DRM Attorney, Nicole Joseph appeared on Midday by WYPR to discuss Suspensions, Discipline and the School to Prison Pipeline.
Access the podcast of the 9/15/16 Interview
Defending the Housing Rights of Tenants with Disabilities
The Maryland Court of Special Appeals issued an opinion in Hosford v. Chateau Foghorn, LP holding that Maryland landlord-tenant law is not preempted by federal law and policy that requires federally subsidized landlords to include lease provisions that permit landlord to evict tenants for the use or possession of marijuana.
Under Maryland law, to evict a tenant, a landlord must prove that i) there was a breach; ii) the breach was material; and iii) the breach was so substantial that it warrants eviction. In Hosford v. Chateau Foghorn, LP a federally subsidized landlord argued that they need not produce evidence that the breach was substantial and warrants eviction because of federal law requiring certain lease terms that permit landlords to evict tenants for the use or possession of controlled substances on the premises.[1]
The Court of Special Appeals rejected the landlord’s argument and held, in part: “To require a state court, as a matter of law, to evict a disabled member of that class [low-income persons] out of the home had had resided in for 24-25 years for having one marijuana plant in his bathtub, for his own medical use, with no evidence of distribution or attempted distribution, further no Congressional intent that we have been able to identify.”
This decision builds on an earlier success by Disability Rights Maryland in the Circuit Court of Baltimore City. Similar to Hosford, the landlord in DRM’s case argued that a jury could not consider whether a breach was substantial and warranted eviction when a poor disabled tenant admitted to drug use, even though there was evidence of rehabilitation and treatment on the part of the tenant. DRM defeated the landlord’s legal argument in that case and later settled the matter.
Regardless, these decisions together are a very strong bulwark against the third-party policing policies that deprive and shut too many persons with disabilities from much needed assistance. As the Maryland courts and legislature have made evident, there is room for compassion in the context of federally subsidized landlords and the critical need for housing.
Protecting the Maryland landlord tenant law requiring a review of an individual’s circumstances to determine whether an eviction is substantial and warrants eviction is all the more critical as medical practitioners become more aware of the connection between disability, pain control, and substance abuse. While the decision in no way sanctions the use and abuse of controlled substances, it makes clear that a Court’s duty is not to rubber-stamp a landlord’s complaint for possession.
Perhaps a happier solution to complex problems for individuals is not reactionary, indiscriminate evictions in all cases, but a more nuanced approach that permit individuals who struggle with drug abuse to seek the help they need and continue to be successful in the community.
[1] IN October 2015, Maryland decriminalized the possession of Marijuana in small amounts.
Author: David Prater, Attorney
September 12, 2016
National Report Addresses Segregation of Inmates with Mental Illness
Between 80,000 and 100,000 inmates are currently segregated in prison cells nationwide for 22-24 hours per day, for days, months, years, and in some cases decades at a time.
Segregation disproportionately affects inmates with mental illness and research shows that individuals may acquire symptoms of mental illness, or experience exacerbated symptoms of mental illness, as a result of the conditions in segregation. Today, the Amplifying Voices of Inmates with Disabilities (AVID) Prison Project, in partnership with the National Disability Rights Network (NDRN) and the federally mandated protection and advocacy (P&A) agencies in over 20 states across the country, released Locked Up and Locked Down: Segregation of Inmates with Mental Illness. The report outlines the advocacy efforts undertaken on behalf of inmates with mental illness in segregation by the P&A network, and calls for greater national prison reform measures.
The report contains examples of both litigation and non-litigation advocacy cases from 21 P&As, and illustrates the sensory deprivation, psychiatric decompensation, and behaviors relating to self-harm and suicide experienced by inmates with mental illness in segregation across the country. According to the report, segregation means the practice of having prisoners isolated in a small cell for 22 to 24 hours a day. Inmates in segregation frequently have limited access to health and counseling services, programming, and services that support rehabilitation and re-entry. Report findings include limited access to mental health treatment, punishment for disability-related behaviors with increased segregation and restraint, the worsening of inmates’ psychiatric symptoms, and death related to the conditions in segregation.
Disability Rights Maryland, the Maryland P&A and a contributor to the report, describes settling a case in which the federal district court asked the P&A to represent an inmate who had filed a lawsuit alleging brutality in prison. Although the events leading up to the inmate’s lawsuit were barred by the statute of limitation, the P&A learned that the inmate had been held in segregation for over three years, which was harmful to his mental health. The P&A and its co-counsel negotiated a settlement agreement with the State Department of Public Safety and Correctional Services to address the inmate’s conditions of confinement including avoiding the use of administrative segregation whenever possible and moving the individual to a prison with less segregation and closer to family members to further mitigate his isolation..
The report includes the following recommendations to address this crisis in our nation’s prisons:
- Increased federal funding to the P&A network for corrections-based monitoring and advocacy;
- Creation of independent corrections ombuds offices at the state level in order to address inmate concerns before they rise to the level of litigation;
- Increased data collection by the U.S. Department of Justice’s Bureau of Justice Statistics regarding the prevalence of people with mental illness in U.S. prisons and jails;
- Increased monitoring and outreach in prisons by P&As across the country;
- Fostering of collaborative relationships between state prison systems and P&As.
The report is available at AVIDprisonproject.org, where both the text of the report, and extensive original interviews with inmates with mental illness and corrections experts can be accessed.
About the AVID Prison Project
The AVID Prison Project is an advocacy initiative focused on the needs of current and former inmates with disabilities. The project was developed by Disability Rights Washington and this report is a collaboration among NDRN, the P&As in Arizona, Colorado, New York, South Carolina, and Washington, with communication assistance from the P&As in Louisiana and Texas, and additional input from Connecticut, Florida, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Montana, Nebraska, Nevada, North Carolina, Ohio, Oregon, Tennessee, and Vermont.
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Raise the Disability Vote for Affordable Housing in Baltimore!
A referendum on whether Baltimore City should create an Affordable Housing Trust Fund will be on the November 8th ballot! This summer, a coalition of advocacy organizations came together as Housing for All and gathered more than 18,000 petition signatures demanding that a referendum on a Charter Amendment be added to the November 2016 Election Ballot.
The Affordable Housing Trust Fund would require Baltimore City to create a fund into which vacant land, existing housing, and abandoned properties would be turned into affordable housing and made available to city residents making 50% or less than the Area Median Income. A housing trust fund is legal entity used to create and sustain affordable housing for those most in need. It is established by local or state government and receives ongoing public funding to support the preservation and production of affordable housing. Over 750 cities, counties, and states have Housing Trust Funds. Baltimore should have an Affordable Housing Trust Fund!
All around the country, but especially in Maryland, people with disabilities have worst case housing needs and are much more likely to need affordable housing than others in our community. Many people with disabilities survive on SSI-level income, which is below the federal poverty limit and about 18% of Area Median Income for the Baltimore Area. The referendum is just a first step – the Affordable Housing Trust Fund would only be created, not funded at this stage – but this model has been used successfully around the country and could be a good way of producing and maintaining affordable housing for those who need it most. For the Affordable Housing Trust Fund to become a reality, it is essential that Baltimore City residents with disabilities vote on November 8th!
Joint Statement on the Justice Department’s Investigation of Baltimore City Police
The National Disability Rights Network (NDRN) and its member organization, Disability Rights Maryland (DRM), are pleased to see the treatment of individuals with disabilities by law enforcement officers included throughout the Department of Justice’s Civil Rights Division’s (CRD) recent investigation into the conduct of the Baltimore City Police Department (BPD). NDRN and DRM support the CRD’s efforts to ensure that government agencies act in a manner that protects the rights of community members with disabilities, and complies with the rule of law. Through their work representing individuals with disabilities, the nationwide network of Protection and Advocacy (P&A) agencies often learn of cases involving negative and sometimes extremely dangerous interactions between people with disabilities and police. These interactions often include individuals with mental health disabilities, as well as individuals with sensory, intellectual, developmental and other types of disabilities; and disproportionately affect additional specific communities, particularly people of color.
The CRD report calls for improvement in the following key areas:
- The failure of the BPD to provide basic reasonable accommodations to individuals with disabilities.
- The failure of the BPD to use common de-escalation techniques on individuals in crisis, resulting in the use of excessive force (e.g. “drive stun mode”), arrest, unnecessary hospitalization, and/or death.
- Deficient training, oversight, and policies to protect individuals with the types of disabilities that officers are likely to encounter in their day-to-day work.
- Lack of collaboration with community partners who may assist BPD in serving individuals with disabilities, thereby avoiding or limiting the need for police intervention.
Negative interactions with police have long been a concern of NDRN and the P&A Network. We hope that the independent voices of individuals with disabilities will be heard clearly, and their needs will stay at the forefront throughout the implementation of the report’s recommendations.
See the full report at: https://www.justice.gov/opa/file/883366/download
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The National Disability Rights Network (NDRN) is the nonprofit membership organization for the federally mandated Protection and Advocacy (P&A) Systems and the Client Assistance Programs (CAP) for individuals with disabilities. Collectively, the Network is the largest provider of legally based advocacy services to people with disabilities in the United States.
Disability Rights Maryland (formerly Maryland Disability Law Center), a 501(c)(3) nonprofit organization, is the federally mandated Protection & Advocacy organization charged with advancing and defending the rights of Marylanders with all types of disabilities, of all ages, statewide.
Press Release – DOJ BPD report
