The Criminalization of Disability: Exploring Intersectionality and Justice

This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

SANHO STEELE-LOUCHART: Welcome to our panelists. Anyway. So that being said, this plenary is the Criminalization of Disability. Specifically we are exploring intersectionality and justice.

Thank you for agreeing to or being -- yeah, agreeing to go ahead and do that workshop because of how much interest we have.

SANHO STEELE-LOUCHART: Jamelia Morgan, who is the faculty director of the Northwestern Law Center for Racial and Disability Justice. We have Kate Caldwell, who is the director of research and policy at the Northwestern Law Center for Racial and Disability Justice and then finally we have Cory Bernstein, who is an attorney with the National Disability Rights Network.

Thank you all so much.

(Applause)

JAMELIA MORGAN: Good afternoon, everyone. Just a quick access note we have slides for today and I just wanted to make sure that they are available to our online community.

Thank you all for allowing us to talk about our work.

My name is Jamelia Morgan, I use she/her pronouns. Today I'm wearing an orange blazer and khaki pants.

I have a curly weave in, for those that know, you know. I'm wearing my white glasses, and I am absolutely honored to be in this space.

When I first started doing this work several years ago, tenBroek was one of the first disability rights and justice spaces I was invited to participate in. So many of you have influenced my work, and it's always an honor to be in tenBroek's legacy.

We're going to talk about the criminalization of disability today.

The topic is heavy.

It's coming after lunch. It's coming in a moment of crisis and I know that there's a lot on everyone's mind, so I do want to issue content warnings.

We're going to discuss at a high level of detail police violence, abuse by medical professionals, schools, and administrators and experiences with homelessness. And so use the space as needed to respond to some of the difficult content.

I'm going to introduce the concept, and turn it over to my esteemed colleagues to dive deep into some of the key issues.

Disability criminalization occurs when individuals are exposed to criminal legal system involvement, whether via stops, arrests, detention, discipline, and/or punishment.

For engaging in behaviors, norms, and conduct, linked to or caused by their disabilities. Arrests, prosecution, and punishment can occur when behaviors link to mental, physical, and cognitive, and intellectual and developmental disabilities, literally contribute to the acts that satisfy the element of the crime and in our overly criminalized society, with all talk about how much kinds of crimes that could be, or where the behaviors provide a basis for suspicion.

Criminal suspicion, justifying things like a police stop.

Although there is no systematic data on the number of cases where disability-related behaviors lead to criminal legal system involvement, we're going to be cobbling together some of the data sources in our remarks, the fact of this criminalization is reflected in disabled people's disproportionate exposure to police violence and their heightened risk of death during encounters with police.

The existence of disability criminalization is also reflected in the disproportionate percentages of disabled people held in prisons and jails across America.

While incarcerated individuals with disabilities often face barriers to accessing quality and appropriate and timely mental and medical healthcare.

Indeed the fact that we can say care is even possible to be a subject of social provision behind carceral cages, is definitely a paradox.

When denied access to medical and mental healthcare incarcerated people with disabilities face charges stemming from behaviors and action in conduct again linked to that lack of medical and mental healthcare.

Children with disabilities have been arrested, prosecuted and punished for behaviors linked to their disabilities. Children with disabilities particularly as we know, disabled children of color are disproportionately more likely to face restraint, suspension, expulsion, other punitive sanctions often behaviors linked to their disabilities.

Taken together we submit these practices are part of a broader constellation of law, policies, and practices that contribute to what is known as the criminalization of disability. We're going to be talking about different aspects of this system, including quality of life policing, crisis policing, and the like.

Our panel seeks to engage in an expensive exploration of how disability is criminalized focusing on the intersection of disability and the criminal-legal system as well as of course our self commitment regimes. So with that framing, I would like to turn it over to Jordyn Jensen, our executive director, to talk about some of the sociolegal frameworks that we're using to conceptualize what we mean when we say the criminalization of disability.

JORDYN JENSEN: Thank you, Jamelia. Do you mind going to the next slide? Thank you.

All right. So this slide first I'll give a quick image description.

My name is Jordyn Jensen, I'm a white woman with brownish hair, pulled back in a bun.

Similar to Jamelia, also wearing clear whitish glasses.

I'm wearing a black turtle neck and a -- I don't know what color this is -- tan blazer with stripes. So this slide, the title says Disability Criminalization and includes a brief definition of disability criminalization which I'll briefly explain but I also want to note that Jamelia did a great job of explaining the concept what it means and also what we'll be talking about in this session today.

So to add on a little better summarize what Jamelia stated, the criminalization of disability refers to the ways that disabled individuals, especially those who are multiply marginalized, such as people of color, are disproportionately targeted, surveilled, policed, incarcerated and killed, often at the hands of law enforcement.

This criminalization is rooted in and reinforced by laws and policies that disproportionately target disabled people.

And while it frequently manifests in direct encounters with law enforcement, disability criminalization also extends into broader institutional systems, such as education, healthcare, and housing. So at the bottom of this slide, it also includes three pie charts that present some key statistics.

So the first on the left-hand side reads that disabled people have -- it says I think 44% on there, but that should be 43%, likelihood of being arrested by age 28, which is higher than people without disabilities, which is at around 30%. This is represented by a light and dark red pie chart, and this statistic is from 2017.

The next statistic in the middle states that the probability rises to 55%. So that jumps significantly for Black disabled people who have a particularly high risk of being arrested by age 28. And this is represented on the slide by a light and dark blue pie chart from the same source as the previous statistic.

And then the third statistic on there, on the right-hand side, states that up to 50% of people killed by police are disabled. And this is represented by a light and dark yellow pie chart. It's from Perry and Carter-Long 2016 from a Ruderman Family Foundation paper. So ultimately these alarming statistics reveal how disability is often misinterpreted as deviants, defiance, aggression or threats, this is especially true when thinking about intersecting identities such as race, class, and gender.

Disabled individuals, particularly Black disabled people, are disproportionately subjected to surveillance, policing and violence and these outcomes are not isolated incidences. They reflect systemic failures in law enforcement, social services and public policy, where disability-related behaviors are too often treated as criminal rather than as a need for care and support.

And this, I want to highlight Jamelia's work in particular. Her paper on disorderly conduct, which really dives deep into these issues. So this slide presents a 4-cool model that explains the layers of disability criminalization. Each column includes a headings, a brief description, and a "think of" section.

So I'm going to briefly walk through and explain each level, but my colleagues, I want to note that my colleagues later in this session are going to provide further detail into the ways that disability is criminalized. So the first on the left-hand side, the first column reads: Cultural attitudes.

And this describes briefs, traditions, and norms that shape how disability is understood. And examples include stigma; spiritual or religious beliefs; traditional values and historical legacies.

The second column reads "social systems" and this refers to how institutions such as schools, healthcare systems, the legal system, et cetera, can perpetuate exclusion.

Practices like segregated education, inadequate healthcare access, and economic barriers increase disabled individuals' vulnerability to criminalization.

The third column there reads "systemic responses. " So for instance, policing strategies, institutionalization, and exclusionary policies reflect societal attitudes that particularly target disabled people. So for instance, mental health crises which we'll talk about further later are often treated as criminal matters rather than public health concerns, increasing the risk of incarceration, detainment, et cetera.

And then the last column there, which I know it's cut off a little bit, but it says, "criminalization outcomes," and this refers to how systemic failures result in further marginalization disproportionate incarceration rates, and systemic inequities that reinforce cycles of exclusion and punishment.

So lastly, bear with me, I'm almost done speaking, I just want to talk about just quickly how this extends beyond the criminal justice system. So while the criminal justice system is a primary site of disability criminalization, this process extends into other institutions.

So policies on housing, healthcare, social services, education beyond can effectively criminalize disabled people by denying access to resources, forcing individuals into institutional settings. Or even placing punitive restrictions on things like benefits. So the last thing actually, one more thing to say, and then I will pass it on.

But I just want to state that understanding the criminalization of disability truly requires acknowledging the systemic inequities that fuel this process. So just to reiterate kind of what Jamelia spoke about earlier, what I just talked about, disabled people are often viewed as social threats rather than individuals in need of care and support and dignity.

So by examining things like cultural attitudes, institutional practices, and systemic responses, we can work to better understand and dismantle the conditions that criminalize disability.

ATTENDEE: Is this mic on? Hopefully I'm not too loud. I want to pick up where Jordyn left off. I'll start us off on a discussion that Cory and Kate will join me in on thinking about the sites of criminalization.

We can add to this list in the workshop we want to engage with you all to think more about this framing.

Any discussion, of course, on disability criminalization should start with disability incarcerated to harken to Liat Ben-Moshe and the important 2014 book.

I'm going to talk a lot about some of the data to make sure we're all on the same page, it's kind of what I have to do as an academic, but I don't want us to only think about the disparities. I want us to think beyond disparities and towards an examination of how the law constructs and contributes to individualized and structural forms of ableism that create now the disparities that we see in carceral spaces.

All right. So let's start with the disability incarceration frame and I'm going to work back to crisis policing and quality of life policing. So the prison policy initiative highlights how U.S. prisons and jails incarcerate a disproportionate number of people with past or current, in the terms of their study, quote unquote mental health challenges.

Noting that police responses to mental health crises quote frequently result in violence or incarceration. Their words, not mine.

43% of people in state prisons have been diagnosed with a, quote, mental disorder, 44% of people have been diagnosed within any one of our locally run jails. One-quarter of people experiencing quote serious psychological distress are in our jails.

I'm quoting these terms, because they go to the underlying studies which I'm happy to report we know within our field, there are a variety of definitions of disability and disability-related impairments, and I think Kate's work on this really helps think critically about how we define disability and how we track it.

The most recent study by the DOJ bureau of justice statistics found that 27% of incarcerated people have a disability. So we know from reports of incarcerated people the amazing work that happens from legal workers, lawyers in this room and beyond that incarceration inflicts grievous harms on individuals including individuals with disabilities. It produces disabilities. It exacerbates disabilities.

Prison and jail officials also routinely fail to provide them with programs and activities of the this leads to a kind of criminalization in prisons and jails.

The officials failed to provide adequate mental and medical healthcare for people with disabilities, which contributes to rule violations, disciplinary charges, administrative segregation, euphemism for the term that many of us know as solitary confinement, a form of torture.

Collectively again the lack of access to quality care, again we can attest we can provide quality care in the carceral case but we should note that the failure to provide these sorts of services, communication access can contribute to disability criminalization.

The uncomfortable truth and I say this as a criminal law scholar is that we routinely punish individuals, criminalize them, subject them to criminal sanctions for conduct that is linked with or caused by their disability.

I think it's a moral failure and much of my work seeks to destabilize this from criminal theory and doctrine. I want to invite us as a justice community to think about our role as attorneys, legal workers and advocates how we can destabilize this baseline assumption that it is permissible to criminalize on the basis of disability without -- I should note the rare exceptions of course what we know the insanity defense and I call it the ever-shrinking diminished capacity defense that has been eliminated in many states.

There are other laws that criminalize. We can expand the scope beyond cases that make the media that we think about when we talk about disability criminalization, the way that disability becomes an explanation for societal failures to invest in a whole host of social institutions.

Arrests can happen even where of course the individual lacks intent, has engaged in what I would submit are arguably involuntary acts. The arrest might happen, there might not even be an adjudication of guilt.

The process becomes a kind of punishment, or the arrest experience becomes a pathway into police violence.

I want to start with quality-of-life policing.

Quality-of-life policing refers to the enforcement of low-level criminal offenses. They are misdemeanor offenses usually result in less than a year in jail but they have huge disruptive impacts on the lives of people subjected to them.

So why quality-of-life on people with disabilities. You all might be familiar with the Grants Pass decision.

The Supreme Court decided a case that essentially said that jurisdictions can enforce generally applicable law, so laws that apply presumably to everyone without violating the cruel and unusual punishment clause of the 8th amendment.

Essentially, jurisdictions have been using criminal law to regulate public space, to remove and displace people from public spaces. So whether it's a disorderly conduct charge, as I've studied.

A refusal to disperse order or a trespass order or even the threat.

If police come to an encampment that imposes a threat and compels people to move.

We know from important reporting out of UCLA law school and other entities that people with disabilities do comprise a large component of sheltered communities. We know this. There's a connection drawing from a formulation; there's a huge connection between disability and poverty.

And unfortunately, in an affordable housing crisis, jurisdictions are responding with policing instead of trying to tackle the issue of how do we build more housing in some of these western states that are particularly relying on criminal law to remove individuals from public space.

So the housing crisis I submit has prompted a lot of jurisdictions, primarily in the western states but not exclusively so, to increase quality-of-life policing efforts in public spaces.

And importantly to modify civil commitment laws to make it easier to detain, treat, and forcibly treat at that. So again, treat is forcibly treat in this particular context, individuals who, in the Adams policy, the involuntary hospitalization policy, quote unquote appear mentally ill.

The care court formulation in the state of California has a process that starts with treating professionals relatives and the like and particular disability categories entering into the program.

The failure to comply can result in coercive and more punitive interactions with the state.

These are net-widening efforts and under the auspices of care they become a pathway into entanglement with the criminal legal system.

The housing crisis is an intersectional issue.

It's a racial justice issue. Almost a third of sheltered communities in Los Angeles county specifically. Scouring the Internet for more and more data for intersectional question, we know it's a challenge to gather data.

Almost a third identify or report being Black or African-American.

LGBTQ + youth disproportionately experience homelessness compared to cis gender or straight peers with up to 40% of the 4.2 million youth experiencing homelessness in United States of America identify as LGBTQ +. 17% experience homelessness, which is more than twice what we have in the population.

Quality-of-life policing impacts all of us, the kind where you have the neighbor calling in the noise disturbance, the presence of people in front of the building, the presence of debris that they might not have to step over on their way to work, is a more pernicious social function aimed at managing, reducing and eliminating, not only the disorder, the physical disorder.

But disorderly bodies and minds are those framed as such and depicted as such in communities across the country, putting groups that fail to fit the sort of normative standards at risk of arrest, detention, prosecution, and punishment and to harken to important work. I think this becomes another pillar in the building block of the quote unquote policing of disability in public, to refer to an important book on the ugly laws.

We are also seeing jurisdictions responding specifically to the individuals in crisis by designating special criminal laws for the assault on EMT workers.

Now under no set of circumstances am I saying that we should not be concerned for the interests and the safety of our front line EMT staff or nursing professionals or physicians and the like.

But the specific act when they're existing in an overly criminalized society when there's a social problem, the reaction is to create a specific criminal law. There are existing laws for assault.

Why might the is he of Chicago have a specific law for the assault on EMT workers? It was to respond to, again, a community EMT workers who felt underprotected. So in response was a specific action to criminalize arguably on the basis of disability. Because many of the individuals that engage in these unfortunate acts of assault are experiencing crisis.

Resisting arrest and disorderly conduct also fall under that. As someone who has spent hours going through the cases that implicate the cases of disability criminalization, people are engaged in acts of resistance for the purposes of independence, self-determination and autonomy. They don't want to be coerced into a situation they're not comfortable with, particularly in a moment of crisis. This becomes a pathway into crimes . So to shift gear. Many of you are doing incredible work.

I know we're going to have a panel on how to channel police responses more broadly to health response. I won't get too much into the weeds of the strategy, but just to lay the cards on the table for what is particularly happening.

We know that we have failed to invest in a robust behavioral health infrastructure. And so the mental health crisis or the label of crisis, because these can be constructs. Individuals who are resisting intrusions by the state have been labeled as in crisis. And that is a raced, gendered, classed construction.

So few interventions exist to respond to individuals in crisis, which means that ipso facto the police are our first or in some jurisdictions co-responders and a few, Jordyn and folks at the human rights watch and New York lawyers for the public interest are working on a report to look at alternatives to police response. Those do exist.

But by and large we're seeing first response or co-responders in the form of law enforcement, along with social workers, case workers.

Why is criminalization happening again, emphasizing as I have the destructive efficiencies that lead to the reliance on law enforcement and the over reliance on ERs and individuals on coercive interactions with the state.

Police we know are not equipped to do the job of mental health crisis response. Even the government has acknowledged that.

So the Obama and Biden Administration Departments of Justice launched a number of investigations into police departments around the country revealing serious problems.

These problems ranged from excessive force to unlawful searches and seizures, including unwanted and punitive responses to individuals in mental health crisis.

Because we're in Baltimore, I'll mention specifically the important DOJ investigation into the Baltimore police department. The DOJ's finding letters documented in its investigation dedicated an entire section to the BPD's incidences of excessive force against individuals with mental disabilities or labeled in crisis, who had committed no crimes. So not even where there was a crime that was crafted on cast on to them for disability-related behaviors.

The investigation noted that BPD provided less effective services to people with psychiatric disabilities and intellectual disabilities by failing to account for these disabilities in law enforcement actions, leading to unnecessary and excessive force against them.

They also documented that officers used heavy-handed tactics when civilians simply refused to obey commands and escalated encounters by resorting to force too quickly including against individuals who are not being arrested for any crime.

Again, the government's formulation of the problem.

Lastly I'll talk about hospitals for two and a half seconds, so aggressive enforcement in and around hospitals including important reporting by pro publica one site the Cleveland Clinic was particularly identified as engaging in aggressive law enforcement tactics against people who had received or were in the process of receiving medical care, attempting to access care.

Disruptions at hospitals in that community and others are justified as part of an effort to ensure peace and tranquility in hospital environments, which of course we see as important to the provision of medical care in these facilities.

At the same time, arresting individuals for disrupting these areas in and around hospitals contributes to the criminalization of disability. And so we are seeing in many ways criminal law providing a kind of accommodation for other people with disabilities, or other people receiving treatment in these facilities, which is a per version of a value within disability rights and justice that we hold very dear.

I could continue on and on, but in the interest of time and out of respect to my colleagues I'm going to stop there and ask Cory to talk about involuntary hospitalization.

CORY BERNSTEIN: Thank you so much for having me and having me join. My name is Cory Bernstein. I am a staff attorney at national disability rights network.

I am a white man in the last seconds of my 20s wearing a beige shoe and a blue shirt and a beige and blue tie that does not totally match but it's fine. And just for a brief bit of background, NDRN is the network membership organization for the 57 protection and advocacy agencies designated by federal law.

And what comes with that is legal authority to access service providers, as well as records and conduct investigations where people with disabilities reside or where they were abused and neglected and it will come up a bit as we go through this today.

I am not an academic but I'm going to be a little bit theoretical here in talking about the modern legal framework for involuntary commitment, civil commitment which I'm using broadly to say for psychiatric treatment and the role that that plays in the criminalization of disability. And institutionalization for psychiatric treatment has existed as a tool of oppression for centuries.

Jamelia covers it well in her recent article on the fourth amendment. And in recent years we've seen an increase in rhetoric promoting and touting involuntary and civil commitment as a kind of panacea policy solution to address issues that range from homelessness to substance abuse, reducing violent crime.

We have seen political leaders across the country and the political spectrum calling for this.

We've seen legislation right here in Maryland, as well as my home state, New Jersey, New Mexico, West Virginia, many others in the implementation of care courts that kind of goes to where this is a real trend and really concerning.

And with this in mind, I'd like to look at this -- the modern legal framework for involuntary commitment that emerged out of the 1970s as not just part of the criminalization of disability, but also geoliberal style of governance that prioritizes austerity and social control over social justice and democratic demands.

And this builds off arguments by others, Ann parse sons on the links between mass incarceration and deinstitutionalization really being those policies and that austerity focused style of governance, not what has been debunked that the closure of institutions led to the rise in mass incarceration. There's a body of literature on that, so I don't want to go into that now.

But really go through just some of those links. And three things I want to focus on or developing the development of both of constitutional and policy framework for the dangerousness standard that is used in just about every state to justify psychiatric -- involuntary commitment and civil commitment; the rise of privately operated settings and privatization, and also the role of law enforcement in the commitment process and a little bit about what this all means.

And I do just want to say at the forefront, we know civil commitment may happen outside the criminal-legal code. Sometimes it doesn't when we're looking at forensic hospitalization or states like Mississippi that do involuntary holds in jails.

But also the way that outpatient commitment has become a form of parole. And when these are not part of that criminal-legal code, they are part of the carceral state and they are carceral forces.

But to go back to kind of our main points here.

The contours are a little bit hazy but a series of 1970s and early 1980s Supreme Court cases, O'Connell, Jackson, adding ton and other kind of read together broadly seem to permit involuntary commitment constitutionally where there is clear and convincing evidence that the individual has a mental health disability and is dangerous.

And these are sometimes hailed as landmark cases for the deinstitutionalization movement, but I would like to frame them a little bit differently today, as a reaction to the disability, to the deinstitutionalization movement. Because they did put procedural safeguards in to prevent institutionalization without a hearing, but also entrenched some problematic practices and assumptions.

The dangerousness standard by its definition conflates mental health disabilities with violence, danger, and criminality.

By and large, this sort of affective or aesthetic association isn't present in the framework for intellectual and developmental disabilities, which is not to say it's not there, but just the way that we have made those things conflated. And while the Court is given this dangerousness standard, it's fluid. They've never really gone to what the contours of it are.

Iowa defines dangerousness for the purpose of involuntary commitment, civil commitment as including serious emotional injury to family members. So it can be as broad as that. And this is magnified by the concept of grave disability which has never been tested before the Supreme Court and is sort of a relative of the dangerousness standard and purportedly an individual's mental health disability makes them unable to care for their basic needs, even where there's no overt act creating dangerousness.

It could be for reasons like the inability to provide one's self with food, shelter or clothing. And with this gravely disabled criteria, you're now adding poverty and homelessness into the medication with mental health mental health disabilities and violence to justify commitment.

It entrenches the relationship between poverty and disability that Jamelia talked about and brings this carceral dynamic in as well.

And these assumptions are really what have driven the policies that Eric Adams has touted in New York City, and also some of the logic behind care core and some of the other policies in California including prop 1 and SB43. And as disability rights California has done a really good job documenting these, the grave disability framework, it perpetuates systemic racism and intersectional harms. Because people of color are disproportionately unHoused and seen as dangerous and violent due to their mental health disability.

Additionally this dangerousness test is really individualized in a manner that reflects the shifting of interpretations of due process in the 1970s or late 20th century. The dangerousness standard only looks at the person, not the broader structural or societal factors that contributed to or caused their commitment.

It could even be their speech or their refusal to take medication.

And even in O'Connor v. Donaldson where a tort case, where an individual Lang wished in a Florida State hospital system for 15 years without a hearing.

The Court saw no reason, and I quote, to decide whether the state may compulsory confine a nondangerous mentally ill individual for the purpose of treatment. That was not on the table in a landmark case establishing procedural safeguards for civil commitment. And this wasn't preordained.

Certainly if you look at the legal development with the 180 laws, that barred the creation of psychiatric hospitals and put the emphasis on community-based services but also the Supreme Court's decisions in the '70s and '80s in cases like the Pennhurst and Cleburne v. Cleburne, which rejected broader claims and in Pennhurst also rejected an interpretation of the DD act through what is now known as the clear statement rule that tied funds to a resident bill of rights in a manner akin to a contract.

And that's something that became a hallmark of conservative jurisprudence and was spoken about in an article details that the first federal society conference. And finally, these are only negative rights. There's no affirmative right to support of housing or community-based treatment or equitable transportation.

The only place you can get positive rights, as is detailed in a series of cases to food, to clothing, to medical care, if you are institutionalized or become a ward of the state or incarcerated. We're only guaranteeing those rights out there.

So when we dig a bit deeper, these emphasis on individual rights, track broader law and political economy developments that began taking hold in the 1970s and it's hard to not look at the rise of involuntary commitment as we see it now with this framework. And it's not just constitutional interpretations.

The policy debates around the dangerousness standard track this as well.

What's often kind of heralded as the landmark involuntary commitment law at the state level which is where this takes place is California's act from 1969. There was a lot of competing influences there, but a significant factor was then Governor Reagan's campaign pledge to reduce the state's mental hygiene budget by 10% and this was a way to reduce staffing levels and also in the same efforts reduce wrap-around and community-based services in establishing this dangerousness standard.

It provided a mechanism to both reduce expenses and establish social control over a marginalized group of people. So it should come no surprise that 12 years later, when in the oval office, President Reagan effectively repealed the community mental health centers act with the omnibus act of 1981 which reduced funds for services through Black grants. This is part of the same and consistent ideological world view.

Second these will be much briefer than the dangerousness piece is the rise of for-profit settings. The best data that we have, which as Kate will explain is very poor, indicates that involuntary commitment occurs today more at private settings than at publicly operated hospitals.

That's not to say one is better than the other, but this has especially come true for shorter term commitment hold settings where facilities can receive federal reimbursements increasingly. National for-profit providers can take advantage of schemes and because Title II of the ADA only applies to public entities, we can't file claims against a company for their national operations under that area of the ADA.

They can still be implicated, but it's through the public entity. And this is not just similar to the development or rise of the prison industrial complex, it's the same companies operating these services across both criminal and civil detention settings.

A few months ago, the private equity firm that owned the notorious behavioral health provider well the path filed for bankruptcy and sold off its behavioral health business and forensic and noncriminal system settings were both included as one in that package. They don't see a difference.

And finally the role of law enforcement. And as was mentioned, the role of threat and police and crisis response and initiating involuntary commitment, is immense. Involuntary and civil commitment cannot exist without the role of the police. In Maryland there is HB0468 that's looking anyone to mental health evaluation and law enforcement to come and make that detainment and bring someone for the evaluation.

And there is a P&A access authority case called disability rights Texas which I think exemplifies just how far the law has been stilted toward protecting the police and not people with mental health disabilities. And just for a really quick recap of this, this was a case in Texas where an individual, EC's mom called for a mental health crisis, responds a crisis intervention team came to the person's family home and a social worker was communicating with this individual and working towards defusing the situation.

A police sergeant came and overruled them, forcibly entered the home. Police ended up shooting this individual with beanbags, tasers and at least one bullet.

Police then arrested the individual from a warrant that had been unfilled from a year prior.

They didn't even fulfill the mental health warrant.

They came in and used that as Jamelia's excellent article details as exigent circumstances for an arrest. So when the P&A tried to access body cam footage to investigate what happened, the Court denied access because they said the police were not acting as a disability service provider but instead exercises a due process limitation.

That is in some ways a logical end of cases and I think the narrowness of this isn't to say there are ever times when that is okay, but to just exemplify how broken our legal framework is when looking at involuntary commitment in the role that police and carceral systems play.

So I hope this sort of legal and historical reframing was not too dense and I did not speak too quickly, but it puts us on more firmer ground to rekindle some of the energy that has been maybe lost or been waiting to be rekindled since 2020, and also just think about legal arguments that don't ascent to these premises. What does challenging involuntary commitment look like without accepting the dangerousness standard?

Can we look to movements in other countries around psychiatry and the law like Chile and Algeria and Germany and Italy as constructs for what we are doing right here and right now, and I think we will talk more about that in the workshop but I will pass it to Kate.

KATE CALDWELL: Thank you so much. If you can advance the slide, please. So another site where we see the criminalization in educational settings a lot of times this is referred to more recently it's been known to inequity in IDEA.

What this means is there an over representation of certain racial and ethnic groups in special education when it comes to identification, placement and discipline, compared to their representation in the overall student population. And this disproportionality is an indicator of systemic bias, racism and ableism within the educational system.

So with regards to identification disproportionality, what this means is that certain groups are more likely to be identified as having a disability or as having a particular type of disability.

For example, Black students are disproportionately classified with diagnoses such as emotional disturbance or intellectual disability, whereas white students tend to be classified with less stigmatized disabilities like specific learning disabilities. And you can so how that snowballs later in life where some are directed towards services and supports and others are met with more punitive measures and we're going to continue to come back to that.

With regards to placement disproportionality, certain groups are more likely to be placed in restrictive settings such as separate special education classrooms or alternative schools instead of being included in general education or otherwise known as main streaming.

For example we know that Black and indigenous people of color or BIPOC disabled students are more often placed in self-contained classrooms or segregated settings, or segregated schools altogether limiting access to education opportunities. And finally with regard to disciplined disproportionality, we know that certain groups are more likely to experience suspensions, expulsions, and referrals to law enforcement compared to white disabled students and their nondisabled peers.

So for example here we know that Black students with disabilities facial higher rates of suspensions and school-based arrests than any other student group. And oftentimes for behaviors specifically related to their disability. And we also know that Black students in particular are three to four times more likely to be suspended or expelled than their white, nondisabled peers or their white disabled peers actually. So how exactly is disability criminalized then? And we've enumerated a number of ways.

That was redundant.

Starting with the school-to-prison pipeline, I imagine that's not a new phrase to any of you in this room.

But really what we're looking at here is that disabled students particularly BIPOC and those who are marginalized are disproportionately suspended and compelled. These hash measures such as restraint and exclusion and law enforcement referrals push disabled students into the criminal-legal system. And we know that students with disabilities are twice as likely to receive out-of-school suspensions compared to their nondisabled peers.

Here I would like to say we're talking primarily about BIPOC students being disproportionately identified and having disproportionality and identification placement and discipline; however, it is very likely that we would also see disproportionality when it comes to sexual orientation or students who are LGBTQ +.

However we don't necessarily have the data to be able to actually say that.

However, what we do have is data that indicates that were we to look for this disproportionality among LGBT students, disabled students, we would also likely find it there. So I just want to sort of say that.

However, understandably, there hasn't bench data collection on LGBTQ disabled students, unfortunately, in the political climate that we are in. So the second point here where we sigh criminalization of students is in use of police in schools.

In particular what's known as school resource officers or SROs.

Schools that have a high presence of SROs are more likely to criminalize student behavior rather than provide accommodations or support. Disabled students are disproportionately referred to law enforcement and arrested as we mentioned for behaviors specifically related to their disability, and we also know that schools with high SRO presence have a higher rate of student arrests overall.

Schools often fail to train officers in disability awareness, leading to escalation instead of de-escalation. Although we could also talk, if you wanted to later, about how training isn't necessarily the solution to the problem here. And in point of fact, training can actually worsen the problem instead of ameliorate it.

So the presence of police in schools actually very likely is just exacerbating the problem, even if they were trained.

The next point would be the use of restraint and exclusion, and we're coming from the state of Illinois where of course it has garnered a lot of attention in the news media for restraint and exclusion policies and how they harm disabled people.

We know that students with disabilities, particularly those with intellectual and developmental disabilities are physically restrained and see included at alarming rates.

For those of you who may not be aware, some schools create exclusion rooms and they're basically little solitary confinement boxes in the school. Sometimes in a classroom, sometimes in a separate place. And sometimes the school administrators will say oh, we've made it a sensory room.

We've put a soft blanket in there or a stim toy.

But at the end of the day, often times these rooms are locked and even when they are not locked, the child is being put in this confinement under an authority with the intention of punitive measures if they are to leave. And so it isn't exactly a voluntary space. It is not a voluntary space. Sorry.

We know that disabled students represent 12% of the school population, and that number is not a great statistic, but it's the one that we have. And we can talk about some of the difficulties with data, how data is being collected and we will actually discuss that in a little bit.

But it's a number that we have. We know in the general population it is 27.8%, so of course 12% seems a little low.

But regardless, we're going to go with 12% of the school population.

Yet they account for 75% of the students that are physically restrained. So even though there's some questions over the accuracy of the data here, it gives us an indication that there is a big problem. And that it is disproportionate. And of course these practices are often use punitive practices are often used instead of positive behavioral supports or alternatives that can be used, and they violate students' rights and reinforce taking punitive approaches.

With regard to denial of education and informal removal, we know that schools may push disabled students out through a variety of means, and this can include informal removals such as shortening their school day, or encouraging transfer to more segregated settings.

Many students are placed in alternative schools that lack adequate educational services, and therefore increases their risk of dropping out in future incarceration when they got trapped into that school-to-prison pipeline.

And some schools call police or child protective services on families instead of providing the necessary disability accommodations and services. And this of course varies.

It's disproportionately towards students of color.

With regards to the criminalization of disability-related behavior, many of these behaviors as we mentioned before are related to their disabilities.

For example, a meltdown or a tic or some sort of executive function difficulty that someone might have, is often misinterpreted as die fines or aggression. And when you think about it, police officers or the majority of anybody that is surveilling individuals for the purposes of controlling that environment, to keep it safe for individuals, I'm using air quotes here, you're trained to look for normative behaviors.

And you're trained to be suspicious of anything that does not meet that norm. So anything that seems different or deviant, it is now you're trained to think of it as dangerous. And so, and it can be police officers, SROs, it can be social workers, it can be teachers and administrators.

It's anybody that's become part of this surveillance state is now looking for anything that is different, is not normal that they see as suspicious. And that's where we really see in educational settings in particular, although we see it pretty much across the board, we see these disability behaviors becoming sites of criminalization, as well as surveillance.

Disabled students are often charged with vague offenses, like disorderly conduct or disturbing the peace.

And these arrests and criminal records follow them throughout their lives.

They're just kids, but now they've got to carry this with them for the rest of their lives.

We see huge racial disparities in disability criminalization, particularly among BIPOC students who face the harshest discipline and policing. Schools more heavily surveil and police students of color rather than provide services. In particular Black students are more likely to be classified as we mentioned with emotional disturbance which leads to hasher discipline and exclusion from general education settings. And to get to the bottom one, failure to provide IDEA protections.

The IDEA or Individuals with Disabilities Education Act requires schools to provide a free and appropriate public education other ways known as FAPE.

But schools instead punish students. Many disabled students are disciplined before they receive proper evaluations or services that they should be getting. And a lot of times when students do get something like an individualized education plan or an IEP or even a 504 plan under the rehab act, schools may still call the police instead of providing the legally required accommodations. And here I'll say that by and large when you see people discussing disproportionality in education.

Otherwise sometimes as we'll get to in a second referred to as equity in IDEA.

It's really spoken of within the context of IDEA, but the way that disability is being criminalized in educational settings is not specific to just special education setting, but rather we see disabled students of color disproportionately ending up in special education.

But it can happen outside of those settings. And it does happen outside of those settings as well. So we need to really start learning how to broaden that discussion a little bit beyond just the IDEA. So I wanted to sort of talk about this, where this language came from and how the policy has developed over time. So they knew that there was disproportionality is education all the way back in 1997 about the IDEA amendments, which required states to monitor racial and ethnic disproportionality in schools.

They knew there was a problem in '97, and they were like hey states, I need you to start collecting some data on this so we know how bad it is. Then in 2004 we saw the reauthorization of IDEA expand this even further and it said states are actually going to now require them to collect data on specifically identification, placement and disciplinary actions.

Now 2004 we've identified specific sites where we see this disproportionality, we're going to start collecting this data, okay, great. That was in 2004 and we're still having this conversation today. We haven't moved that far beyond it.

Why?

So in 2013, we saw a government accountability office or GAO report that found inconsistencies between the states. Basically every state was measuring it differently. Some of them were defining disability differently. And there was no way to actually match up the data. Right?

And so there were variances between all of the states' disability disproportionality data and it was difficult to get a picture of whether variances between the states were actually due to social and economic differences between the states, or whether they were just due to them defining and collecting their data differently, right?

And so then in 2015, we saw the National Council on Disability groundbreaking report called breaking the school to prison pipeline for students with disabilities. We also saw a lot of work in the Obama administration to try and address the disproportionality in education problem. They had anal open comment period and they passed the disproportionality rule. And in 2016, that is when this became known as equity in IDEA.

They established that there is racial bias in disability education, and established equity in IDEA regulations that require standardized methods for public data collection and reporting, as well as targeted systemic intervention when disproportionality is found. So now we're going to have a standardized system so that when there are differences between the states, we know why.

Because we know that there's differences between the states when it comes to racial and ethnic composition as well as the locations that those individuals are, the access that individuals have to public education, the different ways that those states fund special education and education in their states.

There's a lot of reasons for variation, but the methods that are being used should not be the variation.

That just means that we aren't doing a good job of collecting data, which we have not been. So that passed in 2016. At the end of the Obama administration. And then Trump takes office, what I'll refer to as Trump 1.0. And what we basically see Betsy DeVos steps in as secretary of education and puts a halt to all of this and she says oh, we don't know what's happening. We need more research to find out if this disproportionality is actually a thing. And she stalls for basically two years.

She just doesn't implement the rule. And so in 2018, DeVos delays.

2019, a federal court reinstates the rule where when a judge found this delay to be unlawful and the implementation begins at the end of that year with more districts identifying disproportionate placement and discipline in particular. And then in 2021, we see an increase identified even further where nearly 100% of districts were flagged for situation can't disproportionality.

When we did start collecting this data finally, we're starting to see that oh, this is actually a much bigger problem than we originally thought. And we need to -- let's get back to those systemic interventions we talked about. Except now what's happening?

Where are we in 2025? We're with Trump 2.0, and actually later today he's supposed to be signing his executive -- I almost said executive disorder -- his executive order, I apologize. That sounds like a huge insult to the disability community.

He's supposed to sign his executive order dismantling the Department of Education. And so the dismantling of the Department of Education basically means all of this progress will be erased.

There's not going to be funding for this data collection.

It would be up to the states to fund this.

And as we've already seen, the states on their own aren't doing a great job of this.

Right? And so I mean they've got reasons to not collect this data. And they need incentives to actually give them a reason to not just collect the data, but actually address the systemic inequalities that underlie it I and that was pretty much the role that the department of Ed was taking in this.

But now, without their involvement, getting rid of the majority of their staff is basically just leaving this as something that's not going to continue. So if we can advance to the next slide.

So we wanted to lead this into what are possible decriminalization policy interventions. And in education it starts with continuing equity in IDEA.

We were finally starting to see it pay off, and now we're sort of at a bit of an impasse.

But also it only goes so far. Because you know, what are those strategies to address systemic inequity? We need to also look at removing police from schools, because they're not helping.

They're really just criminalizing disabled students even further.

We need to look at abolishing restraint, exclusion, informal removals as well as zero tolerance policies that only further criminalize students for behaviors specific to their disability. And we also need to look at alternative approaches, especially restorative justice approaches, de-escalation tactics, and even alternative approaches like positive behavioral interventions, although I'm sure my colleagues could speak more to that.

But it's better than using purely punitive approaches.

With that I will turn it over.

JORDYN JENSEN: Thank you. This is Jordyn again. So when thinking about decriminalization when it comes to crisis response, it's been a large bulk of what we've talked about today. So I first want to state that, or I'll highlight our forthcoming report that CRDJ is jointly writing with Human Rights Watch and the New York Lawyers Republic Interest and that it is going to be published in May. So look out for that on alternative crisis response models.

And so why alternative crisis response is necessary. So disabled individuals, particularly people of color, face disproportionate violence incarceration and death at the hands of law enforcement.

We've talked about that. And traditional police-led crisis responses frequently escalate situations resulting in trauma, injury, or worse, death. So mental health crises often mistaken for or perceived as dangerous behavior instead requires alternatives, requires specialized trauma-informed interventions that are rooted in autonomy choice and really center consent. And so that's where these alternative crisis response models come in.

We're not talking about co-response models. We're talking about true alternatives that do not involve police, that do not result in involuntary commitment or involuntary hospitalization forced hospitalization, et cetera.

But I do want to note that there is a significant, and I emphasize significant, lack of these types of programs, although we've seen them pop up. We've seen programs call themselves alternative.

They are not true alternatives, many of them.

There is a very, very small amount that meet the criteria that we've been compiling with and coming up with human rights watch.

So this will be really be highlighted in our report so I do recommend reading that when it comes out but I do want to emphasize that a few of these criterion, alternative crisis response models, must have, and that, as I stated includes being consent-centered, and autonomy-driven, free and confidential services available 24/7. The response time equal to that of other emergency responses.

Community-based approaches, really involving community members at all levels. Whether that's in the creation of the program, implementation and also ongoing. And also employing folks, a diverse array of folks with the program at all levels, again, leadership. Et cetera, who are known and trusted in the community who are peers people with actual lived experience.

These programs should also have an alternative contact number to 911, so a dedicated non-police -- or a contact number like 988 or their own individual hotline so individuals can seek help without fear of criminalization like 911.

Also expensive informed trauma culturally responsive training is important. Diverse peer participation which I stated briefly, but again, not just as folks responding, but also in leadership roles.

Whether that is wearing plain clothes, an unmarked vehicle, avoiding symbols that reflector represent law enforcement.

Providing follow-up services for ongoing support, exclusion of police. And co-response models which still involve police.

And like I stated earlier, no involuntary treatment forced transport or hospital admissions. And then lastly just the importance of effective and comprehensive data reporting, I will lastly state these are so scarce and the ones that do exist don't hit all the criteria that I just mentioned.

We really need an increase of these models. It's critical to reducing the criminalization of disability and creating safer, more just communities where people who experience crisis or perceived crisis are met with compassion rather than control.

CORY BERNSTEIN: I'll just talk for about a minute until we do Q&A.

This is a very not accessibility-friendly chart, but I just want to explain what this says. Not the words on it, but this is something the disability center of Virginia put together. There are 19 different interactions that one could have when entering the state's mental health system and they're color-coded by seven different types of intervention that can occur whether it's through the criminal system or crisis response, and I say this to just back what Kate was saying earlier, that these are all sites and locuses for information that we don't have and we don't collect.

And involuntary hospitalization commitment happens at the state level. These are 19 different places that information would be needed to, if we wanted to actually do that type of assessment of a state mental health system, what we would need and we don't have.

Next slide. And one of our states disability rights Arkansas put together a database of psychiatric residential treatment facilities and the data that comes from them, and they explained in this really incredible virtual site that as made clear on various entities is therefore not available one place this makes it impossible for guardians judges or other states in youth placement agencies to make informed decisions about the placement of youth.

That's why I think this data is really important. And I think one final thing I will say is that we have to look at, certainly on the mental health side, deep skepticism at the state and the marketplace that they create. And I want to start thinking more about how we can build alternative structures of power and support and solidarity for each other within our mental health systems and I'm sure we'll have more time to talk about that at the workshop.

I think going back on the sites there we see these go from both evaluations and assessments to crisis response by police, voluntary services, involuntary.

So really running the gamut of different things and places. Some are involved with the Courts, and some aren't.

But to just give a range and the link is there and disability rights center of Virginia has longer explanations for kind of the legal background for each of those 19locuses.

JAMELIA MORGAN: We are almost at time, but we wanted to leave opportunities for the audience to ask us questions and we'll also remain here after our session to hash out some of the details, share data sources, opportunities for collaboration and partnership. So without further ado, Bob?

>> We have some mic runners who are going to find their way to you. Thank you so much.

>> Bob Dinerstein, my question or observation is to Cory and thanks to all the panelists for really a very interesting presentation. Having been around -- this will date me -- during that period of the cases you were describing, O'Connor, Edington and Jackson, I had a very different sense about those cases. I appreciate you're offering a challenge to that.

One of the things I think is important not to lose is those statutes that push for dangerousness leading up to O'Connor were in response to prior statutes that simply permitted involuntary commitment on the basis of care and treatment.

All you had to show was the person was mentally ill and in theory could benefit from care and treatment.

We know they didn't get that.

But the dangerousness was put in as a way to say in our society, generally speaking we don't involuntary lock people up no matter what we think they might do unless they are engaging in behavior that's either criminal and we treat them through the criminal system or sort of close enough because it raises some issues of harm to others.

So and Donaldson, which again, as you said established the dangerousness standard was originally brought as a positive right to treatment case, which would not have won. And there's a great story about this if you read it in the brethren, it talks about how essentially the lawyers figured out that the way to win the case was to focus on liberty and that's why what you quoted made sense.

Which is if somebody is not dangerous and can live on the outside with the help of family and friends as they said, they don't need to be institutionalized. So I'm with you on grave disability.

I'm with you on some of the problems with definitions, but I do think it's important not to lose the fact that the dangerousness, at least in a pure sense, was a way to limit the power of the state to interfere with somebody involuntary and not to expand it.

CORY BERNSTEIN: Yeah, absolutely and I don't want to -- I'm a fan, Bob just asked me a question is how I feel. So that wasn't to say any like intent into that, but just sort of looking at how that has operated in the broader framework of things.

And I'm reminded of a couple of months ago in terms of rethinking and framing things, I was complaining about Loper and how bad it was, and my colleague was like well, when I was doing -- when Chevron came out, we were all the civil rights attorneys were upset about it because it was giving Reagan's agencies these power.

So I think it's important to think about the different dynamics and implications of things even for better, worse, neither, as they become kind of the hallmark cases in certain areas. And that's just what my posit was and I take your point and understand that that was where things were going and why in O'Connor it was that way.

But yeah. Just looking at kind of how things have derived from there.

JAMELIA MORGAN: I think one reaction, Bob, also is just thinking about like what comes after dangerousness. If we see it as the reform of the era that raised the bar, ensured that there wasn't the grave civil liberties abuses that we saw of the prior era, what comes after that.

I think that's something that I'm currently working through on a project but I'm also kind of reminded what Angela Davis said about the prison, like the prison at the one point was the reform and what comes after prisons?

What comes after these carceral punitive approaches for those of us that are thinking beyond the carceral apparatus and what we are using to respond to conditions where individuals are losing their liberty.

How do we balance that.

And so we definitely want to acknowledge the history, but what comes next I think is the struggle for maybe our generation.

The Criminalization of Disability: Exploring Intersectionality and Justice

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