When a Colorado prison inmate brought suit against the Department of Corrections four years ago alleging discrimination against disabled inmates and claiming that the prisons fail to comply with the Americans With Disabilities Act, lawyers with the Colorado Attorney General's office denounced the charges as erroneous and "premature." They were ready to do battle.
Now, however, the state appears to be cooperating rather than brawling. That isn't a bad idea, particularly since the state's own ADA compliance expert, who helped draft the federal act, says he is "glad" the case--now a far-reaching, class-action suit--wasfiled.
All of Colorado's prisons fail in some degree to comply with the provisions, rules and regulations of the ADA, concedes Tom Deniston, the state's consultant on the case, and at least one prison is a "nightmare" or disabled people to circumnavigate. By working to solve the complaints brought up in the suit, Deniston notes, "we'll make sure that the state does the right thing, and we won't be embarrassed by the Justice Department coming in and nailing us to the wall."
Representatives from both sides say they hope they can reach a settlement without a trial. "We're trying to come up with a consensus on what has to be done," says Denver attorney Paul Greisen, who represents the plaintiffs in the case. "We're in the process of that now."
The suit was brought in 1992 by Jesus "Jesse" Montez, who was then serving a sentence for theft and parole violation in the Territorial prison in Canon City. An auto accident years earlier had left Montez a hemiplegic, paralyzed on one side of his body, and he is confined to a wheelchair much of the time.
"The accommodations [for my handicap] amounted to zero," charges Montez. "All I got was harassment and antagonism. I spent about 90 percent of my time in segregation, because all they wanted to do was warehouse me. They didn't want to provide me with therapy or assistance of any kind."
Montez claims he was refused jobs (and the pay and privileges that come with work) and could not participate in some therapy programs because of his handicap. He acted as his own attorney in filing the suit, but the following year Greisen and Denver defense attorney David Lane signed on as his counsel. After finding that Montez's objections were shared by many other disabled inmates, the attorneys amended the complaint to include other prisoners with mobility impairments, those with sight or hearing problems, and inmates with diabetes. The case of Montez v. Romer now could affect as many as 1,100 inmates.
"These people really do face different and unique problems in the system," says Greisen. "They have had problems with slipping and falling in shower stalls, slipping and falling because the [wheelchair] ramps are too steep, or there's no access to a room other than by stairway. In some places, there are no grab rails in the showers or restrooms.
"Problems like that may seem insignificant to you or me, but they are significant to someone with disabilities. And the fact is that the law requires compliance."
Not only does the ADA require that architectural barriers be eliminated from public buildings, it also requires that programs be accessible to disabled persons. The DOC fails in that respect as well, Greisen says.
At Territorial, Montez says, getting to mental-health therapy sessions and alcohol- and drug-abuse programs required crossing a bridge in his wheelchair. "I did it once," he says. "It was a miracle that I got across that bridge. I quit going, because it was too hard to get there."
A number of the diabetic prisoners say they have lost prison jobs because receiving insulin injections requires their regular absence from work. And Greisen says that a blind nmate who was convic-ted of a sexual offense was placed in "slow group" treatment programs with retarded inmates and those with learning disabilities. As a consequence, the lawyer charges, a program that ordinarily takes nine months to complete instead lasted two to three years. (Completing such programs affects prisoners' parole eligibility and the type of facility in which they are housed.)
Where the inmates are sent to live is also a bone of contention. Many disabled inmates, even if they pose no security risk and would normally go to a minimum- security facility, are automatically sent to the medium-security Territorial prison because it has an infirmary. Lane says that the minimum-security Camp George West facility in Golden--which is fairly level, easy to get around and just thirty minutes from Craig Rehabilitation Hospital--will not accept certain disabled inmates because it is designated as a work camp, and some of them cannot work.
The DOC has made strides in coming into compliance with the ADA, Deniston says, but it hasn't broken any speed records in doing so.
"The state made an excellent effort when it started," he says. "They did a good job in determining what needed to be done. Each prison had a long list of structural items that needed to be corrected, but there was no dollar item attached. I think that's where they dropped the ball; they should have put a price tag on it, added them up and gone to the legislature and said, 'We have to have this money.' They should have gotten someone to explain why, if they didn't get the money, they'd be in trouble.
"But at that particular time, everybody in the legislature would rather break their neck than give up a dime to ADA; when the word 'ADA' came up, folks in the legislature got mad because they thought the federal government was meddling."
But the feds might meddle even more if they saw the same problems with accessibility and programs that Deniston has noted in recent tours of Colorado's prisons. "I've looked at a dozen of Colorado's prisons so far," Deniston says, "and if the Department of Justice got in there, they'd scream bloody murder. Justice has a narrow mind, and you have to follow a thin line in going through the ADA requirements."
If the Justice Department got into the fray, Deniston says, the state could wind up spending $5 million to $10 million to correct deficiencies. Deniston believes, however, that it would cost significantly less if the state could come to an agreement in the Montez case.
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"One of the advantages of asettlement is that the prisoners are not greedy," Deniston says. "They just want to have a reasonably comfortable living space. But my theory is that if the state doesn't settle, Justice will get involved, and I feel strongly that they will ask for the moon."
The two sides have already agreed that instead of making every one of the state prisons completely accessible to those with mobility difficulties, at least one facility in each security category (maximum, close, medium and minimum) should be refurbished and brought up to ADA standards. They have not yet reached an agreement as to where those inmates who are deaf, blind or suffering from diabetes will be housed.
"I'm hopeful that we will be able to resolve this quickly, not only for the inmates who are there, but for the inmate who will be coming," Greisen says. But it's too late for Montez, who contends that the treatment--or lack thereof--he received while in prison was so poor that his physical condition deteriorated behind bars. Although he had been independent and was living alone in his own apartment before his incarceration, Montez--who was released from prison in March 1995--now resides in a Cripple Creek nursing home, where he receives physical therapy, help with his daily living skills and treament for alcoholism.
"I have hope now," he says. "In prison, I was degraded and emotionally beat to the ground." As a result, he says he hopes that the DOC not only comes into compliance with the ADA, but that it is assessed monetary damages for the way he and other disabled prisoners were treated. "I want it to be a reminder that handicapped people are human," he says.