Disability Rights on Probation and Parole

Authors

Alexis Karteron, New York University School of LawFollow

Abstract

This Article addresses disability discrimination in community supervision programs, a large—but frequently overlooked—component of the criminal legal system and important contributor to America’s mass incarceration crisis. The long-standing concerns of legal scholars and advocates about disability discrimination in prisons and policing, particularly against people with mental health disabilities, apply with equal measure to probation and parole. This Article examines the experiences of people with intellectual/developmental, cognitive, and mental health disabilities to understand how disability discrimination manifests in probation and parole programs and identifies numerous policies and practices that likely run afoul of two major federal disability rights laws: the Americans with Disabilities Act and the Rehabilitation Act. In explaining why such disability discrimination goes seemingly unchecked, this Article identifies major jurisdictional barriers to enforcement in the federal courts: the Preiser-Heck bar on certain civil rights litigation, abstention doctrines that insulate state criminal court decisions from review, and Eleventh Amendment limits on damages actions against state entities. Given those barriers, this Article suggests that supervision programs ensure robust compliance with disability discrimination laws by utilizing a universal design approach, providing appropriate accommodations to supervisees, and eliminating discriminatory standards. It further argues that defense lawyers and other criminal justice actors should receive training about disability discrimination laws, so they are better able to recognize and remediate disability discrimination. Finally, it suggests the expansion of diversion programs for people with disabilities, particularly those who may struggle to comply with traditional probation programs.

Recommended Citation

Alexis Karteron, Disability Rights on Probation and Parole, 124 Mich. L. Rev. 519 (2025).
Available at: https://repository.law.umich.edu/mlr/vol124/iss3/4