by Elliot Oberholtzer, August 23, 2017
In a recent post, I noted that disabled people1 are significantly overrepresented in prisons and jails. This statistic is part of a larger pattern: disabled people are overrepresented in all interactions with the criminal justice system, and at all points, that system is failing them.
The Center for American Progress released a report last year that provides a strong overview of the ways that disabled people are targeted by — and failed by — the criminal justice system, from policing to courts to incarceration. In this article, I will bring in additional information and context to elaborate on the points made in that report.
Police escalate to deadly force
Disabled people represent a disproportionate number of those stopped, arrested, and murdered by police. This is partially because, as the ACLU of Southern California and the Bazelon Center for Mental Health Law report, the “war on drugs” and other mass incarceration policies criminalize behaviors related to disability: substance use (which is often a method of self-medication for pain and other symptoms), homelessness (as of 2015, the Department of Housing and Urban Development estimated that 78% of people in shelters had a disability), and atypical reactions to social cues (which may be interpreted as “disorderly conduct”). Societal attitudes towards disabled people, and the intersections of disability, race, and class, contribute to their criminalization: the Ruderman Foundation reports that in police use-of-force incidents, media and police often blame disabled people for their own victimization, especially by characterizing disabled people of color as “threatening” and “refusing to comply” with instructions.
The police are often the first responders to a person in crisis. In 2015, the Washington Post reported that 124 cases of officer shootings (27% of all officer shootings that year) involved a mental health crisis; in 36% of those cases, the officers were explicitly called to help the person get medical treatment, and shot them instead. Despite their frequent role in mental health crises, police response is deeply inadequate, and experts agree that not only do police need better training, but their role in crisis response needs to be entirely reconsidered.
As long as we continue to rely on militarized police forces to handle crises, instead of social workers, mental health response teams, and other trained professionals, police will continue to escalate situations to deadly force. And disabled people, specifically disabled people of color, will continue to lose their lives.
Courts refuse accommodations
If disabled people survive their encounter with the police, they are also disadvantaged by the court system. Disabled people struggle to access the services necessary to make the court system intelligible to them: in 2014, a Deaf man whose first language was Ethiopian Sign Language was denied an interpreter in his court cases and in jail, leading to six weeks of jail time for a crime he did not commit (Washington Post). This incident is by no means unique: the Center for American Progress reports that “a lack of accessibility and a failure to provide needed accommodations are widespread throughout the nation’s courts.”
Given the data showing that disabled people experience violent victimization at significantly higher rates than non-disabled people, the failure of accessibility in our courts is not only a concern for disabled people charged with crimes, but also for disabled people who want to use the courts to address offenses against them. A 2015 survey of New York City courts found multiple barriers to equal participation for disabled litigants, jurors, attorneys, and court employees, as well as criminal defendants. And as the Supreme Court observed in 2004, “failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion.”
There is also evidence to suggest that the court system may not be the right way to handle the majority of disabled people’s offenses at all. Alternatives such as mental health courts, which include access to mental health care before appearing in court, have been shown in California to improve quality of life, decrease psychological distress, and reduce recidivism among mentally ill offenders when compared to traditional courts. Similarly, Portugal’s “dissuasion commission” model of handling drug possession/consumption offenses, which involves a case team of health, social service, and legal professionals who work together to provide addiction counseling and assess treatment options, has been shown to significantly reduce substance dependency, risky behaviors such as injection (which can lead to transmission of HIV/AIDS), and substance-related deaths.
For those disabled people who do need to interact with the courts, they deserve the treatment that the United States has committed to providing in the Bill of Rights: a speedy trial, legal representation, and to be informed of the nature and causes of the accusations against them. When courts fail to provide these basic rights for disabled people accused of crimes, they demonstrate clearly that our society treats disabled people as second-class citizens.
Jails function as inadequate hospitals
When disabled people are detained in jails awaiting trial or transfer to a medical facility, they are denied access to medical care, which can worsen existing health problems (including mental health crises). This can be life-threatening or even fatal: the top cause of death in local jails is suicide, which occurs in jail at much higher rates than in the general U.S. population. In 2016, Public Citizen and the Treatment Advocacy Center reported that 91% of surveyed jail personnel said that they had seriously mentally ill prisoners who required a suicide watch.
Although jails are being used as substitutes for mental health facilities, they do not have the resources or training to handle medical and mental health emergencies. Less than half (45%) of the surveyed personnel in the Public Citizen and Treatment Advocacy Center study reported that their jail was equipped to offer mental health treatment. When asked what their resources were to handle a psychiatric emergency, respondents said they had none, or that they transported prisoners to the emergency room. Despite 95% of respondents reporting that their jails frequently housed mentally ill people, only 21% reported their jail having any kind of program to support mentally ill people upon their release.
Our justice system currently incarcerates, mostly in local jails, large numbers of people who have not been convicted — or sometimes even charged — with a crime. Pretrial incarceration, which almost universally affects those who cannot afford to pay bail, has been shown to increase the likelihood of conviction regardless of the merits of the particular case; a clear undermining of the concept of a fair trial. And many disabled people housed in local jails (and experiencing the trauma of that incarceration) are not even awaiting trial; they are simply awaiting a transfer to an overcrowded hospital or other health facility. Currently the systems of pretrial incarceration and using jails as holding cells for hospital transfer are inflicting damage on disabled people, who need targeted services instead.
Prisons abuse and isolate their disabled populations
Disabled people are also disproportionately incarcerated in state and federal prisons. According to the Center for American Progress, people in state and federal prisons are three times more likely than the general population to report having at least one disability. In a 2012 Bureau of Justice Statistics report, 40% of state and federal prisoners reported currently having a chronic illness, a significantly higher rate than the general population. (While not everyone with a chronic illness considers themself disabled, many chronic illnesses cause serious inabilities to complete necessary tasks; for example, about 44% of people with arthritis report that it limits their ability to do things like climb a flight of stairs, bend over, or grasp small objects).
Medical care for these conditions is inconsistent: while two-thirds of participants in the BJS study were being treated, 11% reported that their illness was not being treated because the facility would not provide medication. The Amplifying Voices of Inmates with Disabilities (AVID) Prison Project reports cases of prisons ruling accommodations such as exercise equipment, specialized diets, prosthetics, wheelchairs, and other assistive technology no longer “medically necessary” for disabled people in an effort to cut costs. And with medical co-pays costing as much as a month’s worth of labor in some states, including states where prosthetics and other accommodations for disability incur an additional fee on top of an existing co-pay, many disabled people in prisons simply cannot afford to access the care they need.
Denying medical care is not the only abuse of disabled people in prison. Human Rights Watch suggests that use of force abuses against disabled people in prisons is “widespread and may be increasing”. The AVID Prison Project reports that disabled people in prison, particularly those with mental illnesses, are disproportionately disciplined with segregation and solitary confinement, which have been linked to suicide, self-harm, and other serious mental health consequences. Incarcerated people are a particularly vulnerable population to malpractice and abuse of authority: they have little or no ability to leave a bad situation or demand better treatment. Already in a position of deeply unequal power simply by being incarcerated, disabled people in prison are then further disadvantaged by systemic ableism.
Inadequate re-entry support undermines opportunities
The AVID Prison Project also reports that disabled people are often denied access to vocational and release planning programs while incarcerated, or placed in programs without accommodations for their disabilities. “The way it is now, I’m just basically going back out there with no skills,” said one man from Washington with a visual impairment; his facility had placed him in a community college course without giving him the visual aids he needed to keep up with the class. Another person reported that they had asked for information on how to apply for Social Security benefits once released, and been denied because their counselor thought they should seek employment instead.
Incarcerated people already face significant barriers upon re-entering society, including housing restrictions, employment discrimination, and ongoing fines and fees that represent a significant financial burden. When those difficulties are compounded by disability — especially if that disability has been worsened by neglect and abuse while incarcerated — a disabled person attempting to re-enter society after a prison stay faces almost insurmountable obstacles.
At every interaction between disabled people and the criminal justice system, it is evident how ill-suited the system is to respect disabled people’s needs. Along with widespread reform of our courts and institutions, we need to shift from viewing disabled people in crisis through a criminalization and incarceration lens to a community health approach.
A note about language
- This article uses “disabled person/people” as the term of choice, sometimes called identity-first language. I respect the right of any person to choose how they want to be referred to, but when speaking about disabled people as a broad category, I have decided to adhere to the social model of disability, acknowledging that disabled people are disabled by societal ableism, and that their bodies and abilities are not inherently less. ↩