Writer: Laura Garling
Editor: Kyra McKeska
Spring 2022
Making our environment a more accessible place not only helps people who are disabled but it also benefits society as a whole. When people think of what a disability is or means, a few examples usually come to mind. For instance, people might think of blindness, deafness, mobility impairments, mental illnesses, and more. However, it is essential to remember that the idea of being disabled exists because our environment was not built to be accessible. For instance, imagine a world where everyone was fluent in and used sign language, and the media always used subtitles. It is possible that if that were true, d/Deaf people may not be considered disabled as they would be able to communicate with others easily. In 1983, Mike Oliver coined this idea the "social model of disability" (Shakespeare, 2010). The social model of disability states that disability is "socially constructed" – not an objective fact but created through shared human interactions (Middlemass, 2017; Bainbridge, 2020). In other words, it is people's environments that render them disabled. However, they are not inherently disabled.
According to the Bureau of Justice Statistics, "Nearly 2 in 5 (38%) of state and federal prisoners had at least one disability in 2016" (Maruschak et al., 2021). It is essential to recognize that there are perhaps even more as "due to stigma, some inmates conceal their conditions," or their conditions may not be recorded as they do not fall into specific reported categories. In addition, some conditions may be concealed by drug use (Parry, 2009). These issues of ableism, inaccessible environments or systems, and the incarceration of people with disabilities are often interwoven. Through analyzing the history of the rights of people with disabilities and talking about how prisons in and of themselves are disabling, as shown through the court cases of Ray-Cluney v. Ourada, Reed v. Ourada, and Bailey v. Wienandt, we can see how desperate this situation truly is.
John Parry, J.D., a prominent writer for the American Bar Association's Commission on Mental and Physical Disability Law, contends that after the emergence of insanity/diminished culpability and mitigation defenses, the focus turned towards people in mental institutions. In 1956, 559,000 patients were incarcerated in state and local public mental hospitals that, at the time, were called "snake pits" and "human warehouses" because of the diminished fundamental human rights in these institutions (Parry, 2019; Ben-Moshe, 2020). In the 1950s, the fact that these institutions committed crimes against humanity was demonstrated in court. It was decided that these institutions could not be reformed, so there was no choice but to close them. Justice Potter Stewart in O'Connor v. Donaldson "established the right of non-dangerous mentally ill individuals to live in the community," which "opened the floodgates for community-based care" (Parry, 2019).
However, providing quality community-based care requires that the government invest time and money. Parry reports that our society is "unwilling" to provide the necessary resources "to ensure that persons with mental disabilities were placed in decent living conditions and received proper support services with humane care and treatment" (Parry, 2019). Here, we see how our society treats disabled people is what makes them disabled. With proper care and support, many people could be saved from incarceration.
Eventually, limited rights of people in correctional institutions emerged. First, Wyatt v. Stickney established the right to treatment, which states that incarcerated people must "receive individual treatment that gives them the most realistic opportunity to be cured or improved" (Parry, 2019). The emergence of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) created "federal laws that protect people with disabilities from discrimination based on disability" (Equip for Equality, 2016). Under these Acts, specifically Section 504 and Title II of the ADA, it is required that jails and prisons "take reasonable steps to give prisoners with disabilities equal access to the programs, services, and benefits of the correctional center." The ADA and Section 504 apply if all of the following are met: "you have a disability within the meaning of the law, you are otherwise qualified for the program, service or benefit, because of your disability you have been excluded or denied," and, to be covered under Section 504, the program that is discriminating against you must receive federal funding (Equip for Equality, 2016). It is important to note here that the way ADA defines disability is as a "physical or mental impairment that substantially limits one or more major life activities." A notable example was in 2013 when the U.S. Department of Justice found that "the Pennsylvania prison system violated the ADA for its use of solitary confinement for prisoners with serious mental illnesses" (Equip for Equality, 2016). Here, we can begin to see how the building up of the rights of disabled people created a framework through which change can be made within carceral institutions.
As suggested earlier, "people with disabilities are thus dramatically overrepresented in the nation's prisons and jails today." In fact, "The Bureau of Justice Statistics reports that 1 in 5 prison inmates have a serious mental illness," not to mention those with physical disabilities and those that slip through the cracks of data collection. Moreover, it is no secret that people with disabilities are "often deprived of necessary medical care, as well as needed support, services, and accommodations," despite all federal and state protections (Vallas, 2016). These poor conditions exacerbate existing conditions and, in some cases, create disabilities. Keesha Middlemass, an Assistant Professor at Howard University who conducted ethnographic research on prison reentry in 2017, found startling information concerning the disabling effects of having a criminal record, such as a loss of comfort speaking to others. Liat Ben-Moshe, an activist-scholar-educator-researcher working at the intersection of incarceration, decarceration, abolition, and disability/madness, lists the many ways incarceration opens up the possibility of becoming disabled. Her examples include: "the sheer trauma of incarceration in enclosed, tight spaces with poor air quality and circulation; ... to the circulation of drugs and unsanitary needles as well as the spread of infectious disease, ... to lack of medical equipment and medication, or at times overmedication" (Ben-Moshe, 2020).
A prime example of the disabling effects of carceral environments is shown through how COVID-19 has and continues to rage throughout institutions of incarceration. The COVID Prison Project reports that as of February 23, 2022, there have been "575,916 COVID-19 cases among people incarcerated in prisons" and "2,844 Deaths of incarcerated individuals in prisons due to COVID-19" (2022). Wendy Sawyer and Peter Wagner of the Prison Policy Initiative in 2020 estimated that the "American criminal justice system holds almost 2.3 million people." While it is difficult to quantify precisely, as some individuals may have contracted COVID-19 outside of incarceration, it is clear that there is a massive problem with the spreading of COVID-19 in carceral institutions. The long-term health effects of this are, at this time, unknown, and thus, the disabling effects are also unknown. The number of people who have lost their lives because of the spread of COVID-19 within prisons goes well beyond a gained disability.
As we continue to see, despite the federal and state protections for people with disabilities, carceral institutions continue to disable people or fail to protect those who are disabled. This can be shown through the court cases of Ray-Cluney v. Ourada, Reed v. Ourada, and Bailey v. Wienandt. The three plaintiffs in these cases, Paige Ray-Cluney, Laura Reed, and Jacob Bailey, "alleged abuse while they were held at the Lincoln Hills School for Boys" or the "Copper Lake School for Girls." In these cases, the plaintiffs became disabled through the development of mental illnesses while incarcerated. Bailey, awarded $875,000, was sent to Lincoln Hills at 16 with prior mental health issues. After an incident where he became disruptive, his wrist was broken, for which he did not receive medical care for a week, and his clothing and bedding were withheld for 5 hours. Ray-Cluney, awarded $1.95 million, was sent to Copper Lake at age 16 in 2015, where she was "subjected to isolation for a cumulative total of five months while there." Kevin Bliss reports, "She did not have suicidal tendencies before arriving at Copper Lake, but afterward attempted suicide several times, for which she received more time in segregation." Reed, also 16 when sent to Copper Lake, awarded $1.95 million, spent two months in isolation. She was physically abused by guards and attempted suicide while in custody, something she had never done or thought of attempting before arriving at Copper Lake. Reed and Ray-Cluney's lawyer, John Sandy, J.D., stated that "their severe isolation caused PTSD, depression," and suicidal ideation (Bliss, 2020). This is a direct example of how carceral institutions continue to disable people.
Liat Ben-Moshe and others urge us to adopt a "crip of color critique," a term coined by Jina Kim, to help frame how we can work toward solving these issues. Please note that using the word "crip," in this context, is a conscious act of empowerment by people with disabilities through reclaiming a former slur as a badge of pride. "Crip of color critique," based o of Cathy Choen, Dean Spade, and others' idea of a "queer of color critique," urges us to question "traditional white liberal approaches to social problems that call for measures such as legislation or incorporation within the system" (Ben-Moshe et al., 2022). It is proposed that legal protections and rights are not successful in changing the status quo, as shown by the abuse and the denial of human rights of incarcerated people. Thus, it is time we ask ourselves how we can do better and critique our chosen avenues of change as law professionals (of the present and future), activists, and citizens. Making our communities safer and more accessible does not just help those in need; it helps everyone.
As shown through an analysis of the movement of rights for disabled people in conjunction with how these regulations play out (often still harming incarcerated people) in carceral institutions, the room is abundant for improvement. To change the status quo, we need to think critically about how we work toward change in this area, and as Liat Ben-Moshe urges, listen to the "crip of color critique." It is one's environment that socially disables people, and the environment can change. Let us listen to people with disabilities about improving our institutions and utilizing our privilege to help make meaningful changes.
References
Bainbridge, C., 2020. Why People Make Social Constructs and How ey Can Change.
[online] Verywell Mind. Available at: <https://www.verywellmind.com/definition-of-social-construct-1448922> [Accessed 25 February 2022].
Ben-Moshe, L., 2020. ABOUT. [online] Liat Ben-Moshe. Available at:
<https://www.liatbenmoshe.com/> [Accessed 25 February 2022].
Ben-Moshe, L., 2020. Decarcerating disability : deinstitutionalization and prison
abolition. [ebook] Minneapolis: University of Minnesota Press, pp.1-36, 229-268. Available at: <https://muse-jhu-edu.ezproxy.library.wisc.edu/book/75175> [Accessed 25 February 2022].
Ben-Moshe, L., Erevelles, N. and Meiners, E., 2022. Abolishing innocence :
disrupting the racist / ableist pathologies of childhood. In: C. Taylor and K. Struthers Montford, ed., Building abolition : decarceration and social justice. New York, NY: Routledge, Taylor & Francis Group.
Bliss, K., 2020. Wisconsin Pays Another $5 Million for Abuse at Controversial Juvenile
Facility | Prison Legal News. [online] Prison Legal News. Available at: <https://www.prisonlegalnews.org/news/2020/jan/9/wisconsin-pays-another-5- million-abuse-controversial-juvenile-facility/> [Accessed 25 February 2022].
COVID Prison Project. 2022. Home - COVID Prison Project. [online] Available at:
<https://covidprisonproject.com/> [Accessed 25 February 2022].
Maruschak, L., Bronson, J. and Alper, M., 2021. Disabilities Reported by Prisoners:
Survey of Prison Inmates, 2016. [online] Bureau of Justice Statistics. Available at: <https://bjs.ojp.gov/library/publications/disabilities-reported-prisoners-survey -prison-inmates-2016> [Accessed 25 February 2022].
Middlemass, K., 2017. Convicted and Condemned: e Politics and Policies of Prisoner
Reentry. New York: NYU Press, pp.1-20.
Parry, J., 2009. Criminal Mental Health and Disability Law, Evidence and Testimony :
a Comprehensive Reference Manual for Lawyers, Judges, and Criminal Justice Professionals. Chicago, Ill.: ABA, Commission on Mental and Physical Disability Law, Criminal Justice Section.
Sawyer, W. and Wagner, P., 2020. Mass Incarceration: e Whole Pie 2020. [online]
Prison Policy Initiative. Available at: <https://www.prisonpolicy.org/reports/pie2020.html> [Accessed 25 February 2022].
Shakespeare, T., 2010. The Social Model of Disability. In: L. Davis, ed., e Disability
Studies Reader. New York, NY: Routledge, Taylor & Francis Group. Available at: <http://thedigitalcommons.org/docs/shakespeare_social-model-of-disability.pd f> [Pre-print copy].
2016. e Americans With Disabilities Act In Jail & Prison. [ebook] Equip for Equality.
Available at: <https://www.equipforequality.org/wp-content/uploads/2016/04/Prisoner-Right s-Under-the-ADA.pdf> [Accessed 25 February 2022].
Vallas, R., 2016. Disabled Behind Bars: e Mass Incarceration of People With
Disabilities in America’s Jails and Prisons. [online] CAP. Available at: <https://www.americanprogress.org/article/disabled-behind-bars/> [Accessed 25 February 2022].
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