Jessica Rios

Associate Editor

Loyola University Chicago School of Law, JD 2026

It is no secret that a person trying to meet their needs while incarcerated faces a daunting endeavor. However, these challenges are further complicated for someone living with a disability while held in a private prison. State and local facilities are no strangers to allegations of violating the Americans with Disabilities Act (ADA), as evidenced by a recent class action against the Illinois Department of Juvenile Justice (IDJJ) and Illinois Department of Corrections (IDOC). An Illinois disability protection and advocacy agency called Equip for Equality brought an action alleging that the IDJJ and IDOC “failed to take meaningful steps to address the lack of special education services and high school education despite being legally obligated to follow state and federal laws.” While such litigation offers a narrow means of disability justice, this path is further narrowed when filing an ADA action against a private correctional facility. Private prisons, particularly with respect to ADA compliance, should be held to the same standards and means of accountability as public facilities.

Disability advocacy in detention facilities

Outrage after horrific conditions were uncovered at the Willowbrook State School for people with developmental disabilities in 1972 sparked a wave of disability justice actions. The Protection and Advocacy system in the Developmental Disabilities Assistance and Bill of Rights Act of 1975 and the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA) were two of these actions. Protection and Advocacy Systems (P&As) work at the state level to protect individuals with disabilities by advocating on their behalf, and each operates independently. CRIPA authorizes the DOJ to bring lawsuits against prisons, jails, and other institutions engaged in a “pattern of practice” of depriving persons in custody of their constitutional rights. However, there is no requirement for the DOJ to conduct investigations.

One of the many issues P&As litigate is ADA violations. Protection and advocacy agencies are required to pursue administrative, legal, and other appropriate remedies on behalf of individuals with disabilities. Every state and territory has a P&A, and each agency has been granted a federal legislative mandate to provide legal representation and other advocacy services to all people with disabilities. P&As have the authority to 1) monitor prisons for compliance with laws concerning conditions and prisoner rights and 2) conduct investigations of abuse and neglect in prisons. These powers grant them access to the prison facilities, incarcerated persons, and incarcerated persons’ records. P&As have unique access to notoriously opaque carceral institutions.

Private prisons and the ADA

The ADA, however, does not necessarily extend to private prisons as some courts have held that private correctional facilities are not “public entities” and are, therefore, not subject to the ADA. In 2010, the Eleventh Circuit held precisely that in Edison v. Douberly, stating that “merely contracting with the State to provide governmental services, essential or otherwise,” does not render a private prison liable under the ADA. However, Armstrong v. Schwarzenegger held the same year that “a public entity [that] has contracted for the provision of such services…seems sufficient to make them the services, program, or activities of [the public] entity.” In 2014, yet another district court in Lee v. Corr. Corp. concluded that “[a]s a private prison company, [the] defendant [was] not covered by Title II of the ADA.” Attempting to unravel the issue of ADA compliance in private prisons is anything but simple. With few cases addressing the classification of private prisons head-on, case law seems to only further convolute the labyrinth that is prisoners’ rights litigation.

The ADA itself provides little, if any, further clarity. Title III of the ADA governs places of public accommodation and commercial facilities, but the section is silent on whether private correctional facilities are included in either category. Whether the ADA applies to private prisons remains dubious, and more research is needed to understand how the ADA interacts with private facilities.

Though private prisons housed only eight percent of the U.S. prison population as of 2021, clarity regarding their compliance with the ADA remains a necessity. Whether P&As may retain their authority in overseeing private prisons is also unclear, because information on private prisons is not as readily available as for public institutions. This lack of transparency is due, in part, to private prisons’ exemption from the Freedom of Information Act and its state equivalents. Even with P&A’s oversight, the categorical ambiguity surrounding private prisons under the ADA needlessly complicates ADA claims against private facilities.

An amendment to the ADA or a separate piece of legislation could settle the issue by extending the regulations that apply to public facilities to private prisons. Incarcerated plaintiffs are often pro se because they have no right to an attorney in a civil case. As a result, litigants with no legal training are often left to untangle the complexities of their claims alone or with the help of a self-taught jailhouse lawyer. Rather than relying on case law subject to change by jurisdiction, persons incarcerated in private prisons should not be burdened with yet another barrier to protecting what is otherwise a well-established, though deeply imperfect, right within the prison context.