Newsletter
7/15/18 Issue #11
About the Rights of the Deaf and Hard of Hearing being typed, may take longer than spoken
conversations. Therefore, if a facility has a
Deaf and hard of hearing people serving prison insure that their programs and activities are rule that limits inmate telephone use to fifteen
terms are frequently denied basic due process accessible to handicapped persons. For example, minutes, they may need to extend this time for
rights and access to rehabilitation programs and correctional agencies should provide for the a deaf or hard of hearing inmate using a TTY.
prison services because prison administrators availability of qualified interpreters (certified, The facility must also ensure that the deaf and
fail to understand their communication needs. where possible, by a recognized certification hard of hearing inmates have the same hours
However, deaf and hard of hearing inmates have agency) to enable hearing-impaired inmates to of access to accessible telephone service as do
constitutional and statutory rights of access in participate on an equal basis with non-handi- other inmates.
correctional facilities. These rights are provid- capped inmates in the rehabilitation programs Some facilities limit TTY use to daytime
ing the impetus for many correctional systems offered by the correctional agencies (e.g., educa- hours because the office where a TTY is stored
to re-evaluate the services they have available to tional programs). is only open during those hours. This violates
deaf and hard of hearing inmates. 45 Fed. Reg. 37630 (June 3, 1980). the ADA if other inmates can make telephone
Section 504 of the Rehabilitation Act of 1973, 29 Under this regulation, a deaf or hard of hearing calls during evening or weekend hours. No ap-
U.S.C. § 794, guarantees persons with disabilities inmate has a right to be provided with qualified pointments or written requests to use the TTY
equal access to any entity that receives federal interpreter services to enable him or her to par- should be required, if the same is not required
financial assistance, either directly or indirectly. ticipate in or benefit from programs and services (continued on page 2)
Title II of the Americans with Disabilities Act the prison offers other inmates, as well as at any
(ADA), 42 U.S.C. § 12141 et seq., now extends disciplinary or other proceedings. Write to Delegate Lindsey
these same rights to inmates in all state and local Policies and procedures must also be modified,
During the 2018 General Assembly, Dele-
facilities. The standards of accessibility are sim- in order to give deaf and hard of hearing in-
gate Joseph C. Lindsey, sponsored a bill to
ilar under these two laws.The U.S. Department mates access to accessible telecommunications
reverse current unjust law making it Ap-
of Justice Analysis of its Section 504 regulation equipment that is equal to the opportunity
pealable. HB 1312 Sentencing guidelines;
explains the specific obligations that jails and given to other inmates to make telephone calls.
appeals. Sentence Guideline Amendment
prisons have as to deaf and hard of hearing For example, a facility must not only provide
Provision F.
inmates. a TTY or other effective telecommunications
This bill would have reversed the current
The analysis states: device, it must also allow sufficient time to use
unjust law making it Appealable. The
[D]etention and correctional agencies must the device. These conversations, if they are
purpose of a proposed amendment is to
eliminate disparity and achieve consisten-
From Senator Jennifer McClellan cy and fairness in sentencing by allowing
appellate review of the decision of a judge
SB 734 is a measure I introduced in 2015 and Virginia held in Fishback v. Commonwealth to depart from the sentencing guidelines
2016 to require law enforcement to record of Virginia that they should be. SB 100 recommendations.
custodial interrogations where practicable, requires new sentencing proceedings for The amendment will also prevent judges
and require the Department of Criminal those defendants convicted of nonviolent from justifying their departure on the
Justice Services to establish, publish, and felonies prior to the abolition of parole basis of factors that have already been
disseminate a model policy or guideline for who were sentenced before the date of considered in calculating the guidelines.
law-enforcement personnel for the record- Fishback decision. While this bill reported A common practice that is so inherently
ing of custodial interrogations. Initially a out of committee on an 8-7 vote, it failed to unfair and unjust. More importantly, the
recommendation of the Innocence Project pass the Senate on a 19-20 vote when one amendment will provide a review remedy
and drafted in consultation with law en- Republican changed his vote and another for presently incarcerated persons whose
forcement, this bill addresses the growing did not vote at all. I plan to work with Gov- sentences exceeds the guidelines recom-
concern over false confessions leading ernor Northam’s Administration to see if mendation.
to the wrongful conviction of innocent anything can be done through the clemency This bill failed in the 2018 General Assem-
defendants by codifying what is quickly process to address these individuals bly.
becoming a best practice for law enforce- Contact the Senator to show your support RIHD requests that we all show appre-
ment. This year, the Roosevelt Institute at for her work and let her know your stories ciation and support for Delegate Lindsey
George Mason University, a non-partisan, if you are a Fishback prisoner or someone by sending email, card, letter requesting
student-run think tank focused on drafting with a custodial interrogation issue that he re-introduce his bill in 2019 General
and implementing policy proposals on the lead to a false conviction: Assembly Session.
state and local level, asked me to introduce
the bill again. SB 734 failed to report out of District Office telephone: (804) 698-7509 Delegate Joseph Lindsey, D
committee on a party-line 6-9 vote. Richmond Office (during session) Norfolk 90th District
P.O. Box 396 500 East Plume Street, Suite 105
Although Virginia abolished parole in 1995, Norfolk, Virginia 23510
Virginia juries were not instructed for an- Richmond, Virginia 23218
(757) 623-6522
other five years until the Supreme Court of DelJLindsey@house.virginia.gov
Page 2
(“Rights” continued from page 1) of hearing inmates must have access to relay 1995 places limitations on inmates seeking
for other inmates to use a telephone. Finally, services. federal remedies for prison civil rights
some facilities prohibit inmates from using toll- In 2008, the U.S. Department of Justice pro- violations. 42 U.S.C. § 1997(e)(a). Most
free “800” numbers or “711” access numbers to posed new rules for Title II of the Americans importantly, inmates may not pursue federal
reach a telecommunications relay service. These with Disabilities Act (ADA), which apply to claims until they have exhausted all available
policies must be changed to enable deaf and hard state and local governments. Complaints can administrative remedies. Therefore, before
of hearing inmates to reach the statewide TTY be filed with the U.S. Department of Justice filing a lawsuit, prisoners should make sure
or other relay service, mandated by Title IV of (Civil Rights Division, 950 Pennsylvania they have already attempted to resolve their
the ADA. Relay services enable communication Avenue, NW, Disability Rights Section – complaint through the appropriate prison
between a deaf or hard of hearing person and NYAV, Washington, DC 20530) or in courts. complaint procedures.
a person who uses a telephone. Deaf and hard However, the Prison Litigation Reform Act of