ADA Applies to Decisions About Parole, Says 9th Circuit
Former addicts can
sue for discrimination
Jason Hoppin, The Recorder March 11, 2002
In what could lead to a swell of court challenges, the 9th U.S. Circuit Court of Appeals ruled Friday that the Americans with Disabilities Act applies to
California parole decisions.
The case was brought by two men housed in a state prison in Vacaville, Calif., who argue that the Board of Prison Terms hasn't given them a fair
shake because it does not want former drug addicts roaming the streets.
The merits of the case were not decided, but the decision establishes new legal footing for prisoners to argue that parole decisions are unfair.
"Because we conclude that there is no categorical rule excluding parole decisions from the scope of the ADA, we reverse the ruling of the district
court," reads the unsigned opinion. The panel consisted of Judge Raymond Fisher, Senior Judge Betty Fletcher and Senior 8th U.S. Circuit Court of
Appeals Judge Myron Bright, sitting by designation.
"Since a parole board may not deny African - Americans consideration for parole because of their race, and since Congress thinks that discriminating against
a disabled person is like discriminating against an African-American, the parole board may not deny a disabled person parole because of his
disability," the opinion reads.
A federal judge in Sacramento, Calif., will now have to decide whether the parole board discriminated against the plaintiffs because of their past drug
addiction, which is considered a disability under the ADA. Ongoing, illegal drug use is not a disability under the ADA.
"They'll finally have a chance to prove their case," said Sara Norman, a lawyer with the Prison Law Office in San Quentin who argued the appeal for
Charles W. Thompson and Stephen Bogovich. The two had pursued their case pro se for several years before finding counsel.
"My clients have been drug and alcohol free for many years now," she added. Norman said the ruling in Thompson v. Davis, 02 C.D.O.S. 2207, might also
apply to those suffering mental disabilities covered by the ADA. Her clients argued, and the court agreed, that consideration for parole meets the ADA's
definition of a "public program or activity."
In a ruling adopted by U.S. District Judge Garland Burrell Jr. of the Eastern District of California, a magistrate had decided that the ADA didn't apply
because the law doesn't cover "the substantive decision-making process in the criminal law context." "We find no basis for concluding that Title II of the
ADA contains such a broad exception," the 9th Circuit said.
The panel also suggested that the ADA covers a panoply of law enforcement decision making, including arrests. Denise Schmidt, spokeswoman for the
California Board of Prison Terms, denied the state discriminates against former drug users.
"The parole board doesn't discriminate against anybody based on disability," Schmidt said.
Source: www.law.com
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