This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings
WEST RESENDES: All right. This is West Resendes speaking. All right. Excellent.
Their periods of supervision can last anywhere from few years to decades to even life. During that entire time, people have to comply with an average of 10-20 rules per day, sometimes even more. On the slide, I have included a copy of supervision conditions from a man near err nest that I met in Wisconsin. He was on probation for a minor drug offense. I had to comply for 39 rules of supervision. The picture shows that the language is very difficult to read. The text is really small. It's very close together. The words can be really tough to understand. And even if you do understand them, the rules are really complicated to follow.
So the picture highlights a few examples that I'm just going to read out loud to give you a taste of what supervision requires. Quotes. You shall not enter places where drugs are sold or used. You shall not loiter in any known drug area. You shall not have in your possession at any time more than 100 dollars in cash without the agent's approval. You shall seek and maintain full time employment, verified by a pay roll text stub. My favorite, you shall maintain absolute so brighter, no alcohol use and/or possession. You may not enter any business or establishment whose main source of income is the sale and/or distribution of alcohol. End quote. Which is a question I'm sure we ask before going to any restaurants.
The rules also often conflict. People have to hold down a job but they also have to report to their supervision officer, might also have to go to programs, plus they have to pay a host of fines and fees. So it's all really incredibly complicated for anybody to do. And the stakes couldn't be higher. Violating any of these rules can trigger sanctions including incarceration potentially for years. This includes what we call technical violations, something like missing curfew that wouldn't constitute a crime if you weren't on supervision. This is a huge feeder of mass incarceration across the country. In 2027, nearly half of all prison admissions in the U.S. were the result of supervision violations. A quarter just for those technical rule violations. With that, I will turn it over to West and Brian.
BRIAN DIMMICK: Thanks. I'm Brian Dimmick. I'm a senior staff attorney at the ACLU. I have been working on other things, challenging probation and parole systems. Just to set the table here, I am going to go through some of the legal theories that have been used or can be used to challenge conditions of probation and parole, what we will call supervision, and sort of how this might work. I'm going to keep this pretty high level because I think most of you probably have a basic familiarity. But I want to lay these out and we will begin as we discuss a couple of our more specific cases.
So to start with, who is the defendant if you are trying to challenge either probation -- supervision conditions or the way supervision is conducted? It is a little bit state by state because each state maintains their own systems, sometimes it even varies within localities within the state. But it there are two basic entities usually. One is the court system. In many cases, the courts are the ones who actually set the conditions. But then the other entity is the agency that monitoring or enforces the conditions. They have the supervision officers that people have met with. They conduct the inspections and those sorts of things to make sure all those complicated rules are being met.
So either one could be a defendant. We are talking primarily today about the enforcement agencies or the supervision agencies. They are definitely involved in day to day supervision. You can also bring in the courts to challenge a condition of probation. It's a little more complicated because you can get into the question or are you trying to modify the sentence? You can challenge a condition of probation or pa parole of violating detective appeal or sentencing or on direct appeal. It's a little less settled whether you can bring a standalone ADA lawsuit that challenges a condition of probation, parole directly as opposed to trying to get an accommodation or change the way it's administered.
So that's an extra wrinkle if you are challenging the condition itself and trying to go through the court system. We are really mostly talking about suing the agency that services the probation and parole. So regardless of who the defendant is, both courts and services agencies are generally going to be public entities under title II of the ADA. They are also going to, in most cases, receive federal funding. They would be subject to 504. And services is a program or activity of government entity. It's the kind of thing that the governments all over the country do, so there is really no serious -- that it is a program or activity.
So I'm going to layout a few legal theories here or legal claims, if you want to consider them separate claims. But I will run through them relatively quickly. First disparate treatment. The idea that conditions themselves are targeting, distinctions on the basis of disability, or that the services and the enforcement is such that it is singling out people with disabilities for harsher treatment. Second is denial of equal opportunity to benefit from services. And the question they raise there, what is the benefit of services? And, first of all, some programs and services may have a specific programs that you can benefit from. For example, drug treatment, which you may or may not consider a benefit; or access to housing assistance or employment assistance, or various things that within services you might consider a separate program that you could be denied equal access to.
But overall, the benefit of supervision is that you complete it. It is an alternative to incarceration. If you successfully complete it, you either avoid time entirely or, again, you are able to complete your sentence and return to the community. So supervision itself, that is the benefit. So anything that makes it harder for you to complete supervision, to void revocation to your parole probation, and to mix your sentence, that can also be denial of why you are benefit.
Related to that is the theory of methods of administration. The ADA prohibits using methods of administration administering a program that have the effect of frustrating the objectives of that program. So making it harder for people with disabilities to actually complete their supervision. Next theory is failure to make reasonable modifications or reasonable accommodations to. Either the conditions or parole or probation or how the actual process of supervision goes, the way that officers meet with people under supervision. So that can be changes to the conditions themselves, it can be changes to how meetings are conducted. We are going to get a little bit more of how that works later.
Finally is failure to provide effective communication. And that is failure of the system to use the appropriate auxiliary aids and services to communication with people under supervision with disabilities who have communication needs. Again, we will be talking more about that in a little bit.
But with that, I will turn it over to West to talk more about the burdens of supervision.
WEST RESENDES: Thank you very much, Brian. So now I'm going to talk a bit about the barriers to supervision for people with disabilities. And we'll start with the acknowledgement that there is a wild overrepresentation of people with disabilities on supervision. So in 2019, we had one in five people under supervision that had a mental health disability, which is twice the rate of the general population. And these figures are even starker for women. Also in 2019, there were 3 in 10 people in supervision that had a known substance use disorder, which is four times the rate of the general population. In rates of cognitive disabilities or physical health disabilities, amongst those higher under supervision than we see under our general population.
People with disabilities face barriers to successfully completing supervision because of structural and societal barriers. And also due to the ways that their disabilities can make satisfying supervision conditions more difficult.
Some of these barriers to understanding conditions can manifest in a variety of different ways. So people with cognitive disabilities may have trouble understanding of multiple complex conditions that they have to meet. And here on this side, you see a photo of a number of different traffic signs that are all incredibly confusing and overwhelming by a sheer number and images. Very difficult for drivers to figure out. These are a lot like supervision conditions where they can just be overwhelming where they are given all at once. As Allie showed on her screenshot of long list of supervision rye conditions people have to adhere to.
People with hearing or vision conditions, they may not have their conditions communicated to them effectively. We will talk more about that later. People with difficulties with memory may have trouble remembering and following their conditions.
On issues of barriers to effective communication, we see that people who are deaf and hard of hearing need other communication methods to convey information and to conduct regular supervision meanings, they need this done in other ways.
On this sly, we have a picture of a person writing or attempting to write. This is one of the frequently used methods of communication that often is not effective for deaf and hard of hearing people. Also, people with cognitive disabilities or ADHD may have difficulty with regular communication styles without accommodation.
There are also barriers to relationships. People with anxiety or PTSD may experience very high stress during routine interactions with their supervision officers. And people may have difficulty trusting and engaging effectively.
People with disabilities may have difficulty getting physically to the meetings because of inaccessible transportation or inaccessible locations. In this photo, we see a courthouse with a number of stairs leading to the main vestibule area. There is a small little placard sign indicates the wheelchair access is around to the side making it rather inaccessible to people who use mobility devices like that. It would make it difficult for such a client to arrive on time, to remember to plan for meetings, as often happens for people with disabilities because of the effects of anxiety or depression.
Barriers to obtaining and maintaining employment is another area, because disabilities and associated discrimination against those disabilities make jobs harder to obtain and keep. And here on this slide, we see a cartoon graphic image of a giant hand coming out of the door titled, a job. And that hand is giving a stop or go away handshape to the person seeking the job. And finally, we have barriers to preventing the -- or not engaging in the use of drugs and alcohol. Disabilities can make abstaining from drugs and alcohol more treatment and require treatment programs may be inaccessible or less effective for people with certain disabilities. Mandatory treatment is sometimes required but it's often ineffective or often are harmful. And many mandated programs do not permit medication assisted treatment, MAT, which itself violates the ADA if the ADA has an opioid use disorder.
So, now, we are going to turn to talk specifically about our case in Georgia, which is Cobb versus the Georgia Department of community supervision. So for those of you who have joined the previous panel on prisons, you have already learned about our prison case involving deaf and hard of hearing people in Georgia. The problem we were seeing there is that this population was more likely to stay in prison longer because they weren't provided effective communication. And similarly, we were seeing patterns of deaf and hard of hearing people under supervision not being provided effective communication as required by the ADA. And this effectively made them more likely to beery incarcerated for violations of supervision conditions and less likely to succeed on supervision.
For several class members who rely on sign language, their supervision officers did not provide any interprets at all for meetings whether that be intake appointments where they discuss the rules of supervision they must follow or regular check in meetings. And when those interpreters were provided, they were often unqualified or they were video interpreters difficulty communicating due to poor Internet connections in rural areas or rainy weather conditions.
Also provided video interpreting on cell phone screens that were far too small to be seen effectively. In addition to providing unqualified interpreters, Georgia did not provide any Deaf interpreters to Deaf supervisees. It's safe to say that the majority of deaf and hard of hearing people who are in the criminal legal system today experience language deprivation as they never had the ability to acquire either ASL or English fluency.
Deaf interpreters are an auxiliary. Some of the many symptoms of language deprivation include functional delays in language and comprehension which can successfully impact the success of interpreting their actions. Apologies for those that did attend the prison panel, this may sound familiar. Language deprivation can also manifest in a lack of understanding about how things generally work in the world such as how to or needing to follow rules, which is an essential component of complying with services. It's also called an impoverished fund of knowledge. And hearing sign language interpreters can struggle to effectively accommodate people with language deprivation. They don't have the experience of navigating the world as a Deaf person, and sometimes, it is simply about knowing what you don't know.
Deaf interpreters or specialists who provide interpreting in translation services in ASL and other visual and tactile communication forms used by Deaf and hard of hearing people. They are -- I would like to shift now actually back to the effective methods of communication. Georgia officers also relied on young family members, which is not effective, especially children, to interpret communications with Deaf supervises. On this slide, we have a picture of two Black individuals, one of whom is an adult, one of whom is a child. Both male. The young child is signing the word for the word help. The adult male seems to be signing something, it may be the number 9 or letter F. It's hard to tell, they look the same in ASL without context. But in this case, we see that officers frequently do rely on family members, even children, to try to interpret their supervision interactions. They also relied on written notes, which is also ineffective for Deaf and hard of hearing adults with language deprivation, and hand gestures which are not at all equivalent to the verbal communication that hearing supervisees have with their officers.
Officers throughout the state were not explaining the conditions of supervision to their Deaf and hard of hearing supervisees in an accessible way. They were just handing them complex written documents and expecting them to comply with all of the rules. As a result of this, Deaf and hard of hearing people were at an increased risk of supervision violations for rules they did not understand. The state also wasn't making sure that people got the same help in finding employment or housing as supervisees without disabilities receive and required treatment programs often didn't provide interpreters. I'm going to turn it over to our client, Brandon Cobb, on video who will share some of his experiences.
(Showing captioned film clip).
All right. Now, we will turn it over to Brian for the next section.
BRIAN DIMMICK: Thank you. So, now, I'm going to talk about the litigation. So after investigating and hearing the stories of people like Mr. Cobb who you just heard, we filed suit in July of 2019. In the case that West mentioned called the Georgia Department of Community Supervision. It was the ACLU, the ACLU with Georgia, National Association of the Deaf, Arnold Porter, and Disability Rights Education & Defense Fund later joined the counsel team.
We officially sued on behalf of six main plaintiffs who were all under supervision in Georgia. We had some ups and downs during the lawsuit. We currently have two, that is sort of an aside. A thing to think about in litigating these cases, you will gain and lose plaintiffs because people complete their supervision successfully, or, unfortunately, sometimes people experience reeducation for various reasons or get rearrested. So we did have some changes in our plaintiff. But at the end of the day, we still have two main plaintiffs, one of whom is Mr. Cobb, who you heard from.
So we filed in July of 2019. And the image on the slide here shows the first page of the complaint in the litigation. And so the argument that is were made, echoing the arguments I talked about earlier, we argued that, the Department of Community Supervision, who we abbreviate as DCS, they were denying equal access for the opportunity to benefit for supervision by making it harder for people to understand and comply with their conditions. And they were also failing to provide effective communication for all the reasons that West and Mr. Cobb just described.
After we filed, DCS made some largely cosmetic efforts to try to improve the situation. They hired an ADA coordinator, which they never had. They made some changes to the process by which you request an interpreter. But overall, they continued business as usual. So we went and engaged in extensive discovery. The pandemic happened, which created its own challenges for supervision as with everything else. We made some attempts at settlement. But ultimately, we filed a motion for classification and defendants filed a motion for summary judgment. Both were decided in our favor in October of 2022. The court granted classification, class of all Deaf and hard of hearing individuals under supervision. And the court denied defendant's motion for summary judgment.
The court focused a lot of attention in summary motion on, one, the argument that our claims were moot because of the various cosmetic steps they had taken. Oh, we adopted a new policy, therefore, evidence is nixed and the evidence is moot. They also argued that because no one had actually had their supervision revoked that no one had been harmed. But we successfully challenged or had the court reject both of those arguments. The case was not moot until the situation was actually fixed not just because you have a policy on paper. And, you know, the harm is more than just the actual revocation. It's the denial of effective communication and denial of physical opportunity. So now I want to talk about the settlement agreement that we were able to obtain. So after a lot of negotiation with defendants, we reached a settlement agreement that has been signed. We are excited about the changes it's going to make to the DCS policies.
A little note on the status. We have had the court grant preliminary approval to the settlement and notice was provided to the class in February. We expect the final fairness hearing in early May, after which we hope that the settlement will be approved and it will be implemented. It's not fully final yet, but it's very close, we hope. So I will talk a little bit about notice of the settlement. This was a complex notice to provide because we wanted to make sure that it was provided in ASL through a Deaf interpreter, and also, that there was a plain language translation of the settlement. So that is all available on the assessment website. The image on the slide here will show part of the notice that was sent to the class members, and also stills were some of the videos that were used to translate that notice.
So next slide. So like the last slide here, we have images of the -- okay. Images on this slide are the settlement agreement in the case and a still from some of the videos. So the center piece of the settlement agreement that we reached is a process for individually assessing the communication needs of all class members, anyone on supervision who is Deaf or hard of hearing. Currently, DCS has identified to us about 139 class members. We think there may be more, but that's a good start at least. There is a fair in the meantime of people out there. And there is a range of communication needs from full ASL users to people who might communicate through other methods.
All current class members are going to be offered the chance to have a communication assessment after the assessment is approved. And at the initial intake when new supervisees meet their supervision officers, there is going to be a process where DCS will determine whether the individual appears to know sign language. And if so, DCS will immediately provide an ASL or an interpreter over VRI before the interaction continues and will pause intake until a communication plan can be created for the individual.
If the person became Deaf or hard of hearing as a minor or child, whether or not they know ASL, DCS will ask whether the individual consents to an outside communication assessment. And we are going to be monitoring very closely, making sure they are getting consent and that they are fairly representing what is going to happen so people are encouraged to consent. The communication assessment will be provided by an outside state agency that works with the Deaf and hard of hearing population and has expertise in doing these assessments. It's not just the supervision officer or someone at the state or supervision agency saying that they know what the person needs, that it is an actual expert that knows how this needs to be done.
The assessment will provide information about what the person's communication needs are and what the communication methods are appropriate and effective for that person in different situations. It's not going to be a one-size-fits-all, I need ASL all the time. It's going to focus on the different situations that someone goes through while on probation and what will and will not work for people in those situations. So it might work for a routine appointment or for a quick interaction to set up a meeting time, might not work if they are explaining the conditions or if you have just been arrested. There are a range of situations. The results that have assessment are going to be used to develop a communication plan. And that's what DCS will implement in their future interactions.
So that's the several piece. There are some really other important things that DCS is going to do. They are going to change the ways that they provide aids and services to Deaf and hard of hearing class members and a couple of important ways. So, first of all, they will provide Deaf interpreters when that is called for in the communication assessment and communication plan. That's really important because they were not doing that before. They were sort of refusing to even entertain that idea.
And I should say, again, these slides contain images of videos from the translations of the settlement agreement from the policy that is were used or being provided to the class right now. DCS will make sure that technical requirements for using VRI are met. As you remember, Mr. Cobb described how difficult it can be to use VRI or when officers use VRI. But DCS is going to make sure that the right sized screen is used, that they are able to get good Internet connections to provide good services, and they are going to have a plan in place for what to do if for some reason the VRI isn't effective or adequate in a given situation. VRI will only be used on a cell phone in an emergency situation. If the chrome book or laptop that DCS offices usually use isn't working.
So the next thing is the written documents. It DCS will provide the contents of written documents in a communication method that's appropriate to the individual. Again, that will be in the communication plan. So instead of just shoving a bunch of text, they will actually communication or interpret those information in the documents especially if the person is going to sign those documents. DCS is going to provide in-person interpreters for critical interactions. These are things that it's described in the settlement, but things like when someone has, for example, been arrested and the officer needs to communicate with them about what the charges are and what's happening. These are situations with high stakes consequences, and that they will provide in-person interpreters in those circumstances if at all possible.
And, you know, it also specifies what steps to be taken if there is no way to get an interpreter in time to the person. But the general expectation is that in-person interpreters will be provided. Okay. So those are the main points of the settlement. I will briefly talk about monitoring. There is going to be a four year monitoring period. And plaintiff's counsel will get a lot of data. We are going to get case notes that the officers enter about their interactions. We are going to get copies of assessment forms, body cam videos.
We are really hoping to evaluate whether DCS is really implementing this settlement. And there is a dispute resolution process also that's going to be part of that. But four year period. Hopefully, that will begin soon. We are really excited about the settlement. And, hopefully, they will really change how communication happens for people who are Deaf and hard of hearing on supervision in Georgia.
And with that, I will turn it over to Allie to talk about a new frontier in our work.
ALLIE FRANKEL: Thank you so much, next slide. We are going to now be building on Cobb to -- to accommodate people not just who are Deaf or hard of hearing but have all types of disabilities particularly mental health conditions just given they are so vastly overrepresented among those under correctional control. Actually just yesterday, we released a new guide targeting at defense attorneys that assess accommodations' needs and advocating with courts and supervision officers to get needed reasonable accommodations for clients. So we are encouraging direct representation to raise these claims. And then also plotting systematic reform litigation.
So in our last segment today, I'm just going to first go over some barriers people with mental health disabilities face and then talk about some legal claims we are working on. So just very brief overview from the outside -- given structural discrimination, folks with disabilities are less likely to have stable housing, employment, access to healthcare. Which makes navigating supervision all the harder. There is also facial discrimination. So relying on harmful and, obviously, false stereotypes.
Supervision officers regularly label people with mental health disabilities, especially people who have psychotic conditions, as high risk and then put them on more intensive caseloads that require more conditions and closer surveillance. And there is less tolerance for violations. So studies have shown that supervision officers are quicker to accuse people with mental health disabilities of violations and to put them in jail.
Sometimes it's under the deeply misguided idea that this person needs treatment and throwing them in jail is the way to get them into treatment, even though we know that very few people in jail actually get treatment and any benefit of treatment they get is far outweighed by the treatment of incarceration a brief outline that agencies are increasingly creating these mental health supervision tracks. Some people do get connected to services that they need and supervision officers who better understand their mental health needs, but far more often, it just is a way to impose more conditions on people, especially mandated treatment without needed supports. And then violating any rule of the mandated treatment plan, failing to show up for treatment, failing to be sufficiently engaged in treatment even if that's related to a manifestation of your disability is another grounds for violation.
So people with disabilities have more opportunities to fail on supervision. And then as we talked about earlier, people regularly need reasonable accommodations. But what we are seeing even though there is little data, is that very few supervision agencies actually have systems in place to assess who has disabilities, who needs accommodations, and to provide those reasonable accommodations. Many don't even have ADA coordinators or provide notice. Like, the very basics are not happening in many probation and parole agencies.
According to a recent study, only about a quarter of probation and parole agencies actually track whether people have a mental health disability. People are forced toed in supervision without the accommodations they might need.
Next slide. So we are working on litigation to fix this. I was hoping we would have a case filed before this presentation. But stay tuned in the next few months about that. In this picture, we have a set of doors leading to a bear office. Folks have a lot of familiarity with diagnosis disability law. I won't go into the basics but highlight some specific ways we are pushing the law here.
One is we are arguing that supervision departments have to affirmatively assess people's accommodation needs rather than wait for that person to request accommodations. This is important for a lot of reasons including the power dynamic. Makes it really hard for someone to go up to their supervising officer, who has the power to ail them, to ask for supports. Many don't know about their rights to accommodations. People don't know they have a disability or they could have an accommodation or what would work for them. People don't usually have their defense lawyer anymore, they don't have an advocate to tell them this information about the claims.
There is a wonderful case called Pierce by then judge now Justice Ketanji Brown Jackson that said that DC jail officials discriminated on the basis of disability when they failed to assess the accommodation needs of a person they brought into jail who they knew was Deaf. In that case, the court emphasized it was obvious to everyone involved that this person had a disability. So the government was plainly on notice. But what we are trying to push the law a bit is to say similarly, given that we know high numbers of people on supervision have disabilities especially mental health conditions. Agencies are likewise on notice that many people will need accommodations. This should be obvious by now, so that duty should still apply.
Next slide. On this slide, we've got an illustration from a prior report on probation that shows a man sitting at a bus stop with a duffel bag looking overwhelmed. He is surrounded by pictures of money, calendar, supervision conditions. Just showing the overwhelming nature of supervision. And the key point I want to emphasize here is that there is good case law showing that the inability to meaningfully participate in your supervision is itself discrimination even if you are not accused of a violation or thrown into jail. This means people don't need to wait until they are accused of violating their supervision to be experiencing discrimination and to bring litigation.
Next slide, please.
Just very briefly want to raise the issue of defenses to these types of claims. On this slide, we've got another illustration from our prior report of a criminal defendant with his arms behind his back looking up at a judge kind of awaiting his fate. So if you all will be familiar with the government will likely respond to these claims saying these accommodations would just fundamentally alter our supervision system, and people are posing direct threats.
The key thing we want to emphasize is they can't just blanketly say, we can't make any accommodations to standard rules. They have to offer specific advised evidence that the accommodation would be an undue burden or the person poses particular threats.
Next slide. Trying to brief through so we can have time for questions. But let me know if I'm going too fast. The last thing I got is two key recommendations that we are pushing. One to individual defense lawyers, not sure if we have any here, but it's to be asking our clients in a none judgmental manner if they have disabilities, if they need accommodations to navigate supervision. And if so, as early as possible, to be proactively seeking those accommodations with courts, with supervision officers. This can occur at the moment the client is sentenced to probation, over the course of their supervision, and during proceedings to revoke that supervision.
And on a system's level, supervision agencies should be developing systems to affirmatively assess people's accommodation needs and to provide those needed accommodations. They should be providing clear notice of people's rights under the ADA and the Rehab Act, and they should be adopting universal die sign accommodations that would make supervision more manageable for everybody whether or not they have a disability. This would include things like explaining supervision rules using plain language, exercising flexibility when scheduling meetings, providing appointment reminders, helping with transportation, helping people enroll in programs. And with that, we've got a little bit of time for questions. So I will open up the floor.
ATTENDEE: Hi, my name -- (Indiscernible).
ALLIE FRANKEL: Can you use the mic? Sorry.
ATTENDEE: Hi, is it on? Can you all hear me? Okay. Great, thank you. Hi, I'm with the office for case to justice at DOJ. The topic of data has come up in several sessions. I was really struck by the data point about a quarter of parole and probation programs and collecting data and mental health facilities. I caveat this question by saying I'm not a litigator. But I wonder whether it is possible in the course of negotiating a settlement or a final orders in these types of cases, whether that could be part of those types of settlement agreements, ordering these agencies to collect that data. That also goes to your point about universal design or people-centered design. When you can start to collect data about the types of disabilities or accommodation requests that are coming in, if you see a pattern, you can have those safeguards and those accommodations kind of available and even advocate for the budgeting necessary to have the resources to provide them more readily. So just curious about your thoughts on that.
ALLIE FRANKEL: I will say I think that's a great idea. We definitely talked about requiring systems but I hadn't actually thought about requiring more robust data collection on that point. I think it would be really useful.
I don't know if either of you have thoughts on that point. But thank you.
WEST RESENDES: Not from me, Brian?
BRIAN DIMMICK: I do think that's a great point about more data. We really don't know what we don't know. You know, yeah.
ATTENDEE: Hi, Jeff Miller, middle-aged white man, gray hair. Quick question for you. You ended up going forward doing this as I understand as a class action. And that's something that I think intimidates many of us in the audience. I was curious if you could do a little speculation about how that settlement process went because this was a class action as opposed to if you had just gone through with one or two plaintiffs. Thanks.
WEST RESENDES: All right, let's get a couple questions in before we start answering them. I think I saw another hand over here.
ATTENDEE: Hi, I'm Sheryl. I'm a white woman with brown hair wearing a light green dress. I'm with the Disability Rights Section at the Department of Justice. Congratulations of the Cobb settlement and recent guidance that came out. I'm excited to look at it.
I was curious if the issue of more nationwide or statewide shortage of interpreters came up in your case at all, and how you dealt with it? Thank you.
ATTENDEE: Hi, I'm Elizabeth. I'm at the Institute for constitutional advocacy and protection at Georgetown law. I'm a white woman with brown hair and a black sweater. I was hoping you could expand a little bit about your argument in your fourth coming lawsuit about sort of the defendants being on notice of their sort of affirmative obligation to assess people for disability. I think you said one in five people in the criminal supervision system has mental health disability. So I'm just wondering how you are sort of crafting that notice argument, because I think it would apply to many services, to prisons, jails, other government programs.
WEST RESENDES: This is West. We will go ahead and start answering these as we get more questions in. Brian, did you want to start us off with any thoughts?
BRIAN DIMMICK: Sure, I will focus on that first question of class actions. Yes, that was a consideration we had. But I think what drove us toward a class action was the fear that if we just thought on behalf of the plaintiffs, what the state would do would be just accommodate those plaintiffs and not change their policies and not change their system. And, you know, I think we wanted to make sure that there was change for everyone. It did, obviously, introduce some additional challenges. And the state made a budge of arguments about how everyone who was Deaf and hard of hearing is different and they had different communication needs, how can they possibly be part of a class, that the court ultimately -- I think it did help both, you know, to get the discovery we needed about everything that was happening across the state. And we got data on all of the individual class members that we might not otherwise have gotten.
I think it probably brought them to the table for settlement purposes as well because they knew they were going to potentially face a trial without everyone in the class. But I think there can be situations where you can get the relief that you need with just a few individual Plaintiffs. I think because of the nature especially interpreters and other accommodations, that people who are Deaf and hard of hearing, we really wanted to do this as a class action.
West, do you want to talk about the interpreter issue?
WEST RESENDES: Yes, absolutely. Very quickly, about the shortage of interpreters, we definitely heard that from defendants saying, oh, we still don't have enough interpreter in Georgia, especially Deaf interpreters, I think we had two but we have four now. There are other states around the State of Georgia, especially as the prisons tend to live on the borders of the states, there is also video remote interpreter, which is another way to get access to service providers who are qualified and trained, both Deaf and hearing, and can be used in these situations. It's not the perfect solution, but it's a solution that's in this space.
I will turn it over to Allie to talk about expansion. We are getting close to time. I think I will go over a bit as I collect more questions.
ALLIE FRANKEL: Thanks, great question. So one of the notice front, we are not affirmatively arguing this, but we expect it will come up and it will go into our reply papers. Basically, a lot of the language about a person's duty to request accommodation, coming from the time I employment context. Part of what we are doing is don't be citing those cases, let's focus on title II, it's different because we are dealing with programs and people cycling in and out and not the same employee and employer relationship.
Second, Pierce talks about how the point of requests is to put the entity on notice because we can't be holding them responsible if they have no idea that they need to do something. But here, supervision systems know that lots of people in the criminal legal system have mental health disabilities. This is all over the news. Like, it is not unknown to them unless they've been -- are arguing that they are just living under a rock. Think we can argue that they are on notice, lots of folks cycling in and out will have mental health disabilities.
Also, we are not arguing that they are on notice of any given individual's mental health condition or their individual accommodation need, but on notice of the fact that people, some people, are going to need accommodation for mental health conditions. And, therefore, they need to have some system in place to figure out who those people are and what they might need. West, Brian, you helped us develop that, so please, fill in the blanks.
WEST RESENDES: Brian, handing it to you, from West.
BRIAN DIMMICK: I think that's a good summary. I won't say too much more. I do think we are trying to argue that, you know, the title II context is definitely the language and the regulation is different. I won't get into that. There is no practical way to do this if you have to wait for individual requests for everyone. So we are really trying to expand sort of what is required here.
ALLIE FRANKEL: Sorry, can I have one more very quick point? Just there is also some good cases in the methods of administration context in prisons saying that you have to have some system to track and assess disabilities or else you are administering the program in a way that is discriminatory. So we are also going to be pulling from that body of case law.
ATTENDEE: Hey, this is Matt also from DOJ. Great presentation. Thank you. I'm wearing a blue suit, purple tie, brown gray hair. Hi, Brian. I guess my question building on the other questions about notice would be these are people who presumably have had presentence reports written, so there is a system where their whole lives are sort of documented. How if at all would that play into the notice that the institution has about the individuals' needs for accommodations?
WEST RESENDES: Anymore questions? Over here.
ATTENDEE: So if you actually ended up being successful in your plan about asserting that there needs to be an affirmative evaluation or assessment of an accommodation and specifically under title II, is it possible that that case law could be used to look at other public services. A great example might be family regulation and its impacts on disabled parents. If you require that, you essentially mitigate Black communities, brown communities, indigenous communities, who historically don't get -- either misdiagnosis or not diagnosed. You might be able to get that earlier. Is that possible?
ARIANA ABOULAFIA: Thank you for mic running. To this point, quickly, yeah, totally. Part of what we plan to do is get a sense of what documents supervision authorities have and show there is clearly enough information here to know about people's mental health or other disabilities. This is not unknowable. To your point, I haven't thought about it but it seems super interesting. I don't see any reason why what we are doing wouldn't apply for orient tease covered under title II. But we will pass it off to West and Brian.
BRIAN DIMMICK: Sure. Thanks. And to the first question, this is a -- yes, there was a lot of information in the files, in prison files, about the particularly talking about Deaf and hard of hearing. But A, the prison information isn't always very good, and B, systems don't talk to each other. So either sometimes the data just isn't in the probation system's files. Even if it is, they don't look at it. So, again, yes, I think the data often or the information is there, but do the systems work together such that the agencies have the data and use the data? I think that is also about training and policies.
WEST RESENDES: All right, I just quickly wanted to share that if you go to the conference website and click on the slides, you can also see the information here about a bunch of settlement links that we have including the notice, a copy of the settlement, and the ADA policy that we have there.
Our email addresses are also up here for West, Brian, and Alison. So if you have any more questions, please do reach out. And we are also here and around at the conference. Thank you all for joining us for today's session. We sure appreciate your time.
(Applause).