Deaf and Incarcerated
Access, Accommodations, and Care
M. Elizabeth Bowman
and Jaemi Hagen
Illustration by Nancy Rourke
Authors’ note: The term Deaf, when capitalized, is used to describe individuals who use American Sign Language to communicate and identify as culturally Deaf. The lowercase term, deaf, refers to the medical or audiological designation of hearing loss. While the terms can mean different things in terms of communication and cultural identities, this article will use Deaf throughout for ease in reading. Most of the concepts presented apply to both groups.
Reprinted with permission from M. Elizabeth Bowman, Jaemi Hagen, Dean Johnson, and Nancy Rourke from CorrectCare (2022, Spring). ©2022 National Commission on Correctional Health Care. ncchc.org
Being incarcerated is a difficult, frightening experience for anyone. For individuals who are Deaf, communication barriers can make the experience additionally isolating and distressing.
In the correctional setting, as in most environments, everything from fire alarms to subtle social norms operates on the expectation of spoken language. That expectation negatively impacts Deaf individuals who, when incarcerated, are often cut off from human ties; left out of education, treatment groups, and other programs; and potentially misdiagnosed or inadequately treated by health care professionals.
Correctional leadership, custody, and health care staff need to know the Deaf population’s rights, how to support those rights, and special considerations to keep in mind when working with people who are Deaf.
The number of Deaf adults in the correctional system is difficult to specify, as some estimates include individuals who are mildly to moderately hard-of-hearing while others do not. HEARD, an organization that provides support and advocacy to incarcerated Deaf individuals, estimates the number to be in the tens of thousands.
Rights and the ADA
People who are incarcerated have a constitutional right to health care—and those who are Deaf are no exception. The first of NCCHC’s Standards for Health Services in jails, prisons, and juvenile facilities, Standard A-01 Access to Care, reiterates that right: “Inmates have access to care for their serious medical, dental, and mental health needs.”
The Rehabilitation Act of 1973 and the Americans with Disabilities Act, which became law in 1990, protect the basic civil rights for disabled people, including those who are Deaf—and those who are incarcerated. ADA law requires that “reasonable accommodations” and “reasonable modifications” be made to ensure equal access to the same services, resources, and information that are provided to hearing individuals.
While in practice the word “reasonable” can be and has been widely interpreted, all incarcerated individuals, regardless of hearing status, are legally entitled to access to correctional programming including health, mental health, and certain other services, depending upon a variety of factors including funding sources.
With some exceptions, American Sign Language is required for effective communication with this population. That means that without qualified sign language interpreters, things like health care encounters, educational and vocational programs, library services, 12-step meetings, anger management classes, religious services, and prerelease programs are all rendered useless.
Depending on the person’s needs, interpretation services may include a team of two or more interpreters: a Registry of Interpreters for the Deaf Certified Interpreter teamed with a Certified Deaf Interpreter. The Registry of Interpreters for the Deaf is the only nationally recognized certification for interpreters. RID provides an independent verification of an interpreter’s knowledge and abilities and protects against unqualified people who claim to be qualified interpreters.
Ideally, the appropriate interpreter or team should be scheduled for all health and mental health appointments. Interpreters also should be present for all meetings, education and occupational programs, and substance abuse assessments and treatment. Arranging for interpretation services is the responsibility of the facility staff, not the individual.
Resources should be adapted so that people who are Deaf can use them, such as visual daily schedules; accessible notifications regarding meals, showers, yard time, and appointments; and closed captioning on televisions.
Health Care, from Intake… Information about health services is fundamental to the provision of care in correctional settings. NCCHC Standard E-01 Information on Health Services states that “Upon arrival at the facility, inmates are informed of the availability of health care services and how to
access them” and specifies that arrangements should be made for an interpreter or assistive device “whenever effective communication is compromised due to speech, hearing, or language deficits.”
Proper intake and needs assessments on the front end can help reduce some of the risks for an individual who is Deaf. NCCHC Standard E-02 Receiving Screening requires that screening be “performed on all inmates upon arrival at the intake facility to ensure that emergent and urgent health needs are met.” Specifically, the person completing the screening needs to inquire about “current and past illnesses, health conditions, or special health requirements (e.g., hearing impairment …).”
The standard also states that receiving screening “should be conducted using a form and language fully understood by the individual, who may not speak English or may have a physical (e.g., speech, hearing, sight) or mental disability.”
For people who are Deaf, proper interpretation, provided by a certified interpreter, is critical for a thorough intake screening to identify health and/or mental health needs. In some cases, the facility will be informed in advance that a Deaf person is arriving so that an interpreter can be secured. If the hearing status of a new arrival is unknown and the individual displays signs of hearing loss—if they are unresponsive to sounds or spoken language or use signs or gestures to communicate—formal audiology testing should be scheduled immediately to determine the degree of hearing loss and the appropriate accommodations.
Suggested Accommodations
Regular medical assessments related to comorbid physical or mental health conditions
American Sign Language Interpreters
Auditory equipment (e.g., hearing aids and cochlear implants)
Fire alarms and other alert systems with flashing lights and visual messaging
Accessible housing reserved for Deaf individuals
Captioned televisions and visual schedules posted in common areas for entertainment and notification
Videophone—TTY/TTD devices are no longer usable communication technology
A comprehensive communication assessment may also be needed to determine the individual’s linguistic ability. Studies estimate that as many as 50% of Deaf people who are incarcerated have linguistic incompetence, a condition in which the individual is unable to comprehend any language, signed or spoken. The condition is often accompanied by cognitive and social deficits resulting from early childhood isolation or abuse, which, sadly, often goes hand in hand with language deprivation in Deaf children.
Obviously, the inability to understand any communication makes it almost impossible to engage in assessments, health care, programming, and socialization while incarcerated.
If linguistic incompetence is identified, interpreters who are trained to work with that population, including a Certified Deaf Interpreter, should be retained.
…To Discharge Planning
The ability to communicate is as essential at discharge as it is at intake and throughout incarceration; the lack of proper accommodations can affect prospects for future success.
Discharge planning generally includes a review of behavior and attendance at therapy, substance abuse support groups, educational classes, and other programs. If individuals have not been provided interpretation services and access to such programs, their release may be delayed.
Furthermore, when justice-involved Deaf people return to the community, they face unique barriers to obtaining postrelease support, housing, and employment. Mental health and other community services have frequently been shown to be inaccessible, and few halfway houses are equipped to provide appropriate support. That lack of supportive services can lead to homelessness, untreated mental health and substance abuse issues, and re-arrest.
Parole also requires that returning citizens engage in specific activities to remain in the community. Even with interpretation, people who are Deaf are not always clear on parole expectations, which can lead to parole violations and recidivism.
Other Considerations
Many individuals who are Deaf experience prolonged communication deprivation and social isolation while incarcerated. Such isolation not only creates challenges in terms of navigating the correctional environment, it has also been shown to increase risk of suicide, mental health issues, and substance use.
In addition to sign language interpreters, the facility should have videophones available to enable communication with loved ones or attorneys and to reduce the risk of isolation. Whenever possible, Deaf individuals should be housed in units together to allow for social connection and support.
Facilities should be equipped with a means to alert people who are Deaf in the event of fire, lockdown, or other emergency to prevent confusion, panic, injury, and even death. All alert systems should provide visual messaging such as digital displays for bed checks and fire alarms with flashing lights.
In addition, leadership should consider including a unit on engaging with Deaf individuals in custody staff training. Staff members who lack training in Deaf culture and language are at risk of misinterpreting gestures, touch, and facial expressions as aggressive, possibly leading to punitive consequences. Understanding their needs can help to ensure they are provided access to specialized equipment and services as well as help to keep them safe.
To that end, ongoing communication between custody and health staff about special needs, accommodations, and other considerations is essential and will help ensure the patient’s health and safety.
Despite legal protections, Deaf incarcerated individuals face unique challenges in accessing health care, mental health services, educational programming, and other services. Health care professionals and custody staff who interact with the Deaf population can help by being aware of their needs and struggles as well as the rights afforded to them. Increased awareness will help improve access to correctional health care, services, and resources that are every disabled individual’s right.
For More Information
Hearing Loss Association of America: HearingLoss.org
National Association for the Deaf: NAD.org
HEARD: BeHeardDC.org
“Deaf People in the Criminal Justice System: Selected Topics on Advocacy, Incarceration, and Social Justice,” Debra Guthmann, Gabriel I. Lomas, Damara Goff Paris, and Gabriel A. “Tony” Martin, Editors: gupress.gallaudet.edu
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M. Elizabeth Bowman, PhD, LCSW-C, is an assistant professor in the social work department at Gallaudet University and works with reentry services in Washington, DC.
Jaemi Hagen, MSW, is a social worker and social justice advocate in Washington, DC.
About the artist: Nancy Rourke is an internationally known Deaf artist and activist. In addition to her work as a professional artist, she conducts artist-in-residencies at Deaf schools and promotes De’VIA (Deaf View/ Image Art), art that examines and expresses the Deaf experience from a cultural, linguistic, and intersectional point of view. She has taught De’VIA art in Poland, Russia, France, Canada, and the U.S. Three of her paintings hang in the Silesian Museum in Katowice, Poland. Her work was featured in the September 2018 issue of Harper’s magazine. Ms. Rourke graduated from Rochester Institute of Technology with a Masters of Fine Arts and lives in Loveland, Colorado. Learn more at nancyrourke.com.
Legal Brief
How Do Disability Laws Apply to Deaf People Who Are Incarcerated? It’s Complicated Deana Johnson
Both the Americans with Disabilities Act and the Rehabilitation Act protect individuals with disabilities, including those who are incarcerated. Both laws use the same legal standards and offer the same range of remedies.
The major protections are the right to participate in or gain the benefits of services, programs, or activities of a public entity (called a participation claim); and freedom from discrimination based on the disability (called a discrimination claim).
Interestingly, neither one allows the plaintiff to recover money damages unless there is discriminatory intent. For that reason, many plaintiffs add constitutional claims of deliberate indifference as a way to prove discriminatory intent.
To prove a participation claim, the plaintiff must show:
• A disability as defined by these laws
• Otherwise qualified to receive the service or benefit
• Denied the benefit solely by reason of the disability
• The program/benefit receives federal money.
To prove a discrimination claim, the plaintiff must show that they are:
• A qualified individual with a disability as defined by these laws
• Subject to discrimination by the agency due to the disability
In deliberate indifference cases, the plaintiff must prove:
• The agency knew of the need for accommodation either because the plaintiff notified it or the need was obvious.
• The agency’s failure to act was deliberate.
Applications in the Correctional Setting
Hearing impairments qualify as disabilities if they substantially limit hearing, speaking, and communicating. The incarcerating agency must take steps to make communications as effective as they are with others. However, the type of auxiliary aid or service needed to ensure effective communication varies depending on the person’s specific medical and lingual history and the complexity and nature of the communication.
The ADA requires that deference be given to the requests of the disabled individual for specific aids. In addition, the incarcerating agency has a duty to gather sufficient information from the person and, if needed, qualified experts, to determine what accommodations are necessary. Failure of the agency to perform any inquiry can result in an award of money damages.
Aids for Medical Appointments
Do Deaf individuals have a right to American Sign Language interpretative services for medical visits during incarceration?
The courts’ answer often turns on the specifics of the health care exchange itself: the more complex the subject matter, the longer the visit, and the more chaotic the environment, the higher likelihood that the court will side with the patient’s claim that an ASL interpreter was required. Especially with today’s technology, which allows for web-enabled interpretative services with little advance notice, plaintiffs have stronger arguments to support these types of claims.
Telephone Aids
When it comes to specific technology to aid in telephone communication, case law on rights is far from settled. For instance, a Michigan federal court decision found an ADA violation for offering only teletypewriters, while a Louisiana federal court held the exact opposite and deferred to the correctional agency’s choice of TTY over video technology.
Other cases have required ASL interpreters during routine phone calls only if the person’s hearing loss and language skills render interpretation services the only option for effective communication.
Takeaways
As is so often the case when hundreds of different judges throughout the country hear similar legal challenges, the results are not nearly as uniform as the legislation tries to make them. However, as technological advancements make connectivity cheaper and easier and as internet access, even in limited capacities, increases in jails and prisons, it is logical to expect that claims seeking interpretative services for incarcerated individuals who are Deaf will continue to be pursued, both on individual and class action bases.