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U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. BOX 66118 Washington, D.C.

20035-6118 JAN 23 1995 XX XX XX RE: Complaint Number XX Dear Mr. XX This letter constitutes our Letter of Findings with respect to the complaint you filed on behalf of Mr. XX with the Department of Justice, Civil Rights Division, Coordination and Review Section, alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA). Title II prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. Specifically, you allege that Mr. XX was denied entry into the Enhanced Community Diversion Program (Community Corrections Program) by the Gratoit County Circuit Court because of his disability. The Coordination and Review Section has completed its investigation of your complaint. We have determined that the Court, in following the procedures for administering the Community Corrections Program, did not discriminate against Mr. XX on the basis of his disability. Legal Standards The Department of Justice Title II implementing regulation states that no qualified individual with a disability shall, on the basis of 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 public

entity. 28 C.F.R. 35.130(a) A public entity cannot use 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, 01-00251

-2program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity. 28 C.F.R. 35.130(b)(8) Evidence Mr. XX , who has a learning disability and an emotional impairment, was convicted of his third offense for driving while intoxicated. He was sentenced to a year in jail in January 1993. You stated that Mr. XX court-appointed lawyer told you that Mr. XX could be assigned to the Office of Community Corrections for alternative sentencing, but that Judge Martlew instead sentenced him to one year in jail. At the time, it appears that Judge Martlew would not refer anyone who had been convicted of a third offense of driving while intoxicated to the Office of Community Corrections. According to the Office of Community Corrections for Gratiot County, in the same time period during which Mr. was sentenced, there were six other persons convicted of a third offense for driving while intoxicated, all of whom were sentenced to a jail term. The Michigan Department of Corrections administers the Community Corrections Program. Under this program, offenders who meet the eligibility criteria are allowed to participate in jail alternative programs at the discretion of the sentencing judge. Only judges are allowed to place an offender in a Community Corrections Program. The local board for the Office of Community Corrections set the eligibility criteria for participation in the Community Corrections Program. These criteria did not exclude offenders with mental disabilities. Ms. Jill Robinson, Office Manager, Office of Community Corrections in Gratiot County, stated that persons with mental disabilities are allowed to participate in

the program. She further stated that during 1993, offenders with mental disabilities, including mental retardation, were placed in jobs by the Office of Community Corrections. The Office of Community Corrections sent us records of one person with a mental disability who was placed in the Community Corrections Program during the same period in which Mr. XX was sentenced. It is not mandatory for judges to follow the guidelines set by the local board for Community Corrections. The previous sentencing judge did not exclude persons with a third offense for driving while intoxicated from participating in the Community Corrections Program. However, newly-elected Judge Martlew consistently exercised his discretion to exclude persons convicted of a third offense for driving while intoxicated from participating in the Community Corrections Program during the time in question. 01-00252 -3While in jail, an offender who meets the eligibility criteria of the Community Corrections Program may re-petition the sentencing judge to place him in the Community Corrections Program. Mr. XX did not re-petition the judge, although you did request that the judge reconsider Mr. XX sentence. However, the judge would not reconsider Mr. XX sentence. Analysis and Conclusions We have concluded that the Gratiot County Circuit Court did not discriminate against Mr. XX on the basis of his mental disability by not assigning him to the Office for Community Corrections for alternative sentencing. Persons with mental disabilities were eligible and did participate in the community Corrections Program. The preponderance of the evidence indicates that Mr. XX was denied participation in the Community Corrections Program by the sentencing judge (Judge Martlew) because he was convicted of a third offense for driving while intoxicated and not because of his mental disability. Judge Martlew consistently exercised his discretion to exclude such individuals from the Community Corrections Program. If you or Mr. XX are dissatisfied with our determination, Mr. XX may file a private complaint in the

appropriate United States District Court under Title II of the ADA. You and Mr. XX should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, 5 U.S.C. 552, it may be necessary to release this document and related correspondence and records upon request. However, if such a request is made, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy.

01-00253 -4If you have any questions concerning this letter, please feel free to call Linda King at (202) 307-2231. Sincerely, Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division cc: The Honorable Jeffrey L. Martlew

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