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.
Good afternoon, everyone. We're going to kind of pick up where we left off and have this component of our discussion on the criminalization of disability be a little bit more interactive. So we wanted to start with a few opening questions just to see who's in the room.
And then to have a discussion that gets us a little bit closer to some of the central themes that we talked about, like the tensions between disability rights and criminalization, what are the kind of transformative radical possibilities on the table outside of just reform approaches.
We want to have those discussions, but first I think it would be helpful to see what might be of interest to you and what might be at top of mind. So we'll use maybe a kind of volunteer-based approach, but with the idea that maybe a handful of us can participate or everyone if we all feel comfortable, we're curious specifically what draws you to this particular topic, kind of related to that, if you were litigating cases or doing individual client advocacy, what sorts of cases are you working on that relate to this topic.
And importantly any challenges that you might be encountering in work that relate to the criminalization of disability frame. So as people feel comfortable, it would be great to seeing them.
If you're not working at all related to this topic and you're just interested, that's fine too. There's space for you here.
KATE CALDWELL: We would like to embrace the idea of a workshop and have this be a more interactive discussion..
ATTENDEE: Hi, everyone my name is Mercy. I am an Asian female who wear black. I'm currently law student at serious college of law. I'm interested in the criminalization of disability of course because Professor Morgan read a lot of phenomenal articles about the issue.
I read some memoirs about the death penalty in the United States.
I realized most of those prisoners on death row they have some type of disabilities but it was not disclosed or fully investigated during the proceeding.
So it just makes me to thinking about how the United States legal system the situation for those people, especially for those who have intellectual developmental disability. And I also think about, I just cannot help myself to thinking about it's because the very deep history and foundation of slavery in this country did that make this happen, and even if slavery legally does not exist anymore but the impact is still in today's America.
That's my question.
JAMELIA MORGAN: Thank you, Mercy.
ATTENDEE: Hi, my name is McKenna with Disability Rights Maryland, I work on their adult mental health team and spend most of my time working with individuals who are patients in the state psychiatric facilities and state forensic hospitals. And I am just really sort of interested in the impacts once somebody has been roped into you know the sort of carceral system because of their disabilities.
The impacts that has on them. I've been coming across instances where you see individuals who have been found incompetent to stand trial, they are waiting to be found competent or for their charges to lapse. And the sort of disparate standard that they're held to in terms of their ability to like work with attorneys and contribute to their case in a way that I think is sometimes a higher standard than somebody who doesn't have one of these diagnoses would be held to.
Somebody who's maybe just a little more difficult or prickly of a personality without a diagnose, would just be read as such and their ability to have access to, you know, a trial wouldn't be questioned.
But as soon as one of these diagnoses is thrown into the mix, all of a sudden that makes them, you know, incompetent to stand trial and they can't productively contribute and they're stuck in the system for even longer. So that's something that I'm interested in particularly.
ATTENDEE: I'm a staff attorney with Disability Rights Maryland as well. I wear two hats; I work on the children's mental health education team and I also do some voting work which obviously feels very irrelevant right now. With the children's and mental health work I work with transition-aged youth under the PABS grant trying to remove barriers to employment.
Obviously the criminalization of youth and the barriers that result is very significant and we run into it all the time at DRN. Something I'm hoping to learn more about is how we combat the tough on crime approach even in a deep blue state like Maryland continues to dominate the narrative in the policy space specifically, I want to say this is the 13th year that we're trying to pass the Yes act which will end the auto charging of youth in adult court.
It may not pass this year, and this year they have essentially eviscerated it to create some loopholes where certain violent crimes in youth being auto charged in adult court.
So it's really lost its form and has become not the same bill that it once was, or never was I guess obviously. So if you all could provide some additional perspective to how better address that issue, better lead that charge, and just stop the practice altogether.
ATTENDEE: Hello. My name is Rosey, I am a white woman with chin-length curly brown hair and I'm wearing a black blazer and a white shirt. I am a staff attorney at Disability Rights Advocates and I've worked on several cases that kind of work on some of these themes.
A lot of -- I mean a lot of my work has been on conditions once folks have already been incarcerated, but I do work on at least one case that is dealing with kind of punitive responses to youth experiencing mental health crises.
Actually there are two that I work on in that regard. So anyway, I'm interested kind of in a continuation of the conversation earlier about disability and as deviants and dangerousness and how to kind of reframe that in our advocacy.
I also come to this with a little more personal approach. I have a sibling with IDD while he thankfully has never interacted with the police yet, hopefully never, I can't guarantee that, just personally I'm pretty frightened about what would happen should he ever be kind of sucked into a punitive carceral police kind of dynamic. So that's me.
ATTENDEE: Anyone else want to share? All volunteer-based.
ATTENDEE: Hi, I'm Ann from the Young Center for Immigrant Children. I'm a white woman wearing a gray dress and the name of the organization might give you a hint, I'm interested in sort of how immigration status plays into this and sort of the similar criminalizing narrative that we are seeing more and more against immigrants and how that is playing out for immigrants with disabilities.
And thinking of the passage of the lake and Riley act which requires mandatory detention for folks arrested, so not even charged or convicted of crimes like shoplifting and other low-level crimes and seeing people with disabilities at risk of getting caught up in that. So I’m just interested in thinking through some of that intersection.
ATTENDEE: I also wanted to raise a question point, sort of interest that I have, when dealing with people who are in the state psychiatric facilities and forensic hospitals, the impacts you see in terms of the treatment that is available to those individuals it's very focused on the mental health area, but what happens when people have multiple disabilities and when there's those dual diagnoses, especially when it comes to issues like IDD, things like that and I find like very frequent sort of lack of any kind of consideration that is given to those other disabilities as well and how to sort of challenge that current status quo and make sure people are getting comprehensive care.
ATTENDEE: I'm Nicole. I'm a law professor at Loyola and director of the health law program there. And I'm interested in how a trauma lens can help show interesting dynamics and contrasts if we think about how trauma causes disability and how punishment and lack of support ends up creating trauma from the government systems and from law, because there's -- now that we understand so much more of the neuroscience.
The deprivation of adult supports and removing separation from primary attachment figures while also overwhelming children with adversity just equals trauma. And how if we just look at the health effects of the ways in which we punish kids rather than support them when they're struggling behaviorally and in school. And then end up criminalizing kids with disabilities, it just creates more disability, more trauma, and more bad outcomes.
And further, just like really diminishes our ability to serve best interests and to elevate children's rights. So sometimes the lens of trauma helps to like highlight a lot of the health injustice that is occurring.
ATTENDEE: Hi, I'm Eve at Brown, Goldstein & Levy. I guess I got interested in this in particular when I was at the justice department and we were doing Olmstead integration enforcement, and a lot of times one of the key pieces that we had to put in place was mental health crisis response that didn't lead to jail and led to services instead. And so since then, we at the firm have had a couple of cases involving mental health crises and where the end result was horrible.
And so we've challenged Montgomery Counties and DC's interactions with people with mental health conditions. And then I've been involved in restraint and seclusion cases in schools, very concerned about the overrepresentation of students with disabilities in the push out into the criminal justice system, and school resource officers and things that seem like inappropriate responses. And then I've been doing -- I just do apparently one of each thing in every category.
A lot of prison conditions cases for trans women and people who are blind, both of whom are treated terribly, terribly in prison. So I'm very interested in all the issues you talked about.
JAMELIA MORGAN: There are so many incredible people in the room, so what we want to do is maybe take up some of the questions as you all are thinking through responses of your own, please like weigh in. I think as Kate mentioned we wanted this to be a really collaborative space. So maybe the first question that we'll take up that a few questions have pointed to is how do we combat this tough-on-crime approach and narrative that does come up perennially time and time again, as we see crime rates surge.
The construct of crime I want to name that. Not all harms that are counted as crimes, but for those that are counted as crimes, when it begins to rise, we start to see these narratives, whether it's the demonizing of youth in cities that are turning to curfew enforcement in response to the juvenile theft crimes and the like and one wonders how young people could have engaged in these acts in an organized fashion.
These are not the only parts of the story here.
Anyway.
How can we combat the tough-on-crime approach. I'll ask us to all think about that. And then I think specifically within that, we see the criminalization of disability frame coming up. We've seen it in response to mental health crisis which I want to connect in homelessness and what's happening around the policing of public space in response to unsheltered communities.
I think that's a part of it. And then also there's so many stories in my mind too, Jordan Neely on the subway, that should be a try to understand those narratives. On the one hand Mayor Adams says in many ways he walks back; he could have been my son at one point in the same breath argues for more police on the subways. How can that be, right?
Let's take that question up, but I also want to point to the intersectional nature of the issue.
The Laken Riley Act and the demonization of immigrants.
That's a narrative too. How do we react to disability as deviant and dangerous in this moment of certain crisis and chaos?
Thoughts on that.
I'll save mine for after what you all think about.
Anyone want to start?
You all know I have a lot to say.
CORY BERNSTEIN: Not to repeat what I had said before, but I think one of the things I had tried to do. And it maybe feels contrary to I think someone asked this in the plenary about the idea of being in an understandably defensive posture on a lot of things v. where we can be more, I don't know, offensive or -- I don't like that because it sounds like offensive. Or really just like questioning some of the presumptions that the law is built on that got us to this point is what I have been trying to do in my work.
Because we have to recognize some of these reforms that were viewed in positive and maybe were in some ways, led to where we are now. And I certainly think that's true on the dangerousness piece, and there's a lot more there and how we can also do advocacy and legal work within the like constructs of systems that we have that is also able to challenge or question some of those fundamental assumptions.
KATE CALDWELL: If I can sort of build off -- I honestly want to sort of acknowledge it's kind of weird that we're up here on this dais, we're just up here because it's where they put the mics, but I think that part of how you combat these things is by being in rooms like this and being in community with each other. And this is hopefully part of a growing movement that is building awareness around these problems. And I think also at its very core, there's a fundamental misunderstanding in this country of what police do.
A lot of people -- and this is reinforced by propaganda on television all the time, which a lot of which is funded by gun companies.
But there's this idea that police are there to protect and serve.
And that they take some sort of oath like doctors take a Hippocratic oath. It's not actually true.
It's not actually part of their job to protect and serve. And if you look at the history of the police in this country, they're there to protect land and land owners and especially when people were considered property, it was their job to return property to owners. And in those cases people and those vestiges are still very much ingrained in our systems and structures in our country and you can still see it today to how police respond to things like vandalism in cities by protesters. And what they're doing is sending out police to protect businesses, to protect property.
And a lot of times we still see police protecting property over people. And so that's a very core misunderstanding and also problem that I think is at the center of how disabled people in particular become devalued in our society and why they become criminalized at such a high rate, because they aren't seen as valuable necessarily in these systems and structures.
JORDYN JENSEN: I have one quick thing that I want to just add on to what had y'all have said. So when thinking about like dangerousness and the criminalization of people with disabilities, I also want to -- everyone to keep in mind too that the historical context, particularly think about like cripple know logical theory and how it's rooted in framework that have viewed disabled people as criminals. For instance Lombroso and Goddard, two huge names who are considered big folks in criminology.
Lombroso who argued that criminals are the result of their physical and psychic organization differing from that of quote unquote normal individuals, claim that people were quote unquote born criminals, linking it to disability as a consequence of biological differences. And so that is really, you know, what a lot of present-day, you know, as we've seen throughout history, laws of policy have been shaped by those beliefs that have been debunked.
And then in addition Goddard who focuses on feeble-mindedness, a term that was used to describe people with IDD in the early 20th century as a precursor to criminal behavior. So I wanted to throw those things out there to keep in mind.
KATE CALDWELL: So these eugenic roots of criminology itself as a very field that establishes disability difference as dangerousness.
JAMELIA MORGAN: I know there's lots of folks in the room that have thought about this question of narrative. I think the historical origin Jordyn that you just mentioned really help, and the kind of connection between like our least historical origins and current manifestation and practical reaction. Every time we call the police on somebody, for whatever behavior, we're reifying that association between that person and criminalization.
So the moment of crisis which should be a moment where people are given support on the terms they desire and need and they can set and we can talk about why it's important to think prefiling and not at the point of crisis for all these important social problems that we're discussing, we're kind of reinforcing these associations and that's how the criminalization happens.
In the same way where if you see Black youth conjugating on a straight corner, they could be engaged in conversations, shooting the breeze.
In our head are they up to no good. The frames that come in.
What are they doing.
The surveillance impulse of the concerned relative and the neighbor come into play and then potentially a role for the police.
Disability we know across history is easily a category that can be become a site for the expansion of state power, in a couple of different ways coercively to put the quote unquote mentally I will away as the historical has been.
Even in this gross language in New York or California the kind of care turned carceral punitive Mayor Adams says it's the moral responsibility of New Yorkers, he says, be to help people on the streets that are suffering in their mentally ill state and how does that manifest cops essentially or social workers hospital workers, coercively engaging these individuals who look mentally ill.
The whole care court, care frame, we have to disrupt it and call it what it is, which is the incredible work we're seeing disability rights and justice doing and we have to find a way to incorporate that into our advocacy.
I know the tensions, but we have to at least disrupt that. So how can we not continue to lean into this hierarchy of disability that shows up whenever serious mental illness is discussed? That becomes the category that we can demonize the boogie person for a social problem that is so structural it's ridiculous.
This is about housing, affordable and accessible housing, not about clearing our public spaces and pushing people into the various carceral boxes to just get them out of sight and out of mind.
Now, I think the other piece of that is there are legal regimes why it's so hard to build housing in other competing interests.
I'm not trying to subvert all of California's environmental laws.
Again intersectional problems require intersectional solutions.
Disability again, pushing back against these disability is a source of pity frame.
How many of the kind of narratives that we're seeing even around unsheltered communities go from dangerous to pity really quickly. Individuals are in public space, anybody in public space trying to survive is going to deal with the kind of difficult psychiatric harms of just survival by necessity, right?
But this can't be becoming a -- can't be turned into a source of pity that can then justify more rights deprivations and that's my shout-out to governor Hochul and that particular policy to now, be to the history that we're talking about, lower the barriers to civil commitment, thankfully that measure was just defeated, make it easier to put people in carceral conditions, because air quotes, we care so much.
So disability is the problem and it's pathologize and it shifts it away from the structural.
The other thing to think about, so we're in this moment in the heart of lockdown where some people are saying we're talking in better ways about mental health and we're better able to put on the table the concerns about our bodies and minds. Remember that era where we were thinking about others? We were thinking about how we were showing up in our virtual spaces and how we were doing and how we were connecting.
I know a lot has happened since then, but to kind of just think about where we were around mental health and the bigger conversations before COVID and now it's almost like we've lost the threads a little bit.
We're back on the treadmill, back pretending that COVID is gone, back pretending that we're not isolated and more alone than we've ever been.
And so I think a lot of this framing we can kind of return to some of those narratives that at least worked when everybody was captivated. I mean so much of this is a battle over our attention spans.
The narratives that worked when we were paying attention were more complex, they were more nuanced and now we're back to the same basic messages that lead to rampant criminalization.
Like again, young people -- remember when we realized through neuroscience that young people have brains that are still developing. Not to pathologize that. They're still developing.
What happened to that narrative?
Oh, right, sacks 5th avenue got broken into.
We have to begin, especially in disability rights, I know we don't often think about criminalization rights as a disability rights issue, we have to push back against that. Stop supporting these sheriffs or district attorneys that are returning us back to this tough-on-crime era that are forgetting science that's a part of the movement that we're in.
To forgot the science to bring us back to an era where the politics of criminalization meant people of color, people with disabilities, people who were queer-identified were criminalized because they were pathologized in so many ways. I think to this particular trauma lens, I think this's that's corrected.
We are a traumatized society on the other side of a pandemic, in the decline of -- I'll just say the rise of fascism, whatever we want to call this moment of crisis, we have to find a way of talking about it realistically, instead of pretending that nothing out of the ordinary is happening right now.
KATE CALDWELL: If I can build on that, I especially from a justice disability lens one thing we cannot overlook is how much money there is to be made in carceral spaces. And that private equity is buying up nursing homes care facilities for people with mental illness, intellectual disabilities, of course prisons and jails, and we've seen so much corruption.
Hospital systems, I mean basically all of these spaces where disabled people are institutionalized, private equity is taking over. And I think one thing that we really need to do is hold them accountable. Hold a light to what they're actually doing and the ways that they're actually breaking what are supposed to be care systems in many cases, not all.
Supposedly. And the impact that it's actually having on the disability community as a whole. And I think also investing in non carceral spaces as Jamelia said, as in our disability community and ecosystem is going to be essential and especially in the coming years. Because what we're seeing is not just a retrenchment, but a just overwhelming investment by private equity in the incarceration of disabled people across the board.
CORY BERNSTEIN: Yeah. That's an issue that's been the one I've put every -- all of my brain towards. I will also just plug the private equity stakeholder project report that came out two days, put a lot of work into and is really great and the IDD sayings I will just say I'm not an expert in this, but I think that a lot of some of the most promising developments in law and psychiatry in the way that we view mental illness or sanity has come in authoritarian regimes and under fascism.
Like I think of when you were saying that the fear in Algeria, but also in South America and Europe as well. And that there is opportunity in that.
I think one of the challenges in the way that kind of law has -- where some of these intersections are is the view of mental illness and sort of the dangerousness and the idea of recovery rather than the full being of the person. And it's mentioned in the plenary, that's not necessarily how it's been in other countries.
There was a 2019 right before COVID proposal based on a province in Italy that looked to the two biggest problems with our mental health care system being the amount of bureaucracy in our billing system and looking to recovery rather than the whole self and that data should be collected on people's like sense of belonging.
These are activities recreation and we can see of things that way, we Mabel untether ourselves a bit from the dangerous construct of some of these carceralties. I want to give examples and say let's think about it.
Not just think about it let's do it.
That's just one thought I have on putting that theory to action.
JAMELIA MORGAN: Does anyone have any kind of responses to this? Because we do want to keep it interactive. Like reframing the narrative around dangerousness, the moment of fascism and the crisis that we're in?
ATTENDEE: Hi, my name is Nikki. So many thoughts because I wanted to say I wonder how much of it is different disciplines not talking across disciplines. I was a social worker and addictions counselor for 12 years. I know mental health.
I've worked in-patient, out-patient, methadone, community health. So it's hard because half of my cringing at certain things that even y'all said during plenary I don't know if they get it.
I agree with the principle, but then there's that social worker in me that's like okay, so you want to come up with some sort of crisis response that is completely up to the person but they're in crisis. So when you're in crisis you're not thinking but we're going to allow them to make the decision for themselves.
It's like I have these wars within me.
I'm a 2L now at Arizona state. I’m interning with the DOJ at the Disability Rights Section. I decided to blow up my life and become a disability rights attorney. It's a whole story; I'll write a book some day. And yes, it's a very, very weird time to be in the DOJ, no I can't talk about it.
I think my point is, I think there are misperceptions.
I know social workers who do not understand the law and do not understand what lawyers do.
I know advocates who are pissed as hell at lawyers why aren't you guys doing enough. And everyone is mad at social workers why aren't you guys doing enough and why don't you understand what you're doing is contributing to the negative well-being.
Everyone is kind of pointing instead of how can we collaborate and each share our expertise to come up with something like where are the shared goals? Because I know they exist.
CORY BERNSTEIN: I think that's a really great point and I know in my role with NDRN and that's been a real point of business for me, who are the psychiatrists who agree with our big picture analysis and how can we bring that in to our legal arguments and the same with social workers. I know Jordyn and I met with Neve Jones who's a researcher at Pittsburgh about this, how can we be doing that collaboration. Because I do not know how to do a factor analysis, but Kate does.
I agree with you that we can have the discussions agreement on the top-down and this is my discipline to go further.
JAMELIA MORGAN: I think that's right but like, okay. So I don't want it to be interpreted that we're saying in the point of crisis you are to develop what you would think of more as a psychiatric advanced directive kind of thing, but I think that there's a space for pushing back mental health crisis. In many ways our mass incarceration comes from this.
I think in many ways it justifies the kind of brutality and the excesses that we see. So when I -- it's interesting we recently with a partner got into a debate about this because we said under no set of circumstances do we want to justify excessive force, force against a person that's at risk of harm.
And one of the things I remember someone said in response in our discussion well, you know there are jurisdictions across the country to the comparative policy part that will use like our jurisdiction here that will use excessive force to stop somebody from harming themselves. Can we sit with that with the absurdity that is?
We let cops go into people's Houses? So what are we doing here.
I totally agree with what you're saying, but I'm trying to -- and that's where I feel like the interdisciplinary approach would help. How do we think beyond the crisis in this country?
Why do we people move at the point of crisis. And I think that's where I hope that we were able to convey, we don't have all the answers, but I'm trying to have a set of conversations where we'll get there.
KATE CALDWELL: I think it's also not waiting until that point of crisis. Trying to be more pro active about it. When we say taking a public health approach, it's really trying to think about it in advance before we get to that point, what structures and supports can we actually put in place so when that crisis happens, that individual isn't going to have to make an impossible decision, right?
But also so my background is in interdisciplinary social sciences and I have my PLD in interdisciplinary studies. I feel like every discipline needs to learn disability studies to some degree.
But the difficulty with not just policy silos and legal silos, and also the very nature of academia and scholarship itself being ableist structure.
Around classicist and racist and all of the isms. It's a real problem. It's where we see a very clear space for disability justice work as well.
Coming from more grass roots activism and being more approachable for people to get involved in. And I think at the end of the day what we're really talking about is finding places for people to meet and do the work and crossing those disciplinary divides.
It's going to take that. It's going to take us having conversations like we're having today.
It's going to be you asking the question that you just asked us, and us thinking about our response and these difficult conversations need to happen and need to not be avoided and I mean that's the hard part about interdisciplinarity it makes you uncomfortable but we need to be uncomfortable.
JAMELIA MORGAN: We have these conversations often in the center why did you say it like that and we're back and forth. So the barriers we're finding even within our own organization to having these interdisciplinary conversations have been revealed. So we have -- Lucy.
ATTENDEE: I'm Lucy. I use they and she pronouns, I have blue hair and I'm a white person in a wheelchair with a very large black dog. I am an attorney and when I was at the ACLU I had perhaps a little bit of a case study to share.
We were working on nonpolice crisis response for folks experiencing mental health crises in Washington, DC specifically and we formed a coalition that had community partners and it had social workers and it had finance people and I was running all over having all these meetings talking to all these people about these proposals.
Okay, does this make sense to you?
Does this comprehensive approach to crisis response make sense to you and we would go to the social workers and they would say no that part doesn't make sense and we would make an edit and we would take that part to the community and they would be like no we don't like that either. And we would take it to the finance people and eventually we would end up somewhere that actually kind of made sense.
And it was only through like a pretty hard process of sitting down and like you're saying having the conversations and being willing to look outside of our disciplines for knowledge and being able to look into the community for knowledge that we were able to put together like a 3-tiered fairly comprehensive crisis response that you were saying Jamelia goes beyond the crisis itself but also into supportive housing before and after. And we lobbied the Congress people, we tried and now there's a lawsuit.
But it was really educational in learning what that kind of system could look like, and that it sort of is possible to bringing folks together in that way to arrive at least a plan A and maybe plan A isn't perfect and then we tried plan B and we keep trying until we get it right.
But what we're doing now obviously isn't working and we have to change something.
JAMELIA MORGAN: We had a couple of other questions to facilitate a dialogue. This is specific to those engaged with law and legal practice, but other views are welcome. So how can we challenge some of the foundational assumptions of disability rights law?
I think Cory's critique of dangerousness is an example of that.
What are some of the innovative and radical legal strategies.
We had an example of what we need here and the kind of modeling that I'm going to ask Cory if you can speak to.
Okay, we're trying to disrupt a common way of thinking about X sort of legal problem or issue through innovation.
I hate innovation, it sounds too corporate.
CORY BERNSTEIN: Radical? Yeah. There's a number, Disability Rights Maryland, I have not read the case yet but had a novel ADA claim that Courtney came up with, because of course they did.
There's two in particular that I will highlight.
The first one is from Disability Rights in West Virginia in a case called JP v. sharp hospital and I think there's a link because it's a state court case that it is not possible to find unless if you really know West Virginia's court system which I do not.
But there is an individual JP who has been involuntary detained for at this point more than 800 days. He's in a psychiatric facility and all the clinicians testified that he does not have a mental health disability, he has complex IDD, but he does not meet the treatment criteria for a psychiatric facility, accepting the premise of that.
And they, because there hasn't really been any commitment hearing, they filed a writ of habeas corpus which happens occasionally in the psych setting, but they also combined it with a writ of man dam news which is basically telling the state that they failed in some obligation or duty to the person by ejecting him from his home and community-based waiver service group home.
So instead of going the dangerousness route, they're basically saying this is unlawfully committed because the state failed their obligation to provide this person with community-based services. I think it's a brilliant way to sort of reconceive of things.
It was dismissed on a procedural ground that JP failed to meet some presuit notice requirements in West Virginia and that is pending right now before the state Supreme Court.
But I think regardless of the outcome, even though it's like in state court in constructs of state law, the idea of the dual writ is not something that I had ever seen or thought about before, frankly, that I'm really interested to see what the Court comes down on.
And the other one from Disability Rights Maryland is the argument that Courtney has been making about the argument of first amendment right protections for psychiatric treatment as a violation of someone's freedom of thought and expression that they I think spelled out really well in a law review article that came out last year.
I don't know if that's been tried in a court yet, but as an example.
It is the right to choose and refuse treatment. I believe it is from Campbell law review, but I might be totally wrong about that.
The title though is that, yeah. Those are two that I have come across that I really think are cool.
JAMELIA MORGAN: So other maybe examples in your own work or work of colleagues where you see maybe more creative radical uses of disability law and policy or maybe to the kind of first question, how are you trying to disrupt some of these assumptions that are harmful in general did you want to jump in? (Off microphone)
ATTENDEE: When we're talking about how we can challenge some of the foundational assumptions of disability rights, I think sometimes a lot of the issues and things we can come across are because of at least within the legal system, an overreliance on the medical model of disability. And the role that you know sort of official diagnoses and things like that play, and I think that definitely needs to be challenged in a lot of ways.
But also how do we balance doing that while making sure that we're not accidentally sabotaging the roots that we do have available for making sure that people get the care and the treatment they have once they have unfortunately been roped into the system, because sometimes those official diagnoses are things that we end up having to rely on because the way the system is built.
And because the cases and the way things develop isn't always linear, if you try to push it forward in one area if something else hasn't caught up and moved forward at the exact same time, it can get complicated situations and how to deal with the need to challenge those foundations without having everything sort of new foundation in place.
JAMELIA MORGAN: It is a great question. We call it sometimes the duality of diagnosis, the double-edged sword of it. Reactions to that?
ATTENDEE: It's not quite a direct reaction to that, but it's kind of responsive to the to the prompt that you asked. My name is Bobby, I'm an attorney with Relman Colfax law firm in DC and I work on challenging zoning exclusionary laws. Which are often used to target various populations of people with disability using this idea of dangerousness as a pretext for discrimination. And I'm curious about your reaction to sort of how these cases are litigated and the context of this conversation.
Because on one hand it's like the explicit project of these cases to break down that conflation of dangerousness with disability.
But on the other hand it requires driving this sort of wedge between whomever we're representing, which we have to kind of make clear often as an evidentiary issue, these folks are not dangerous.
And there's this like obviously people who do -- may present some possibility of danger in some circumstances kind of as constricted by the state also deserve housing. And so I'm just curious about your response to that sort of tension within those sort of cases.
JAMELIA MORGAN: I was going to play professor, Bobby, and say does it have to be that doubling down. It seems to me you can contest dangerousness in that litigation context on both fronts, as applied decision to the zoning ordinances, as applied, and how it's used to keep group homes out of the community and as to a particular client.
I can only speak from the area of law that I know and my particular issue was with prison rights litigators, many of my colleagues and friends and the like. And there would be this gross construction of people with disabilities in an effort to meet the first amendment test.
Is there not a way to focus on structures as opposed to portraying your clients is psychotic and just the tropes it was just like a who are or movie just to meet a constitutional standard.
And I remember a local organizer had said it once in a community-based session and it was something to the effect of what can save you in prison would get you killed on the street, if this is the language that you're using.
Like that same construction of dangerousness that will get you access to medical care and treatment right under the 8th amendment would be a basis for police officers to use reasonable, air quotes, of course.
So we have to be careful. I was wondering, it seems -- knowing the incredible work that you all do, it seems that you're able to break up that dichotomy, even in the way you framed it. How do you feel like you're compelled to reify the dangerousness/not dangerousness hierarchy?
I'll say that I don't feel that I've had -- I don't feel like I've been confronted with a decision in which I, you know, felt that that was an issue in if a specific case so much as you know, I think what it is is there is a, having to -- the kind of screen for – the selection.
>> Yeah. Maybe history of past criminal involvement or history kind of in order to tell the story we want to tell, which is a, you know -- maybe it's just symptomatic of one case cannot also deal with the inequities within the criminal system.
But it's just something that feels like unnecessary really exclusionary on one hand sometimes, even if it's necessary for the case.
JAMELIA MORGAN: Yeah. Other comments?
KATE CALDWELL: In this conversation, I keep getting drawn back to the earlier comment about the law being overly reliant on medical models of disability and I'm wondering how much of this is the way that we understand and perceive disability in this country. And also not just reliance on the medical model, but on any model that's overly reductionist.
You can, and you can argue that there's an overreliance sometimes on the social model of disability. And in point of fact, one of the coauthors of the social models of disability said many years later, in 2015 I think it was, he published an article and said why are we still using the social model? Why haven't we moved beyond this?
I did this in the '90s, come on. Where's the next thing. So all models of disability or ways of understanding it are going to be reductionistic in some way shape or form. I think it's important to keep in mind that you don't need to use just one model.
They're not exclusive, except perhaps the medical model doesn't work with other models of disability.
But one conversation that happens in disability studies all the time is just because we critique the medical model of disability, which was called the individual model of disability.
I often refer to it as one of the deficit models of disability, just because we critique it, doesn't mean disabled people don't have medical needs, they don't need care, they don't need treatment, they don't need support. They do. It's a fact of our lived reality.
We need those things. So critiquing a medical model or any deficit model or any reductionist model, you can even critique that a minority group model doesn't work in particular situations where it is overly reductionist. And in fact we've seen disability justice advocates say you cannot equate race and disability.
They are not interchangeable experiences. Please stop doing that, right?
Like critique all of these models, it's really about how do we use them instrumentally and also how do we embrace more expansive approaches to understanding disability and most importantly, for where we are in this moment, how do we use that to inform and mobilize the law as a tool for good, instead of necessarily just a punitive one.
JAMELIA MORGAN: Microphone is coming.
ATTENDEE: I like that idea of not having to just rely on one or any -- being able to have a more sort of fluid, I guess.
KATE CALDWELL: It's the bisexual in me.
ATTENDEE: Fellow bisexual I get it. That's why I like it.
I can conceptualize how that's done in litigation when you're making arguments that apply to say an individual case, when you're able to take a set of facts and interpret them through multiple different lenses to tell a particular story.
I'm curious how that's done in a more, we'll say, like static form.
Say when you're looking at legislative reform on these issues, where something is going to be applied more broadly across a much broader audience when it has to be sort of put down in code. And how do you build in -- how do you build a framework that has sufficient enforceability that also allows for that level of nuance.
Because I feel that's where it can get really complicated.
But then if you try and have it be enforceability, then we're stuck trying to deal with that mess in those cases and it feels like a bit of a catch-22 cycle.
KATE CALDWELL: Yeah. From a policy perspective in the U.S., we do tend to take civil rights approaches to -- and the disability models that get applied in policy development tend to be those that are responsive to a civil rights approach. Whereas in international policy, it takes a human rights approach.
And so when you look at the UN Convention on the Rights of Persons with Disabilities otherwise known as the CRPD or the sustainability development goals, referred to as the SDGs, got to love the alphabet soup, you see the human rights approach that opens the door to thinking more about disability and the interesting thing about the CRPD, a lot of people, very rightly so critique international policy, especially UN policies as things that don't have teeth. How are they going to be implemented?
How are they enforceable, what are you actually going to do?
But the CRPD actually has teeth to it.
It was built with very specific enforcement guidelines, and punishment, for lack of a better word, when those aren't being followed. And the integration of disability into a substantial number of the sustainable development goals was a huge win, because then that put money behind it, right? And it put really stakes for people not complying with those agreements that they made in the SDGs, right? Sorry, I'm getting into a policy wonk area. I apologize. Sorry.
I'm coming back down.
But I think it has to do with sort of that frame that you're using, and we don't have to just look at the U.S. context for ideas. Because there is different countries around the world that are doing such cool things. And in the U.S. we kind of like stopped at the ADA and then we're like no, we're good.
That was actually the conversation around trying to get, you know, Congress to sign and ratify the CRPD for the U.S. The senators who were against it are like no, no, or sovereignty we have the ADA. Everyone around the world is copying the ADA and it's like the ADA is not the end-all/be/all, it's just one mechanism, one approach.
But right now because so many other countries have been involved and we aren't even at the table in the CRPD and the SDGs, they're doing some really cool stuff in our countries that we can learn from. And Cory spoke to this a little bit earlier as well. Gentleman yeah.
I think there's a couple maybe scholars that you might want to think about in terms of that kind of big meta question.
I'm thinking about it in the context of criminal law.
Kathryn McFarlane trying to disrupt the lawyerly way that data and evidence and disability by proof becomes just the way that we do our work. And so I'd reference some of that as kind of fodder for thinking this through.
We wanted to keep the conversation going and so because we're at the end of time, we thought that maybe it might make sense to, you know, give you a couple sort of resources for how we might continue to be a community, at least of people that are interested in this criminalization issue, sorting through these issues, sharing resources, ideas and questions. So if you're interested, get in touch with us through our website, crdjustice.org. Or of course any one of us we exist in a number of virtual or real-life spaces.
But a big part of what we're trying to do at the center for racial and disability justice along with important folks is build networks and communities to try and have these conversations offensively, not always defensively to think differently about some of these key foundational aspects of disability recognition, disability law and the like.
And its important intersections. And lastly just as a plug. If disability criminalization is happening and we know that it is, I think as disability law scholars, activists, attorneys, and the like, we need to do criminal law and criminal procedure like we need to be up to date on what's happening in those spaces, and to think about our advocacy as really intersectional.
Like so many of you all are doing. Whether it's housing and employment and the like.
KATE CALDWELL: I will also add that our center, we're always trying to build more spaces for people to connect and engage. So if you do, please follow our socials and we'll be sharing as many opportunities as we create them for other ways to connect and engage around these critical topics, because we also don't want to lose touch with you all and want to hear your continued work and advice and expertise on these issues as well, because we're all learning from each other in this space as it develops and grows into a moment.
JAMELIA MORGAN: Thank you all for the enlightening conversation.
(Applause)