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Our federal, state, and local governments lock up hundreds of thousands of people at a time—millions over the course of a year—to ensure their appearance at a pending criminal or immigration proceeding. This type of pretrial incarceration—a term we use to cover both pretrial criminal detention and immigration detention prior to finalization of a removal order—can be very harmful. It disrupts the work and family lives of those detained, harms their health, interferes with their defense, and imposes pressure on them to forego their trial rights and accede to the government’s charges in an effort to abbreviate time behind bars. For people with disabilities, however, pretrial incarceration is often even worse; it can utterly destabilize their physical and mental health and devastate their ability to participate in their proceedings. Set aside whether that would be a justifiable imposition if pretrial incarceration were truly necessary for the criminal or immigration systems to process their cases or if it truly served public safety. We demonstrate in this article that existing antidiscrimination law demands alternatives to pretrial incarceration, when it is demonstrably unnecessary and undermines the equal access of people with disabilities to the criminal or immigration processes that purport to justify it. The argument is somewhat novel but founded firmly on existing law: the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, their regulations, and well-developed interpretive case law.


Copyright © 2022 Margo Schlanger, Elizabeth Jordan & Roxana Moussavian. This article may be copied and distributed for free or at cost, with the authors’ names and original publication citation remaining. We grant permission for its language, arguments, and citations to be used with or without attribution in litigation documents.