Inmates Allegheny v. Wecht

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

8-22-1996

Inmates Allegheny v. Wecht

Precedential or Non-Precedential:

Docket 95-3402

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation

"Inmates Allegheny v. Wecht" (1996). 1996 Decisions. Paper 90.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/90

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

NO. 95-3402

_______________

INMATES OF THE ALLEGHENY COUNTY JAIL, THOMAS PRICE BEY, ARTHUR

GOSLEE, ROBERT MALONEY, and CALVIN MILLIGAN on their own behalf

and on behalf of all others similarly situated,

Appellants

v.

CYRIL H. WECHT, President of the Allegheny County Board of Prison

Inspectors, and the other members of the Board; THOMAS FOERSTER

and WILLIAM H. HUNT, Commissioners for Allegheny County; FRANK J.

LUCCHINO, Controller for Allegheny County; EUGENE COON, Sheriff

for Allegheny County; THE HONORABLE PATRICK R. TAMILIA; MICHAEL

J. O'MALLEY and MARION K. FINKELHOR, JUDGES, Court of Common

Pleas of Allegheny County; RICHARD S. CALIGUIRI, Mayor of the

City of Pittsburgh, HARRIET MCCRAY; MSGR. CHARLES OWEN RICE; and

CHARLES KOZAKIEWICZ, Warden of the Allegheny County Jail and

WILLIAM R. ROBINSON, Executive Director of Prison Inspectors; and

CYRIL WECHT, THOMAS FOERSTER and WILLIAM H. HUNT, as

Commissioners of Allegheny County,

v.

THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF

PENNSYLVANIA, DEPARTMENT OF CORRECTIONS: DAVIS S. OWENS, JR.,

Commissioner, Department of Corrections; and ERSKIND DERAMUS,

Deputy Commissioner, Department of Corrections

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. No. 76-00743

_______________

Argued March 22, 1996

Before: BECKER and McKEE, Circuit Judges,

and POLLAK, District Judge

(Filed August 22, 1996)

Donald Driscoll (argued)

Neighborhood Legal Services Association

928 Penn Avenue

Pittsburgh, PA 15222-3799

Attorney for Appellant

Dennis R. Biondo (argued)

Timothy W. Pawol

Peter G. Nychis

Office of Allegheny County

Law Department

445 Fort Pitt Boulevard

300 Fort Pitt Commons Building

Pittsburgh, PA 15219

Attorneys for Appellees

______________

OPINION OF THE COURT

_______________

POLLAK, District Judge.

In this long-running litigation aspects of which have

been before this court before appellants, a class consisting

of all past, present, and future inmates of the Allegheny County

Jail, appeal from an order entered by the district court on May

26, 1995, which, after argument but without an evidentiary

hearing, approved a modification of a portion of a consent decree

entered in July 1989. Under the terms of the 1989 consent

decree, appellees Allegheny County, officials of Allegheny

County, and officials of the Allegheny County Jail, all of whom

we will refer to collectively as "the County" were required to

establish a facility to provide services to mentally ill inmates.

The May 26, 1995 order vacated this directive, replacing it with

a requirement that the County provide services to mentally ill

inmates through community-based mental health programs. Under

the terms of the May 26, 1995 order, only inmates who meet

certain eligibility criteria could participate in the community-

based programs. An inmate with a "past history of violence" or

who faces charges more serious than a "minor, non-violent crime"

would be ineligible for admission to any of these community-based

mental health programs. Appellants assert that this limitation

violates the Rehabilitation Act of 1973 and the Americans with

Disabilities Act of 1990. We find that resolving this question

requires ascertaining certain facts, and we therefore vacate the

May 26, 1995 order and remand for factfinding.

I.

The Allegheny County Jail holds both convicted

criminals and pretrial detainees. In 1976, inmates of the jail

filed this class action litigation, asserting, under 42 U.S.C. §

1983, that the conditions of confinement did not satisfy minimum

constitutional requirements. In two opinions issued in 1978, the

district court found that conditions at the jail were shockingly

substandard in a wide variety of ways. Owens-El v. Robinson, 442

F. Supp. 1368 (W.D. Pa. 1978); Owens-El v. Robinson, 457 F. Supp.

984 (W.D. Pa. 1978). As this court later summarized certain of

the district court's general findings:

Living facilities were unhealthy and unsafe.

The plumbing system was antiquated and in

disrepair. As a result, leaks and overflows

frequently occurred in the cells. The cells

lacked adequate lighting; the efforts of

inmate-electricians seeking to remedy that

defect caused exposed electrical wires which

presented fire and shock hazards. Prisoners

were required to sleep on canvas cots, many

of which were discolored by blood, vomit,

feces, and urine. Vermin abounded. Cell

temperatures fluctuated between extreme cold

in the winter and extreme heat in the summer.

The shortage of guards reduced supervision of

the inmates and permitted hoarding and

vandalism of necessary supplies. This in

turn contributed significantly to chronic

shortages of necessary items such as blankets

and bath towels.

. . .

Some inmates were placed in solitary

confinement for up to fourteen days without a

mattress, toilet articles, or a change of

clothing. Other inmates were confined in the

nude in the isolation cell, an unfurnished,

darkened, windowless room for up to fourteen

consecutive hours, without any blanket or

sheets.

Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 757

(3d Cir. 1979).

The district court addressed in some detail the

treatment accorded inmates who displayed mental disorders. The

court noted that no psychiatrists or psychologists served on the

jail staff. Further, the court described the "restraint room" in

which were housed inmates who acted out, or who suffered from

withdrawal, delirium tremens, epileptic seizures, or other mental

conditions:

In this bleak room the inmates are

placed in a hospital gown or naked on a

canvas cot with a hole cut in the middle.

Their body wastes drop through the hole into

a tub on the floor underneath the cot. The

tub is emptied twice a day. These inmates

are shackled by leather restraints to the

canvas cots. Physical restraints may be

either full, where the inmate's wrists and

ankles are bound by the manacles to the cot,

or partial, where only one or both ankles are

manacled. The medical logs, introduced into

evidence, revealed that inmates have been

held in such restraints for as long as

twenty-nine days.

Owens-El, 442 F. Supp. at 1380. The court decided, however, that

addressing the treatment of mentally ill inmates would "go[]

beyond the parameters of the case." Id. at 1382.

We reversed this latter ruling and concluded that the

district court had authority to address the mental health

conditions at the jail. Inmates of the Allegheny County Jail v.

Peirce, 612 F.2d 754, 763 (3d Cir. 1979). On remand, the

district court held that the lack of services for mentally ill

inmates violated the Constitution. The court found that "a

significant proportion, perhaps as many as a quarter to a third,"

of the inmates at the jail could be considered seriously mentally

ill. Inmates of the Allegheny County Jail v. Peirce, 487 F.

Supp. 638, 641 (W.D. Pa. 1980). And the court further found

that, notwithstanding the high proportion of mentally ill

inmates, there was

no system for care of mentally ill inmates in

the jail and . . . the haphazard and

inconsistent care and protection now being

afforded is far below minimum standards. The

deficiencies in immediate care result in

physical danger to the ill inmates and to

others, create security problems in the jail,

aggravate rather than alleviate the

conditions of many of the most seriously ill,

and contribute to the chaotic environment in

the jail.

Id. at 643. Accordingly, the court ordered the County (1) to

create a separate mental health unit within the jail to house

mentally ill inmates; (2) to establish a program for screening

all incoming inmates for mental illness; (3) to hire an

administrator to implement mental illness programs; and (4) to

hire two psychiatrists and additional nurses. The court further

ordered that the mental health unit be staffed with at least one

guard and one nurse per shift, and that civil commitment

proceedings should commence within 72 hours of a determination

that an inmate should be transferred to a mental health

institution.

In 1988, the district court, in the face of dramatic

overcrowding in the jail and continuing constitutional

violations, ordered that the jail be closed. Inmates of the

Allegheny County Jail v. Wecht, 699 F. Supp. 1137 (W.D. Pa.

1988). The court concluded that the 102-year old facility

"cannot handle the demands required of a modern jail facility."

Id. at 1146. Among the most grievous problems caused by

overcrowding was the lack of space for adequate mental health

care. The forty beds in the new mental health unit were

regularly filled, and, as a result, mentally ill inmates were

often housed among the general inmate population, causing

disruptions among both groups.

We affirmed the district court's order closing the

jail. Inmates of the Allegheny County Jail v. Wecht, 874 F.2d

147, 155 (3d Cir. 1989).

On July 7, 1989, subsequent to the affirmance of the

jail-closing order, the parties to this litigation entered into a

consent decree to remedy the many constitutional violations that

had been found. Paragraph 7 of the consent decree addressed the

provision of services for mentally ill inmates as follows:

The Defendants commit themselves to the

development of a treatment/work release

facility for the mentally ill comparable to

the presently planned drug treatment facility

as set forth in Defendant's Exhibit 3,

admitted at the June 12, 1989 court hearing.

A specific plan for this project and a

progress report on its implementation shall

be included in the monthly progress reports

required by the Court's Order of May 12,

1989.

Consent Decree ¶ 7, entered July 7, 1989. Under this provision,

the County became obligated to establish a single, institutional

facility for handling mentally ill inmates.

Three years later, the County sought a modification of

the consent decree. Rather than create a separate facility for

mentally ill inmates, the County sought to implement a plan under

which mentally ill inmates would receive treatment in community-

based mental health programs. Under the County's plan, case

managers would link mentally ill inmates with services provided

within the community. Applying Rufo v. Inmates of Suffolk County

Jail, 112 S. Ct. 748 (1992) in which the Supreme Court

established a standard for assessing proposed modifications of

consent decrees the district court granted the County's

requested modification. Inmates of the Allegheny County Jail v.

Wecht, 797 F. Supp. 428, 434-35 (W.D. Pa. 1992). Under Rufo, the

party seeking modification must, among other things, "establish[]

that a significant change in circumstances warrants revision of

the decree." 112 S. Ct. at 760. The district court concluded

that mental health philosophy had shifted from an emphasis on

institutionalized care to a belief in the efficacy of treatment

in non-institutional settings, and that this change in philosophy

constituted a change in circumstances sufficient to satisfy Rufo.

We reversed, concluding that the change in mental

health philosophy predated the 1989 consent decree and therefore

did not justify the modification. Inmates of Allegheny County v.

Wecht, No. 92-3434 (3d Cir. May 20, 1993). We noted, however,

that both the inmates and the County no longer viewed the terms

of the 1989 consent decree as the optimal remedy and that both

parties supported community-based treatment. While the County

viewed community-based services alone as the best approach, the

inmates wanted such services to be supplemented by decentralized

"structured residential" settings for those inmates who could not

be accommodated through community-based programs. We remanded in

order to allow the district court to make factual findings as to

whether some other change of circumstance e.g., an increased

availability of community-based programs subsequent to 1989

might justify a modification of the consent decree.

In 1995, the County and the inmates undertook to

negotiate a modification of the 1989 consent decree. Under the

proposed modification, Paragraph 7 of the 1989 consent decree,

mandating the creation of a separate facility for the mentally

ill, was to be eliminated. In its place, the parties agreed to

the creation of a Forensic Support Program, under which the

County would provide community-based mental health services to a

maximum of twenty-five inmates. The agreement contemplated that

the Forensic Support Program would utilize the services of local

hospitals, psychiatric institutions, and human service and

release groups, and that judicial approval would be required

before an inmate would be released into the program.

The County and the inmates recognized that not all

mentally ill inmates would be appropriate candidates for

treatment in the community-based Forensic Support Program.

Based on this recognition, the parties developed eligibility

criteria covering several categories of mentally ill inmates:

The agreed eligibility criteria are as follows:

[1] Persons must not pose an apparent risk

of harm to themselves or others;

[2] Persons must not be engaged in a

calculated conspiracy;

[3] Persons must not be charged with any

sexual assault crimes, any crimes involving

the victimization of minors, and crimes

involving drug trafficking, including, but

not limited to, the delivery or possession

with the intent to deliver a controlled

substance, or conspiracy to commit any of

these crimes.

[4] Persons must agree to comply with any

conditions of release, if any, imposed by the

holding authority, including participation in

prescribed treatment.

Order of May 26, 1995 at ¶ 5. But the parties were not able to

reach agreement on whether inmates who had a history of violence,

or who were charged with violent crimes, should be categorically

excluded from community-based programs or whether individualized

assessments of such persons could adequately screen out those who

posed a public safety risk. It is this disagreement that has

precipitated this newest round of litigation.

In the district court, the County contended that an

inmate "must be charged with a minor, non-violent crime and not

have a past history of violence" in order to qualify for the

community-based programs. Public safety, as well as public

support for community-based programs, the County argued, require

the exclusion from these programs of all inmates who may have had

a history of violence. In contrast, the inmates contended that

individual assessments of the threats posed by mentally ill

inmates would adequately address the County's public safety

concerns. On May 26, 1995, the district court approved the

County's proposed modification and, accordingly, directed that

only an inmate "charged with a minor, non-violent crime" and who

did not have a "past history of violence" could be included in

the community-based programs. The court's order contains no

explication of the phrase "charged with a minor, non-violent

crime" or the term "past history of violence." Since the order

was not accompanied by an opinion, or by findings of fact and

conclusions of law, the precise scope of the quoted language is

unclear.

After entry of the district court's order, the inmates

moved for reconsideration or, alternatively, for findings of fact

pursuant to Rule 52(b) of the Rules of Civil Procedure. The

motion was denied, and the inmates thereupon appealed from the

district court's May 26, 1995 order modifying the consent

decree.

II.

We review a modification of a consent decree for abuse

of discretion. Delaware Valley Citizens' Council v. Commonwealth

of Pennsylvania, 674 F.2d 976, 978 (3d Cir. 1982) ("Our scope of

review on this appeal is narrow: whether, in its order modifying

and refusing to modify the consent decree, the district court

abused its discretion."). See also Favia v. Indiana University

of Pennsylvania, 7 F.3d 332, 340-42 (3d Cir. 1993). Abuse of

discretion can be found when a district court's decision is

"arbitrary, capricious or irrational or employs improper

standards, criteria or procedures," Favia, 7 F.3d at 340 (quoting

Pennsylvania v. Local Union 542, 807 F.2d 330 (3d Cir. 1986)),

such as when a district court does not "hold an evidentiary

hearing before modifying a consent decree in such a manner as to

remove requirements previously imposed." Delaware Valley, 674

F.2d at 981.

Appellants argue that under the Rehabilitation Act of

1973 and the Americans with Disabilities Act of 1990 (ADA) the

County cannot categorically exclude from community-based mental

health services all inmates who are charged with minor, non-

violent crimes or who have past histories of violence. According

to the appellants, violent behavior is often a manifestation of

mental illness. Thus, the appellants argue, categorical

exclusion on the basis of such behavior, whether actual or

alleged, constitutes disability-based discrimination.

Acknowledging that persons who pose a threat to others are not

"qualified" for community-based programs, the inmates assert that

some mentally ill persons who have in the past committed acts of

violence, or who are currently charged with violent crimes, do

not pose a present threat to others, and that such persons are,

indeed, "qualified" for community-based services. Providing

individualized assessments, the inmates contend, would reasonably

accommodate the needs of this group of mentally ill persons

without unduly burdening County resources.

In response, the County first argues that the

Rehabilitation Act and the ADA do not apply to correctional

facilities. Second assuming arguendo that these statutes do

apply the County maintains that differentiating among inmates

on the basis of their violent behavior does not amount to

disability-based discrimination. And even if exclusion of

violent inmates from community-based mental health services is,

in some cases, exclusion on the basis of disability, the County

asserts that inmates who are charged with violent crimes or who

have been violent in the past are categorically unqualified for

community-based programs because they pose an unacceptable safety

threat and because providing community-based services to

potentially violent inmates would jeopardize public support for

these services. The County further argues that individualized

assessments could not reliably screen out those inmates with a

violent past who pose a present safety threat. Moreover, the

County argues, even if individual assessments could reliably

identify those inmates who currently pose a safety threat, such

individualized assessments would be a heavy drain on County

resources and thus would not constitute a reasonable

accommodation.

A.

The first question to be addressed is whether the

Rehabilitation Act and the ADA apply to correctional facilities.

The Rehabilitation Act and the ADA have a common

substantive core prohibiting broad arrays of institutions that

serve the public from discriminating against disabled individuals

on the basis of disability. Section 504 of the Rehabilitation

Act applies not only to any program conducted by an executive

agency of the federal government but to "any program or activity

receiving Federal financial assistance," 29 U.S.C. § 794(a); the

term "program or activity" is defined as "all of the operations

of a department, agency, special purpose district, or other

instrumentality of a State or of a local government." 29 U.S.C.

§ 794(b)(1)(A). Title II of the ADA applies to the "services,

programs, or activities" of any "public entity," 42 U.S.C. §

12132, without regard to whether such services, programs, or

activities are federally funded; a "public entity" includes "any

State or local government [and] any department, agency, special

purpose district, or other instrumentality of a State or States

or local government." 42 U.S.C. § 12131(1). Thus, as a matter

of syntax, the two statutes cover all aspects of state and local

governance. Accordingly, if it be the case that when Congress

writes a statute in plain words those plain words are to be the

paramount guides utilized by the courts in construing the statute

see, e.g., United States v. Alvarez-Sanchez, 114 S. Ct. 1599,

1603 (1994) ("When interpreting a statute, we look first and

foremost to its text."); Estate of Cowart v. Nicklos Drilling

Co., 505 U.S. 469, 475 (1992) ("In a statutory construction case,

the beginning point must be the language of the statute, and when

a statute speaks with clarity to an issue judicial inquiry into

the statute's meaning, in all but the most extraordinary

circumstance, is finished.") it would seem to follow that both

the ADA and the Rehabilitation Act apply to state and local

correctional facilities.

Relying on the statute's plain language, the Ninth

Circuit has held that the Rehabilitation Act protects state

prison inmates from disability-based discrimination in the

administration of programs for inmates of correctional

facilities. In Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988), a

deaf inmate sued prison officials, asserting that the prison was

obligated under the Rehabilitation Act to provide a qualified

sign language interpreter in various prison settings, including

counseling sessions and prison administrative hearings. Prison

officials argued that the Rehabilitation Act did not protect

inmates from disability discrimination because "inmates are

hardly in need of help to live independently within their

prisons." Id. at 562. The Ninth Circuit disagreed:

First, . . . the plain language of the

Justice Department's implementing

regulations, 28 C.F.R. § 42.503, and the Act

itself, which states that it applies to "anyprogram or activity

receiving Federal

financial assistance," 29 U.S.C. § 794

(emphasis added) belies [prison officials']

argument. Second, the Act's goals of

independent living and vocational

rehabilitation should in fact mirror the

goals of prison officials as they attempt to

rehabilitate prisoners and prepare them to

lead productive lives once their sentences

are complete. By ensuring that inmates have

meaningful access to prison activities, such

as disciplinary proceedings and counseling,

the goals of both the institution and the

Rehabilitation Act are served.

Id.

Notwithstanding the unambiguous language of the

disability statutes, the Tenth Circuit has held that the

Rehabilitation Act and the ADA do not apply to at least certain

claims arising in the correctional context. The Tenth Circuit's

starting point was Williams v. Meese, 926 F.2d 994, 997 (10th

Cir. 1991). The court there held that the Rehabilitation Act

does not apply to employment discrimination claims challenging

certain aspects of programs involving the employment of federal

prison inmates. The court stated, "The section of the

Rehabilitation Act cited by the plaintiff [section 504], does not

give plaintiff any substantive rights since the Federal Bureau of

Prisons does not fit the definition of 'programs or activities'

governed by that section." In White v. Colorado, 82 F.3d 364,

(10th Cir. 1996), the holding in Williams was extended to an

employment discrimination claim brought by a state prisoner

pursuant to the ADA: "For the same reasoning relied upon in

Williams, we hold that the ADA does not apply to prison

employment situations either." Id. at 367.

Two other circuit courts have voiced an opinion on the

applicability of the ADA to prisons, albeit without expressly

ruling on the question. In Bryant v. Madigan, 84 F.3d 246, 249

(7th Cir. 1996), the Court of Appeals for the Seventh Circuit

held that the ADA did not provide a cause of action to a disabled

state prisoner to challenge the prison's failure to provide

guardrails to his bed. The court concluded that no

discrimination occurred because the inmate did not allege that he

had been excluded from any prison "service," "program," or

"activity." In so holding, the court expressed some doubt as to

the applicability of the ADA to correctional facilities: "Could

Congress really have intended disabled prisoners to be

mainstreamed into an already highly restricted prison society?"

Without pointing to any evidence of congressional intent which

might indicate one way or another the answer to this question,

the court opined that "[j]udge-made exceptions . . . to laws of

general applicability are justified to avoid absurdity." Id. at

248-49.

In Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),

cert. denied, 116 S. Ct. 772 (1996), the Court of Appeals for the

Fourth Circuit strongly intimated that the Rehabilitation Act and

the ADA do not apply to state prisons. The actual holding in

Torcasio was that, at the time of the alleged discrimination, it

was not clearly established that the ADA and the Rehabilitation

Act apply to state prisons, and, consequently, the defendant

prison officials were entitled to qualified immunity under these

statutes. The Torcasio court's primary reason for doubting

that the statutes cover prisons was that the statutes, although

seeming to speak in comprehensive terms "all the operations of

a department, agency, special purpose district, or other

instrumentality of a State or of a local government," 29 U.S.C. §

794(b)(1)(A) (Rehabilitation Act); "any department, agency,

special purpose district, or other instrumentality of a State . .

. or local government," 42 U.S.C. § 12131(1) (ADA) do not

expressly recite that prisons are among the "all" or "any"

entities covered. The Fourth Circuit stated: "Because the

management of state prisons implicates 'decision[s] of the most

fundamental sort for a sovereign entity,' Congress must speak

unequivocally before we will conclude that it has 'clearly'

subjected state prisons to its enactments." 57 F.3d at 1346

(citation omitted). In support of its view that the statutory

provisions do not speak sufficiently "clearly," the court quoted

from Will v. Michigan Dept. of State Police, 491 U.S. 58, 65

(1989), in which the Supreme Court, quoting an earlier

pronouncement in Atascadero State Hospital v. Scanlon, 473 U.S.

234, 242 (1985), observed that "if Congress intends to alter the

'usual constitutional balance between the States and the Federal

Government,' it must make its intention to do so 'unmistakably

clear in the language of the statute.'"

We of course acknowledge that the management of prisons

is a governmental responsibility of great importance. But so too

are the management of police and firefighting forces, the

management of child protection services, and the management of

the court system state functions routinely understood to be

covered by the Rehabilitation Act and the ADA notwithstanding

that these functions are not expressly referred to in either of

the statutes. See Thomlison v. City of Omaha, 63 F.3d 786 (8th

Cir. 1995) (affirming the denial of summary judgment in a

Rehabilitation Act claim brought by a firefighter); Doe v.

Judicial Nominating Commission, 906 F. Supp. 1534 (S.D. Fla.

1995) (holding that the process for judicial nominations must

comply with the ADA); Clark v. Virginia Board of Bar Examiners,

880 F. Supp. 430 (E.D. Va. 1995) (holding that requiring state

bar applicants to answer questions regarding psychotherapy

violates the ADA); Eric L. v. Bird, 848 F. Supp. 303 (D.N.H.

1994) (holding that the plaintiffs had stated an ADA claim in

alleging that the state provided foster care services that

discriminated on the basis of disability); Ethridge v. Alabama,

847 F. Supp. 903 (M.D. Ala. 1993) (denying summary judgment in an

ADA case brought by a disabled police officer); Galloway v.

Superior Court of the District of Columbia, 816 F. Supp. 12

(D.D.C. 1993) (holding that the categorical exclusion of blind

people from juries violates the ADA).

More to the point, we are not persuaded that the so-

called "clear-statement" cases, of which Will is a recent

example, have been intended by the Supreme Court to provide a

canon of statutory interpretation which can be of help in

interpreting statutes whose over-all design indisputably

contemplates both that the policies and practices of state (as

well as local) governments are required to conform to norms

established by Congress and that the remedies include the

bringing of a lawsuit in the federal courts. On the contrary,

the Court has made it plain that the clear-statement requirement

is to be resorted to in those instances in which the text of a

federal statute furnishes little real guidance as to whether

Congress intended to subject state agencies to potential

liability. For instance, in EEOC v. Wyoming, 460 U.S. 226, 243

n.18 (1983), in which the Court examined amendments to the Age

Discrimination in Employment Act (ADEA), the Court stated that

the clear-statement rule was "a tool with which to divine the

meaning of otherwise ambiguous statutory intent." The Court

found, however, that the rule offered no guidance on the question

raised by the case because "there is no doubt what the intent of

Congress was: to extend the application of the ADEA to the

States." Id. In Gregory v. Ashcroft, 501 U.S. 452 (1991), the

Court examined whether a statutory exemption to the ADEA for

"appointee[s] on the policymaking level" included state-court

judges. Finding the language of the exemption ambiguous, the

Court applied the clear-statement rule and held that, because

Congress had not specifically excluded state-court judges from

the exemption, state-court judges would be considered to be

included in the exempted category. As it had stated in EEOC v.

Wyoming, the Court in Gregory v. Ashcroft described the clear-

statement rule as "a rule of statutory construction to be applied

where statutory intent is ambiguous." Id. at 470.

We think that Will aptly illustrates the scope and

limits of the "clear-statement" rule. In that case, which arose

in a Michigan state court, Ray Will, a state employee, sued

Michigan's Department of State Police and Director of State

Police. The gravamen of Will's suit was that the defendants had

denied the plaintiff a promotion because of his brother's radical

political views, a denial alleged to contravene plaintiff's

federal and state constitutional rights. In seeking vindication

of his federal constitutional claims, Will relied on 42 U.S.C. §

1983, the statute which underpins so much federal civil rights

litigation, including the case at bar. Section 1983, which

derives from the Civil Rights Act of 1871, provides that "[e]very

person, who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . subjects . . . any citizen

of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution . . . shall be liable to

the party injured in an action at law, suit in equity, or other

proper proceeding for redress." The Michigan Supreme Court

concluded that Will's federal claims were not cognizable for the

reason that neither a state nor a state official acting in an

official capacity is a "person" within the meaning of section

1983. The United States Supreme Court affirmed. Prior to Will,

which was decided in 1989, the Court had held, in 1978, in Monell

v. New York City Department of Social Services, 436 U.S. 658

(1978), that a municipality is a suable "person" within the

meaning of section 1983. But in Will the Court declined to read

"person" so broadly as to include the several states. The Court

noted that the construction of section 1983 contended for by Will

would, in effect, rewrite the statute in the form "every person,

including a State, who under color of any statute . . .

subjects," and that this "would be a decidedly awkward way of

expressing an intent to subject the States to liability." 491

U.S. at 64. Cutting strongly against this "awkward" construction

that would have made a state suable under section 1983 both in

federal courts and in the state's own courts was the fact that in

1979, just a year after Monell, the Court had ruled, in Quern v.

Jordan, 440 U.S. 332 (1979), that, by virtue of the Eleventh

Amendment's grant to the states of immunity from suit in the

federal courts, a federal district court was without jurisdiction

to entertain a section 1983 suit seeking to recover money damages

from a state. While recognizing that Congress has the authority,

in the exercise of certain of its constitutional powers, to enact

legislation overcoming the states' Eleventh Amendment immunity,

the Court in Quern found that "§ 1983 does not explicitly and by

clear language indicate on its face an intent to sweep away the

immunity of the States; nor does it have a history which focuses

directly on the question of state liability and which shows that

Congress considered and firmly decided to abrogate the Eleventh

Amendment immunity of the States." 440 U.S. at 345. In Will,

the Court built upon Quern v. Jordan. Having held in Quern v.

Jordan that Congress, in 1871, in enacting section 1983, "had not

explicitly and by clear language" evidenced an intent to override

the states' Eleventh Amendment immunity, the Court in Will held

that, in utilizing the all-purpose but hardly self-defining word

"person" in section 1983, Congress had not evidenced an intent to

take the major step of bringing state governments as well as

local governments within what was in 1871 an unprecedented

federal supervisory regime.

In marked contrast with section 1983, the

Rehabilitation Act and the ADA both speak expressly of state

governments and "any" or "all" of the operations thereof. Also,

in marked contrast with section 1983, both the Rehabilitation Act

and the ADA expressly abrogate the Eleventh Amendment immunity of

the states. Against that background, we do not see it as our

function to require Congress to specify each of the important

components of state governments that comprise Congress' use of

the words "any" and "all."

The Fourth Circuit, in Torcasio, supplemented its

clear-statement analysis by finding that some of the statutory

language did not lead comfortably to prison-based claims.

Specifically, the court pointed to 42 U.S.C. § 12131(2), in which

the ADA defines a "qualified individual with a disability" as a

person who "meets the essential eligibility requirements for the

receipt of services or the participation in programs or

activities." According to the Fourth Circuit, correctional

facilities do not provide "services," "programs," or

"activities," as those terms are ordinarily understood.

Furthermore, the court concluded that "[t]he terms 'eligible' and

'participate' imply voluntariness on the part of an applicant who

seeks a benefit from the state; they do not bring to mind

prisoners who are being held against their will." 57 F.3d at

1347. In the context of the case at bar, arguments of this sort

do not seem compelling. Here, it is agreed that the jail is to

make certain forms of treatment available to mentally ill

inmates. It is appropriate to characterize such treatment as a

"service," in that it confers a benefit on the inmates. And the

different forms of treatment may be properly described as

"programs" in that they are an organized series of events for the

provision of the services. Indeed, the treatment regimen at

issue is in fact called the "Forensic Support Program." In order

to be deemed "qualified" to receive the services offered through

this program, one must fall within one or another restricted

category of the inmate population i.e., one must be shown to be

"eligible" within certain specified criteria of eligibility: one

must be mentally ill, not pose an apparent threat to oneself or

others, and, of central importance to this appeal, must be

charged with no more than a minor, non-violent crime and not have

a history of violence. Inmates who meet these criteria

"participate" in mental health services by undergoing the

treatment protocol chosen by jail officials. The fact that the

participation of the inmates may not be voluntary does not alter

the conclusion that they do participate.

B.

Having held that the Rehabilitation Act and the ADA

apply to correctional facilities, we must now determine how they

apply.

The Rehabilitation Act and the ADA prohibit public

entities from discriminating on the basis of disability against

qualified individuals with disabilities. As previously noted,

see supra note 7, section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a

disability . . . shall, solely by reason of

her or his disability, be excluded from the

participation in, be denied the benefits of,

or be subjected to discrimination under any

program or activity receiving Federal

financial assistance . . . .

29 U.S.C. § 794(a). Moreover, as also previously noted, Title II

of the ADA extends the Rehabilitation Act's coverage to all

public entities, whether or not they receive federal funds:

[N]o qualified individual with a disability

shall, by reason of such disability, be

excluded from participation in or be denied

the benefits of the services, programs, or

activities of a public entity, or be

subjected to discrimination by any such

entity.

42 U.S.C. § 12132.

Although the language of the two statutes differs

slightly e.g., the Rehabilitation Act protects against

discrimination "solely by reason of . . . disability," whereas

the ADA protects against discrimination "by reason of . . .

disability" the standards under the two statutes are identical.

McDonald v. Pennsylvania Department of Public Welfare, 62 F.3d

92, 94 (3d Cir. 1995) ("Whether suit is filed under the

Rehabilitation Act or under the Disabilities Act, the substantive

standards for determining liability are the same."). We have

held that there are four elements for establishing a violation of

section 504: (1) that the plaintiff is an "individual with a

disability" as defined under the Act, (2) that the plaintiff is

"otherwise qualified" for the program sought or that the

plaintiff would be qualified if the defendant made reasonable

modifications to the program, (3) that the plaintiff was excluded

from the program "solely by reason of her or his disability," and

(4) that the program receives federal funds. Wagner v. Fair

Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995). With

the exception of the fourth element, which is not pertinent to a

claim brought under the ADA, the elements of a claim under Title

II of the ADA are interchangeable with the elements of a claim

under section 504. Thus, an ADA Title II claimant must show (1)

that the plaintiff is "qualified" or that the plaintiff would be

qualified if the defendant made reasonable modifications, (2)

that the plaintiff has a "disability," and (3) that "by reason of

such disability," the plaintiff was excluded from a service,

program, or activity provided by a public entity.

In applying the disability statutes to prisons, courts

must give considerable weight to the unique needs of prison

administration and should, when appropriate, defer to the

judgments of prison officials. As the Supreme Court stated in

Turner v. Safley, 482 U.S. 78 (1987), "[J]udgments regarding

prison security 'are peculiarly within the province and

professional expertise of corrections officials, and, in the

absence of substantial evidence in the record to indicate that

the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert

judgment in such matters.'" Id. at 86 (quoting Pell v.

Procunier, 417 U.S. 817, 827 (1974)). Thus, in determining

whether a plaintiff is qualified for a particular program or

service provided by the prison, a court should weigh the

plaintiff's qualifications in light of the needs for prison

security and other legitimate interests of the prison.

Similarly, a court determining the reasonableness of a proposed

modification to a program or service provided by a prison should

take into account the prison's needs and should ordinarily defer

to the views of prison officials.

The issues to which we now turn are (1) whether

discrimination against mentally ill inmates because they are

charged with violent crimes, or because they have a history of

violence, constitutes discrimination "by reason of" disability;

and (2) whether inmates who are charged with violent crimes or

who have a history of violence are "qualified" for community-

based services.

C.

The challenged provision of the May 26, 1995 order is,

on its face, neutral with regard to disability. Under this

provision, inmates are excluded from community-based services

because they are charged with violent crimes or because they have

a history of violence; this provision does not by its terms

exclude inmates due to disability. Accordingly, the County

argues that such exclusion is not "by reason of" disability:

"[I]nmates are not excluded because they have mental [illnesses],

but because they are prisoners who have committed violent

crimes." Appellees' Brief at 27. In the County's view,

exclusion on the basis of violence cannot amount to disability-

based discrimination because such exclusion is facially neutral

with regard to disability and does not evince discriminatory

animus. We conclude, however, that a facially neutral rule may

amount to exclusion "by reason of" disability if such a rule

causes a cognizable discriminatory impact.

In NAACP v. Medical Center, Inc., 657 F.2d 1322, 1328

(3d Cir. 1981), we held that proof of discriminatory intent was

not required in a Rehabilitation Act case. Instead, "proof of

disparate impact or effects is sufficient." In Alexander v.

Choate, 469 U.S. 287 (1985), the Supreme Court, "assume[d]

without deciding that § 504 reaches at least some conduct that

has an unjustifiable disparate impact," id. at 299, and held that

a Rehabilitation Act plaintiff need not show discriminatory

intent: "Discrimination against the handicapped was perceived by

Congress to be most often the product, not of invidious animus,

but rather of thoughtlessness and indifference of benign

neglect." Id. at 295. The Court reviewed statements by members

of Congress that the Act sought to eliminate, inter alia,

"architectural barriers," "discrimination in access to public

transportation," "the discriminatory effect of job qualification

. . . procedures," and "[d]iscrimination because [disabled

individuals] do not have the simplest forms of special

educational and rehabilitation services." Id. at 297. "These

statements," the Court concluded, "would ring hollow if the

resulting legislation could not rectify the harms resulting from

action that discriminated by effect as well as by design." Id.at 297.

In Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir.

1995), we held that proof of discrimination under the ADA, as

under the Rehabilitation Act, does not require a showing of

discriminatory animus: "Because the ADA evolved from an attempt

to remedy the effects of 'benign neglect' resulting from the

'invisibility' of the disabled, Congress could not have intended

to limit the Act's protections and prohibitions to circumstances

involving deliberate discrimination." See also Crowder v.

Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996) (holding that the

ADA is intended "to cover both intentional discrimination and

discrimination as a result of facially neutral laws").

Although in Helen L. we did not explicitly state that a disparate

impact claim may be brought under the ADA, that result was

implicit in our conclusion that proof of discriminatory intent is

not required. In addition, Department of Justice regulations

implementing the ADA support the conclusion that the

discrimination prohibited by Title II includes seemingly neutral

governmental policies which nonetheless have a discriminatory

effect on individuals with disabilities. Thus, one regulation

provides:

A public entity shall not impose or apply

eligibility criteria that screen out or tend

to screen out an individual with a disability

or any class of individuals with disabilities

from fully and equally enjoying any service,

program, or activity, unless such criteria

can be shown to be necessary for the

provision of the service, program, or

activity being offered.

28 C.F.R. § 35.130(b)(8) (1995). The explanatory comments show

that, under this regulation, neutral rules may be actionable if

they tend to exclude disabled persons because of some

characteristic symptomatic of their disability:

[R]equiring presentation of a driver's

license as the sole means of identification

for purposes of paying by check would violate

this section in situations where, for

example, individuals with severe vision

impairments or developmental disabilities or

epilepsy are ineligible to receive a driver's

license and the use of an alternative means

of identification, such as another photo I.D.

or credit card, is feasible.

28 C.F.R. Pt. 35, App. A at 461 (1995). In this example,

individuals with vision impairment are excluded from purchasing

by check because of an incidental implication of their

disability. See also id. at 460 (stating that the regulations

"prohibit[] both blatantly exclusionary policies or practices and

nonessential policies and practices that are neutral on their

face, but deny individuals with disabilities an effective

opportunity to participate").

Although we have not previously had occasion to discuss

the proof structure of a disparate impact case brought under the

disability statutes, the elements of disparate impact cases

brought under Title VII are instructive. Under Title VII, the

first element of a disparate impact claim is a showing that a

facially neutral policy has a disproportionate impact on a

protected group. See 42 U.S.C. § 2000e-2(k); Albemarle Paper Co.

v. Moody, 422 U.S. 405 (1975); Griggs v. Duke Power Co., 401 U.S.

424 (1971). Under the Rehabilitation Act or the ADA, the

equivalent showing is that the challenged policy has a disparate

impact on individuals with disabilities. To make such a

showing is to establish discrimination "by reason of" disability.

On the record before us, we cannot determine whether the

challenged portion of the district court's order has a disparate

impact on individuals with disabilities.

In order to determine whether the challenged portion of

the May 26, 1995 order has discriminatory effects, we must know

whether the violence assertedly committed by members of the

appellant class was caused by their disabilities. The district

court made no factual findings addressing this question.

Appellants rely upon a psychologist's affidavit, which states,

"It is very common for mental illness to manifest itself through

minor forms of physical or what may be viewed as aggressive

expression. The acutely mentally ill are often unable to resolve

problems they face verbally or with the aid of friends or family

members." App. at 68A (Aff. of Lillian L. Meyers, Ph.D). While

this affidavit may offer some help, it is extremely vague for

instance, it is unclear what types of mental illnesses are being

discussed or what forms of violent behavior are being attributed

to such illnesses. Given the absence of factual findings by the

district court and with only this affidavit before us, we are not

in a position to say how, or if, violence that may have been

committed by members of the appellant class is symptomatic of

their mental illnesses. As a result, we have no basis for

deciding whether exclusion of these class members on the basis of

violence is exclusion "by reason of" disability.

D.

Assuming that the challenged criterion causes a

disparate impact on members of the appellant class which can be

attributed to their disabilities and that such exclusion

therefore constitutes discrimination "by reason of" disability

the district court's order of May 26, 1995 will nonetheless

survive an ADA and Rehabilitation Act challenge if the excluded

class members fail to show that they are qualified for community-

based mental health services. We must therefore examine this

element of the Rehabilitation Act and the ADA.

The ADA defines the term "qualified individual with a

disability" as

an individual with a disability who, with or

without reasonable modifications to rules,

policies, or practices, the removal of

architectural, communication, or

transportation barriers, or the provision of

auxiliary aids and services, meets the

essential eligibility requirements for the

receipt of services or the participation in

programs or activities provided by a public

entity.

42 U.S.C. § 12131(2). Under this definition, an individual is

"qualified" for the receipt of governmental services if the

individual satisfies the "essential eligibility requirements" for

receiving the services. A "qualified" individual need not

satisfy all the eligibility requirements if "reasonable

modifications" can be made to allow the individual to

participate. See Wagner v. Fair Acres Geriatric Center, 49 F.3d

1002, 1009 (3d Cir. 1995) ("[A]n individual may be otherwise

qualified in some instances even though he cannot meet all of a

program's requirements."). In order to determine whether an ADA

plaintiff is "qualified," a court must (1) ascertain the

eligibility criteria for the challenged activity, (2) determine

which criteria are "essential," and (3) determine whether the

plaintiff either satisfies the essential criteria or could

satisfy these criteria if reasonable modifications were made. As

discussed above, we think that as a general rule courts should

defer to the judgments of prison officials as to what

qualifications are essential and what modifications would be

reasonable.

In this case, the eligibility criteria for community-

based mental health services include: "Persons must be charged

with a minor, non-violent crime and not have a past history of

violence." Order of May 26, 1995 at ¶ 5. In this appeal,

appellants argue that this is not an "essential" criterion for

community-based services. Appellants further argue that the

public safety concerns furthered by the challenged criterion can

be addressed through individualized assessments of otherwise

eligible inmates. Providing such assessments, appellants

contend, would be a reasonable modification.

The ADA regulations provide some guidance on which

eligibility requirements are "essential" and which are subject to

"reasonable modifications":

(7) A public entity shall make reasonable

modifications in policies, practices, or

procedures when the modifications are

necessary to avoid discrimination on the

basis of disability, unless the public entity

can demonstrate that making the modifications

would fundamentally alter the nature of the

service, program, or activity.

(8) A public entity shall not impose or

apply eligibility criteria that screen out or

tend to screen out an individual with a

disability or any class of individuals with

disabilities from fully and equally enjoying

any service, program, or activity, unless

such criteria can be shown to be necessary

for the provision of the service, program, or

activity being offered.

28 C.F.R. § 35.130(b) (1995). Under these provisions, the

"essential eligibility requirements" of a public entity's program

are those which are "necessary for the provision" of the program

and which cannot be modified without "fundamentally alter[ing]"

the nature of the program. See Easley v. Snider, 36 F.3d 297,

302 (3d Cir. 1994) (stating, in a section 504 case, "[I]f there

is no factual basis in the record demonstrating that

accommodating the individual would require a fundamental

modification or an undue burden, then the handicapped person isotherwise

qualified and refusal to waive the requirement is

discriminatory.") (emphasis in original); Pottgen v. Missouri

State High School Activities Ass'n, 40 F.3d 926, 932-33 (8th Cir.

1994) (R. Arnold, J., dissenting) (stating, in an ADA case, "But

if a rule can be modified without doing violence to its essential

purposes . . ., I do not believe that it can be 'essential' to

the nature of the program or activity to refuse to modify the

rule.").

The County argues that allowing violent inmates to

participate in the community-based programs would destroy the

viability of such programs:

The County will not release violent offenders

into the community, nor will the community or

the providers accept them. Additionally, it

is hard to imagine that a judge will approve

their release. If given a choice to either

open these programs to all prisoners

including violent offenders or shut them

down, then the County will be compelled to

shut them down. The County will not risk a

tragedy in the community which would

jeopardize the existence of the other

community-based programs. Sustaining the

Inmates' argument and thus, accommodating the

mental health inmates who are charged with a

violent crime, convicted of a violent crime,

or possess a past history of violence, with

an individualized assessment, would be

unreasonable because it would necessitate a

modification of an essential nature of the

program, as well as, place undue burdens on

the County.

Appellees' Brief at 20-21. Although this passage does not

precisely articulate what the County considers to be the

fundamental purposes of the community-based programs or how these

purposes would be jeopardized by providing individualized

assessments of inmates charged with violent crimes or who have

histories of violence, the statement can be construed as

expressing the County's belief that allowing inmates charged with

violent crimes or who have a history of violence to participate

in community-based programs would threaten public safety; the

County further argues that this threat to safety would undermine

public confidence in community-based programs. The County thus

appears to assert that an "essential eligibility requirement" for

the community-based programs is that an inmate not threaten

public safety. We recognize that ensuring public safety is,

indeed, essential if the prison is to provide community-based

services to mentally ill inmates. The only question is whether

the goal of protecting public safety can be accomplished without

excluding all mentally ill inmates charged with violent crimes or

who have a history of violence.

In School Board of Nassau County v. Arline, 480 U.S.

273 (1987), a case arising under the Rehabilitation Act, the

Court recognized that, in some circumstances, the interests of

persons with disabilities must be balanced against public health

and safety concerns. The ADA implements Arline's conclusion

that covered entities must balance the needs of public health and

safety against the interests of individuals with disabilities.

Title II regulations explicitly adopt the standard articulated in

Arline for determining whether providing services to a person

with a disability poses an unacceptable risk:

The determination that a person poses a

direct threat to the health or safety of

others may not be based on generalizations or

stereotypes about the effects of a particular

disability. It must be based on an

individualized assessment, based on

reasonable judgment that relies on current

medical evidence or on the best available

objective evidence, to determine: the nature,

duration, and severity of the risk; the

probability that the potential injury will

actually occur; and whether reasonable

modifications of policies, practices, or

procedures will mitigate the risk. This is

the test established by the Supreme Court in

Arline. Such an inquiry is essential if the

law is to achieve its goal of protecting

disabled individuals from discrimination

based on prejudice, stereotypes, or unfounded

fear, while giving appropriate weight to

legitimate concerns, such as the need to

avoid exposing others to significant health

and safety risks.

28 C.F.R. Pt. 35, App. A at 455-56 (1995).

The record on appeal does not contain any factual basis

for determining whether, in light of the applicable standards,

the threat to public safety posed by inmates charged with, or who

have a history of, violence, makes them categorically unqualified

for community-based services. There have been no factual

findings regarding the risks that such inmates would pose if they

were allowed to participate in community-based services. We do

not know what types of mental illness the inmates are afflicted

with, the nature of their past violence, and their propensity for

violent behavior in the future. Additionally, the record does

not reveal the details of the services provided under the rubric

of community-based programs or the safety protections in place

for these programs. Thus, as we noted above, see supra note 2,

we do not know the extent of the interaction, if any, between

members of the public and those inmates who participate; we

similarly do not know what security measures are in place during

any such interactions.

We further lack any factual basis for determining

whether the modification appellants seek is reasonable. Rather

than a blanket exclusion of all inmates who are charged with, or

who have a history of, violence, appellants seek individualized

assessments of the risks posed by each inmate who might otherwise

be qualified for community-based programs. Under such a regime,

inmates assessed as dangerous would be excluded, while those

assessed as safe would be eligible. While Arline and the ADA

regulations recognize a preference for individualized assessments

of the qualifications of persons with disabilities, rather than

excluding entire categories of disabled persons, the ADA does not

require individualized assessments in every case. The comments

to the regulations state:

A public entity may, however, impose

neutral rules and criteria that screen out,

or tend to screen out, individuals with

disabilities if the criteria are necessary

for the safe operation of the program in

question. Examples of safety qualifications

that would be justifiable in appropriate

circumstances would include eligibility

requirements for drivers' license, or a

requirement that all participants in a

recreational rafting expedition be able to

meet a necessary level of swimming

proficiency. Safety requirements must be

based on actual risks and not on speculation,

stereotypes, or generalizations about

individuals with disabilities.

28 C.F.R. Pt. 35, App. A at 461 (1995). Requiring individualized

assessments in every case might impose an undue hardship on a

covered entity. See Arline, 480 U.S. at 287 n.17 ("Accommodation

is not reasonable if it . . . imposes 'undue financial and

administrative burdens'" on a covered entity) (quoting

Southeastern Community College v. Davis, 442 U.S. 397, 412

(1979)); Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002,

1009 (3d Cir. 1995) ("[R]equiring accommodation is unreasonable

if it would place undue burdens, such as extensive costs, on the

recipient of federal funds."). In order to determine whether

requiring individualized assessments would constitute a

reasonable modification, a court must weigh the effectiveness of

the assessments against the costs they would impose. Here, the

record contains no findings on how effective individual

assessments would be in screening out inmates who pose a threat

to public safety. Nor are there findings on the burdens the

County would incur if it were required to make such assessments.

Thus, on the record before us, we cannot determine

whether inmates excluded from community-based mental health

services on the basis of past violent behavior or on the basis of

pending charges of violent conduct are otherwise qualified for

these services or whether they could be qualified with reasonable

modifications to the services. As a result, there is a factual

dispute regarding whether the modification approved by the

district court complies with the ADA. Accordingly, we hold that

the district court abused its discretion in approving the

modification of the consent decree without first holding a

hearing and issuing factual findings. See Delaware Valley

Citizens' Council v. Pennsylvania, 674 F.2d 976, 981 (3d Cir.

1982). We will therefore vacate the order modifying the consent

decree and remand to the district court. On remand, the

plaintiffs will bear the burden of establishing that they are

qualified for the programs at issue and that the proposed

screening devices constitute reasonable accommodations to their

disabilities. Given the degree of deference to which prison

officials' policies are entitled, the plaintiffs' burden is not a

light one. We believe that a remand is necessary, however, so

that the parties may present evidence, and the district court may

assess this evidence, in light of the applicable standards which,

in this opinion, we have undertaken to clarify.

Conclusion

We conclude that, contrary to appellees' contention,

correctional facilities are within the scope of the

Rehabilitation Act and the ADA. However, the record developed in

the district court and presented on this appeal does not provide

enough information to enable us to determine whether, as

appellants contend, the exclusion of certain members of the

appellant class from participation in the community-based mental

health programs contravenes the Rehabilitation Act and the ADA.

Accordingly, we vacate the order appealed from and remand the

case for further consideration by the district court. On an

amplified evidentiary record, the district court will be in a

position to prepare factual findings and conclusions of law

directed to the following issues: (1) whether the exclusion from

community-based mental health services of mentally ill inmates

who are charged with violent crimes or who have past histories of

violence constitutes discrimination by reason of disability; and

(2) whether, with or without reasonable modifications of the

services, such inmates are otherwise qualified to participate in

community-based mental health services.

INMATES OF THE ALLEGHENY COUNTY JAIL, et al. v. CYRIL H. WECHT,

et al., No. 95-3402

BECKER, Circuit Judge, concurring and dissenting.

Judge Pollak has explained convincingly why the

Rehabilitation Act (RA) and the Americans with Disabilities Act

(ADA) apply to the community-based forensic support program at

issue in the case. I, therefore, join in Part II.A of the

majority opinion. For the reasons set forth below, I cannot

agree that the district court abused its discretion in modifying

the consent decree to exclude violent offenders from the forensic

program, or that this case should be remanded for a protracted

set of hearings. To that extent, I respectfully dissent.

I.

As the majority aptly notes, a central issue in this

appeal is whether mentally ill individuals who have been charged

with or committed a violent offense are "qualified" for the

forensic program. As the ADA makes clear, an individual with a

disability can still be "qualified" (or "otherwise qualified" in

the vernacular of the RA) if he or she can meet the "essential

eligibility requirements" of that program with reasonable

accommodation, which can include both "reasonable modifications

to rules, policies, or practices" and the "provision of auxiliary

aids and services." See 42 U.S.C. § 12131(2).

Obviously, mentally ill violent offenders cannot meet

the eligibility requirements of the forensic program without both

a modification of the program's existing requirements and an

accommodation of their particular condition. Individuals who

have committed or been charged with violent crimes in the past

are specifically excluded from program participation, and, even

if they receive an individualized assessment, many are not likely

to satisfy the essential requirement of any such program -- that

they not pose a violent risk in the future -- without treatment.

Therefore, appellants seek the following accommodation: they

propose that mentally ill violent offenders be offered individual

psychiatric assessments and that those offenders diagnosed with

"treatable" violent tendencies be allowed to take part in the

forensic program.

We must determine whether this proposed accommodation

is reasonable. An accommodation is reasonable if it would not

"necessitate modification of the essential nature of a program"

or "place undue burdens such as extensive costs, on the recipient

of federal funds." Strathie v. Department of Transp., 716 F.2d

227, 230 (3d Cir. 1983).

I do not believe that Judge Cohill abused his

discretion when he concluded that Appellants' suggested

accommodation was unreasonable. To me, the issue is plain.

Including violent offenders in a community-release program (like

the forensic program at issue here) without doubt changes its

"essential nature." Community-based programs are accepted by the

public because they exclude individuals who have committed

violent offenses. It is clear that letting individuals charged

with or convicted of murder, rape, or kidnapping into the

community -- regardless of whether they can be "treated" -- would

cause a significant public outcry and lead to the elimination of

the forensic program. Furthermore, it is undeniable that the

enormous cost of requiring individualized psychiatric assessments

of all potential releasees would place an unacceptable burden on

the Appellees. In my view, Judge Cohill did not abuse his

discretion by considering these realities. As Appellants are not

"qualified" for the program, they need not be allowed to

participate.

II.

I also cannot agree with the majority's decision to

send this case back to the district court for more factfinding on

matters such as the Appellants' "propensity for violent behavior

in the future." Majority Opinion at 44. In my view, this is a

meaningless exercise. Notwithstanding the conclusory and

undocumented affidavit of Lillian Meyers, one the majority

itself labels "vague," Majority Opinion at 37, it seems evident

that this tremendous expenditure of judicial resources will

uncover nothing, for the relevant psychology literature suggests

that mental health professionals cannot reliably predict

dangerousness, at least not yet.

Although mental health professionals once presumed that

they were able to predict violent behavior accurately, beginning

in the 1970s researchers began compiling data demonstrating that

this assumption was incorrect. See Randy K. Otto, On the Ability

of Mental Health Professionals to "Predict Dangerousness": A

Commentary on Interpretations of the "Dangerousness" Literature,

18 LAW & PSYCHOL. REV. 43, 45 (1994) [hereinafter Dangerousness

Literature]. Indeed, early researchers concluded that mental

health professionals were "less accurate than the flip of a

coin," see Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the

Presumption of Expertise: Flipping Coins in the Courtroom, 62

CAL. L. REV. 693, 737 (1974), and should be barred from offering

testimony. Id. at 733-738; see also American Psychiatric

Association, Report of the American Psychiatric Association Task

force on Clinical Aspects of the Violent Individual 20 (1974)

(concluding that "[n]either psychiatrists nor anyone else have

demonstrated an ability to predict future violence or

dangerousness."). Charles Ewing, a psychologist and attorney,

went so far as to conclude that psychiatrists or psychologists

who attempt to predict dangerousness violate their ethical

obligations "to render judgments that rested on a scientific

basis." Charles P. Ewing, "Dr. Death" and the Case for an

Ethical Ban on Psychiatric and Psychological Predictions of

Dangerousness in Capital Sentencing Proceedings, 8 AM. J.L. &

MED. 407, 418 (1983).

Professor Randy Otto -- a leading researcher --

concludes that although the pessimism of these "first generation"

researchers may have been exaggerated, as of 1994, researchers

have at best "some" ability to predict dangerousness.

Dangerousness Literature, supra at 62-63. "Some" ability to

predict dangerousness, of course, is patently insufficient when

the safety of the public is at stake. And neither the literature

nor the papers in this case reveal any discovery in the last two

years that there is any reliable way to predict dangerousness

without reference to prior conduct.

It seems to me, therefore, that the venture upon which

the majority has set the district court has insufficient promise

to justify interfering with its exercise of discretion. I also

believe that the cost of this enterprise would be frightful,

itself an element of "reasonable accommodation."

III.

The majority's improvident decision is aggravated by

the unusual posture of this case. Much like the "trouble with

Harry" in the classic Hitchcock movie, the trouble with the

forensic program is that it is dead. The program has expired.

See Majority Opinion at 47, n.28. Although, as the majority

explains, vacatur of the order allows the district court to meet

its obligations under the 1989 decree, the 1989 decree provided

for an in-house mental health facility, not a community-based

program. Therefore, individualized assessments to determine

whether violent offenders should be allowed in the community

release program will be relevant only if a community release

program is again established. If the parties do not again agree

to a community release program -- or if Judge Cohill does not

approve it -- the majority opinion will be a meaningless

exercise. Thus, while the case may be technically justiciable,

it seems a wiser exercise of judicial discretion to stay our

hand.

I would affirm the order of the district court.