The NAD recommended that the Department issue a new rule to address opportunities for people to make outgoing telephone calls:
The NAD recommends that the Department consider adding a provision in the Title II regulations . . . related to offering the opportunity to make outgoing telephone calls on more than an incidental convenience basis. Public entities, such as hospitals and other health care facilities, educational institutions, temporary lodging facilities, and detention facilities, routinely provide the opportunity for individuals to make telephone calls. Unfortunately, an equal opportunity to make outgoing calls is not always provided individuals who are deaf or hard of hearing. Inclusion of a new provision in this section . . . would make this obligation clearer to public entities. As such, the NAD recommends the following addition:
28 C.F.R. § 35.161(d): A public entity that offers an applicant, participant, or member of the public the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, text telephones (TTYs), and other voice, text, and video-based telecommunications products and systems, such as videophones and captioned telephones for the use of an individual who is deaf or hard of hearing, or has a speech impairment.
Complaints can be filed with the U.S. Department of Justice (Civil Rights Division, 950 Pennsylvania Avenue, NW, Disability Rights Section – NYAV, Washington, DC 20530) or in courts. However, the Prison Litigation Reform Act of 1995 places limitations on inmates seeking federal remedies for prison civil rights violations. 42 U.S.C. § 1997(e)(a). Most importantly, inmates may not pursue federal claims until they have exhausted all available administrative remedies. Therefore, before filing a lawsuit, prisoners should make sure they have already attempted to resolve their complaint through the appropriate prison complaint procedures.