WilmerHale Scores Win For Hearing Impaired Mass. Prisoners

By Jack Rodgers | February 23, 2024, 7:02 PM EST ·

prisoner looking through bars

A prisoner looks out of a cell at MCI-Cedar Junction, a facility maintained by the Massachusetts Department of Corrections. Following a lawsuit litigated with pro bono assistance from a team of WilmerHale attorneys, a federal judge last month ordered the department to put together a plan to provide emergency alarms and evacuation procedures for incarcerated people who are deaf or hard of hearing. (Photo by Jessey Dearing for The Boston Globe via Getty Images)

Massachusetts inmate Daniel McNair has significant hearing loss in both ears. The 69-year-old reads lips and uses hearing aids to help him when correctional officers make announcements on his cell block — but he doesn't always hear their calls.

For most things, like hearing when it's time for him to take his medication, it's simply an inconvenience. But for others, like missing when emergency drills are announced, the consequences are significantly more serious.

"Well, I was ironing my clothes, listening to music, and all of a sudden a CO came by, knocked at the door and [was] like, 'What are you doing?'" McNair told a Massachusetts federal court in September. "And I said, 'I'm ironing my clothes.' He said, 'There's a fire drill. You would have been burned.'"

Massachusetts prisons, like the one in Norfolk where McNair has lived since 2007, weren't equipped with visual or even traditional audio alarms. Instead, the facilities relied on correctional officers yelling in order to alert inmates of important announcements.

They were conditions that hearing-impaired inmates, in a 2015 class action litigated with pro bono assistance from WilmerHale, said violated the Americans with Disabilities Act.

And last month, after a two-month bench trial, the prisoners won a major victory as U.S. District Court Judge Richard G. Stearns gave the state until May 16 to create a new, comprehensive emergency response system.

WilmerHale was brought onto the case to assist the nonprofit groups Prisoners' Legal Services of Massachusetts, the Disability Law Center and the Washington Lawyers' Committee for Civil Rights and Urban Affairs.

Jim Pingeon, litigation director for Prisoners' Legal Services of Massachusetts, told Law360 that the decision was an important victory.

"People with disabilities should be treated like anybody else and should have all of the same rights and privileges as anybody else," he said.

The emergency notification system was the only undecided issue in the ADA case following a 2019 settlement that provided prisoners with a range of accommodations. As part of that agreement, the Massachusetts Department of Corrections gave about 300 hearing aids to impaired prisoners and hired sign language interpreters.

The DOC also has agreed to provide telephones with visual aids to assist hard-of-hearing inmates, a point of particular concern for lead plaintiff Leonard Briggs, who is completely deaf. It was Briggs who first reached out to Pingeon about getting new phones in 2014, Pingeon said.

"Life in prison is hard for anyone, and it's unbelievably difficult for someone who is deaf," Pingeon said. "It's like if you're in a foreign country, and you don't speak the language and nobody speaks your language, and you're just wandering around — you're pretty hopeless."

When investigating Briggs' request, Pingeon found that deaf or hard-of-hearing inmates weren't being accommodated in many ways.

For instance, deaf inmates couldn't participate in Massachusetts prison enrichment programs, since there was no interpreter. It also was nearly impossible for the 80-year-old Briggs to communicate with many people inside the prison, including with prison doctors about his medical treatment.

"It was not a very productive or effective form of communication," Pingeon said. "They might scribble notes, or I think he had a friend who he had taught a little bit of sign language to, and so sometimes they would let him bring that friend. So, medical interpretation was a big issue."

Lisa Pirozzolo, WilmerHale's intellectual property litigation co-chair who helped represent the inmates, told Law360 that the DOC's main argument against installing comprehensive alarm systems was that construction was cost-prohibitive. Pirozzolo was one of over a dozen WilmerHale attorneys who volunteered time to assist on the case.

The two-month trial took extensive preparation, Pingeon said, as the team had to identify and hire interpreters to help prepare witness testimony and map out how asking questions through interpreters would work.

One witness, who was both hearing impaired and had a remedial understanding of English, needed the help of both a certified deaf interpreter and an American Sign Language interpreter to fully understand what was being asked, Pingeon said.

"The certified deaf interpreter, whose goal it is to be able to communicate with somebody like our client, whose English isn't that good and doesn't really understand the normal grammar, they can interpret the regular ASL symbols in a way that's intelligible to the witness," Pingeon said. "The witness would answer the question, the certified deaf interpreter would take that answer, translate it to the regular ASL interpreter, who would then give the answer. It was very complicated."

At trial, Pirozzolo said she felt it was important to have inmates testify about the challenges associated with their individual hearing loss "to have evidence of the lived experience."

"Some had to explain, even though they wear hearing aids, they have to take out the hearing aids at times. All those details I think were important to really not have this just be an abstract argument," she said.

Despite the extensive work to prepare witness testimony, Pirozzolo said that most of the case was centered on documents, including the DOC's own records regarding its efforts to properly accommodate hearing-impaired prisoners.

For example, the team presented grievances prisoners had filed with the DOC, which the department forwarded to the state's Commission for the Deaf and Hard of Hearing for review. While the commission recommended that visual alarms be made available, the department instead implemented a policy where people with hearing impairments were marked with a red dot on prison rosters.

"The idea was that, that way, the guards could recognize who might have hearing impairments and who might need assistance to get out," Pirozzolo said.

Pingeon called the DOC's evacuation system "clearly defective."

"What was supposed to happen under their system was, everyone would evacuate, they would do a count of all the people outside the building and then if somebody was missing, they would go back in the building and try to find them," Pingeon said. "We didn't think that was likely to happen if the building was actually burning up."

The team and inmates have until July 15 to review and comment on the DOC's emergency notification plan. Pingeon said it was uncertain what the agency would propose, considering it previously rejected their cost-effective suggestion that hearing-impaired inmates be contained in a single facility — a technique known as clustering.

"The DOC's defense in this case is, 'Well, what you're asking is for us to put a visual alarm in every single cell in the whole prison system, and that would cost millions,'" Pingeon said. "Our position was, 'No, that's not what we're asking for. You can put the alarms where the people are.'"

Pirozzolo said she was hopeful the DOC would come up with a practical solution, but any disagreements the two sides are unable to resolve will be referred to a magistrate judge, Pirozzolo said.

"There's a lot of technology out there that is available and is sophisticated," Pirozzolo said. "I'm cautiously optimistic that the DOC will have a good proposal, and I'm happy that we'll have the right to comment on it after we receive it."

Pingeon said having WilmerHale assist on the case was "really terrific," and praised the firm for quickly staffing the team with lawyers, support staff and experts. The WilmerHale team also had impeccable trial technology, Pingeon said, complete with digital display technology.

"They've been really incredible. They've given millions of dollars worth of attorneys' time and a lot of out-of-pocket expenses for experts too," Pingeon said. "They gave this case the same level of resources [as] if they were representing Apple or Google, so I've been very pleased about working with them."

Pingeon previously worked with a team of WilmerHale attorneys to successfully challenge a Massachusetts law that allowed women who were civilly committed for substance abuse disorders to be sent to prison.

For Pirozzolo, she said that prisoners' rights litigation was work she'd long had a passion for.

"I really like doing this work, for a lot of different reasons," Pirozzolo said. "Number one, I think it's important for the firm to bring its talents to these important issues. Number two, it's great experience for all of us, including our more junior lawyers."

For Pirozzolo, getting to know some of the class members had opened her eyes to the importance of providing equitable access to those with disabilities.

"The Massachusetts prison population is aging, and so we have a lot of people, even people who have long sentences, who are going to become hearing impaired or enter the system with hearing impairment," Pirozzolo said. "I think it's really important ... to make sure these people are receiving the services they're entitled to, to be safe."

--Editing by Jay Jackson Jr.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

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