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Precedential or Non-Precedential: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




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                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, 

(W.D. Pa. 1978); Owens-El v. Robinson, 

(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, 

, 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.

. The court decided, however, that
addressing the treatment of mentally ill inmates would "go[]
beyond the parameters of the case." 

          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, 

, 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.

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, 

(W.D. Pa.
1988). The court concluded that the 102-year old facility
"cannot handle the demands required of a modern jail facility."

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, 

, 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, 

(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, 

, 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 

. 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, 

, 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, 

, 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," 

(quoting
Pennsylvania v. Local Union 542, 

(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 

.
          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, 

,
1603 (1994) ("When interpreting a statute, we look first and
foremost to its text."); Estate of Cowart v. Nicklos Drilling
Co., 

, 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, 

(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." 

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.

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, 

, 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, 

,
(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." 

          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, 

, 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." 

          In Torcasio v. Murray, 

(4th Cir. 1995),
cert. denied, 

(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 

(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, 

, 65
(1989), in which the Supreme Court, quoting an earlier
pronouncement in Atascadero State Hospital v. Scanlon, 

, 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, 

(8th
Cir. 1995) (affirming the denial of summary judgment in a
Rehabilitation Act claim brought by a firefighter); Doe v.
Judicial Nominating Commission, 

(S.D. Fla.
1995) (holding that the process for judicial nominations must
comply with the ADA); Clark v. Virginia Board of Bar Examiners,

(E.D. Va. 1995) (holding that requiring state
bar applicants to answer questions regarding psychotherapy
violates the ADA); Eric L. v. Bird, 

(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,

(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, 

(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, 

, 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." 

v. Ashcroft, 

(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." 

          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, 

(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 

. 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, 

(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 

. 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 

. 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, 

, 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, 

, 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, 

(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.'" 

(quoting Pell v.
Procunier, 

, 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., 

, 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, 

(1985), the Supreme Court, "assume[d]
without deciding that § 504 reaches at least some conduct that
has an unjustifiable disparate impact," 

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." 

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." 

"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, 

, 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, 

, 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 

(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, 

(1975); Griggs v. Duke Power Co., 

(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, 

, 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, 

,
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, 

, 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, 

(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 

n.17 ("Accommodation
is not reasonable if it . . . imposes 'undue financial and
administrative burdens'" on a covered entity) (quoting
Southeastern Community College v. Davis, 

, 412
(1979)); Wagner v. Fair Acres Geriatric Center, 

,
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, 

, 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., 

, 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. 

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.