12 Disability and the Criminal Legal System

Sandra M. Leotti, MSW, PhD

Elspeth Slayter, MSW, MA, PhD

This chapter explores the connections between disability[1], practices of imprisonment, and law enforcement in the United States. Social workers involved in criminal legal settings.

Throughout this chapter we use the terms “criminal legal system[2]” and “carceral system” rather than “criminal justice system” to describe policing, prosecution, courts, and corrections in the United States. This is more than just an issue of semantics or political correctness. Language is inherently political, and it shapes how people think. The phrase “criminal justice” reifies taken-for-granted assumptions that justice can be found through punishment and confinement.

Furthermore, as many activists and scholars have shown, contemporary carceral systems are a product of racialized and ableist historical processes and do not deliver justice but rather perpetuate injustice for the most marginalized among us.

In this system, social workers are often referred to as “forensic” or legal social workers. The National Organization of Forensic Social Workers (NOFSW) describes this field as having an application of social work to questions and concerns relating to the law and legal systems (criminal and civil) (NOFSW, n.d.). In this field, where possible, forensic social workers practice to empower disabled individuals within socio-legal environments and try to change socio-legal environments for the better. This work can range from enhancing disabled clients’ functioning and problem-solving to brokering resources for them. At the mezzo and macro levels, respectively, this can look like working to develop or improve service systems for disabled disclients or developing policies that promote disability justice. Within this sphere, forensic social workers commonly function as clinicians, consultants, case managers, advocates, trainers and brokers, among other roles (Maschi & Leibowitz, 2018). This chapter primarily focuses on practice with disabled clients in criminal legal settings.

Introduction

Social workers in practice with disabled clients may be involved in preventative and advocacy efforts, such as jail diversion, to keep clients out of correctional facilities or to ensure their protection and rights if they are in these facilities. Social workers may also participate in policing, which is a controversial area of practice. Additionally, in the context of criminal courts, social workers may practice in prosecutor’s offices as victim witness advocates or forensic interviewers or in specialty problem-solving courts. Defense attorneys may also partner with social workers under attorney-client privilege as part of the legal representation of defendants. Within delinquency placements or correctional settings, social workers may work as case managers, clinicians or in other staff roles. Re-entry programs may also hire social workers in these roles. Given the over-representation of disabled people among those who are involved in criminal legal systems (as we will outline below), social workers in these settings need to develop a critical awareness of disability culture.

General Context

In the United States today, there are over 2.3 million adults behind bars in jails and prisons, and just under 2,000 young people are locked in facilities for youth (Sawyer & Wagner, 2020). Mass incarceration has swept up the U.S. to such a degree that we are known globally for holding more people in correctional facilities than any other country in the world. However, when we think of mass incarceration, we would be remiss if we did not include the more than 4.5 million people who are under some form of community supervision. Community supervision includes parole, probation, and pretrial supervision (Jones, 2018). Understanding mass incarceration beyond prisons and jails, and including community supervision is important because it gives us a more complete picture of punishment in the United States and shows the expansive reach of the criminal legal system.

It is relatively well known that certain populations such as poor people and people of color are disproportionately impacted by mass incarceration. For example, Native women are disproportionately overrepresented in jails and prisons. In 2010, they constituted 2.5% of women in prisons and jails yet were just 0.7% of the total U.S. female population (Wang, 2021). Rarely discussed is the impact of the criminal legal system on disabled people. However, Americans with disabilities disproportionately fill the space in jails and prisons, and are overrepresented at all points of interaction with the criminal legal system, in both youth and adult settings (Oberholtzer, 2017). Disability, situated alongside other intersecting lines of stratification such as race, class, and gender, is central to understanding the complexities of mass incarceration today.

Historically, disabled bodies have been policed in various ways, resulting in a disproportionate number of people with disabilities being confined in carceral spaces, be it institutions or prisons (Appleman, 2018; Chapman, 2014). While many large state institutions for people with psychiatric or intellectual disabilities closed in the 1980s and onward as a result of deinstitutionalization, they reopened in many states as prisons and detention centers (Ben-Moshe, 2011) Notably, this occurred alongside a broader and rapid increase in incarceration. Next, we will discuss the social and political mechanisms that spawned the mass incarceration of disabled people.

Historical Overview

The 1970s marked a period of systematic mass imprisonment and heavy reliance on formal social controls targeted primarily at marginalized populations (Sokoloff, 2005). Mass incarceration can be largely attributed to three intersecting phenomenon that emerged in the latter half of the twentieth century (Leotti, 2020). The first is the war on drugs, which began in the 1970s and brought about punitive social policies and sentencing enhancements, such as “three strikes, you’re out” laws and mandatory minimums. Sentencing enhancements have been adopted on both the federal and state level and inflict harsh penalties for both drugs and public order offenses[3], which are commonly associated with drugs (Zhang et al., 2009). Mandatory minimums have replaced treatment and community service options when drugs are involved and reflect a policy choice to treat substance use and addiction as a criminal issue rather than a public health problem (Mauer & King, 2007). Such sentence enhancements have increased the number of people in prison, as well as the amount of time they spend there (Muehlmann, 2018). The second issue is the growth of the prison industrial complex, which, simply stated, is a complex web of relations between carceral institutions, policy makers, and for-profit prison corporations that results in financial gain through the incarceration of marginalized populations. The third of these phenomena is neoliberal globalization, which has brought about a fundamental shift in the role of the state. Neoliberal transformations in the economy have contributed to poverty in the United States and have brought an increasing number of poor and marginalized people into contact with the criminal legal system (Wacquant, 2009).

Resting on the central tenets of individualism, choice and responsibility, market-driven economics, and minimal government, neoliberal ideology has driven shifts in policy agendas from a Keynesian approach, which saw government as necessary to ensure the basic social well-being of all, to one of deregulation and privatization (Abramovitz & Zelnick, 2018). Neoliberal ideology thus erodes government commitment to social welfare in favor of policies that focus on individual responsibility and market-based rationalities, and it brings with it a hyper focus on the individual as both the cause of and solution to social problems (Brown, 2015). Consequently, neoliberal policies have produced an increased reliance on disciplinary measures to manage manifestations of social exclusion, such as poverty and homelessness (Wacquant, 2009). Mass incarceration has thus occurred concurrently with decreased spending in the areas of social services, education, and health care.

There is a direct relationship between these three phenomena—sentence enhancements, growth of the prison industrial complex, and neoliberal globalization—and the increased criminalization/incarceration of disabled people. The past six decades have seen widespread closure of state mental hospitals and other institutional facilities that serve people with disabilities—a shift often referred to as deinstitutionalization. While deinstitutionalization should be seen as a positive development, it was not accompanied by the public investment necessary to ensure that community supports were made available for people with disabilities to live independently in the community. As a result, many disabled people, particularly those with mental health conditions have been swept up into the criminal legal system, often for non-violent and minor infractions such as sleeping outside (i.e., homelessness) and atypical reactions to social cues which become interpreted as disorderly conduct. Additionally, the war on drugs has criminalized[4] behaviors sometimes related to disability such as substance use, which can be a method of self-medication for disability related conditions.

The historical processes of ableism, capitalism, and racism have pushed disabled people to the economic margins of society. Historically, people with physical and psychological behaviors and appearances that do not conform to dominant norms have been segregated and isolated, and have been more vulnerable to shifting mechanisms of surveillance and control (ableism). Disabled people have thus been shunted out of the labor market and into institutions (capitalism). The current day iteration of exclusion manifests itself in mass incarceration of the same people once shut away in institutions for psychiatric and developmental disabilities. Furthermore, the people in these institutions do not represent all segments of society – the majority are poor and people of color (racism). This historical (and ongoing) exclusion from the labor market (ala processes of segregation and institutionalization) alongside the onset of neoliberalism has had a profound impact on the material well-being of disabled people. Currently more than half of disabled people live in long-term poverty (Purnell, 2021). Poverty is known to create a number of disabling conditions and to be linked to behaviors that are commonly criminalized, such as petty theft or sleeping on the street (Chapman, et al., 2014). Coupled with an increasing divestment from public services (e.g. health care, housing services, employment protections, and other social welfare entitlements) disabled people have been disproportionately swept up in the criminal legal system. Such a material historical analysis helps us counteract the often taken for granted assumptions about criminality (those that deviate from ableist understandings of how body-minds are “supposed” to look and behave) that have been attached to disabled people for centuries. Furthermore, it helps us see that criminalization is a product of social and economic processes rather than that of individual deviance and pathology.

Prevalence of Disability Community in the Criminal Legal System

As discussed previously, disabled people are disproportionately impacted by and involved in the criminal legal system (Oberholtzer, 2017). While disabled people make up 26% of the population in the United States, they represent up to half of people killed by police, over 50% of incarcerated adults, and up to 85% of incarcerated youth (Purnell, 2021). We also know that people with intellectual disabilities are at a higher risk of wrongful convictions and death sentences in part due to higher likelihood of false confessions or less capacity to participate adequately in their defense (American Civil Liberties Union, 2022). This problem persists despite the 2002 Supreme Court ruling that the execution of this population violated the Eighth Amendment of the Constitution, which relates to cruel and unusual punishment.

People with disabilities come into contact with the criminal legal system as suspects, defendants, incarcerated persons, victims, and/or witnesses. Compared to people without disabilities, people with disabilities are more likely to experience victimization, be arrested, be charged with a crime, and serve longer prison sentences once convicted. These trends are even more profound for disabled people with intersecting marginalized identities, such as people of color, women, poor people, and those who identify as LGBTQ (Vallas, 2016).

According to the Bureau of Justice Statistics, people incarcerated in prisons and jails are three to four times more likely than the general population to report having at least one disability, with an estimated 30-40% of incarcerated individuals reporting at least one disability and about 15% reporting multiple disabilities (Bronson et al. 2015). Disability types included hearing, vision, cognitive, psychiatric, and mobility. Among the most commonly reported disabilities among inmates are cognitive disabilities (e.g., Down syndrome, autism, dementia, intellectual disabilities, and learning disabilities). In fact, incarcerated individuals are four to six times more likely to report a cognitive disability than the general population. Mobility disabilities are reported among 10% of incarcerated people and between 5 – 10% report being vision and hearing disabilities. Mental health conditions are also highly prevalent among the incarcerated population, with about 50% of inmates reporting a psychiatric disability (Schlanger, 2017). In addition, 40% of inmates report having a chronic medical condition such as diabetes, cancer, heart disease, etc. (Schlanger, 2017) and over 50% of incarcerated disabled people report having a co-occurring chronic condition (Bronson et al., 2015).

In addition to being overrepresented in carceral facilities, disabled people are more likely to experience violence at the hands of criminal legal officials, including prison guards and police officers (Guy, 2016; Vallas, 2016). Indeed, many high-profile instances of police brutality and police killings, such as those of Freddie Gray, Eric Garner, and Sandra Bland involve people with disabilities. It is estimated that one-third to one-half of all people killed by police are disabled (Perry & Carter-Long 2016). Police use of force against people with disabilities is a widespread yet under-discussed issue. Perry and Carter-Long (2016) found that the media often ignore disability identity when reporting on police violence. Understanding disability as a factor shaping interactions with police is important because it intersects with other factors such as race, class, and sexuality to amplify stigma, discrimination, and the risk of police violence. Including an analysis of disability provides more holistic accounts of the lives of victims of police brutality, a more nuanced understanding of the problem, and allows new solutions emerge.

To illustrate the importance of considering intersectionality when analyzing disability and the criminal legal system, Vallas (2016) states:

The interplay of disability with race, poverty, sexual orientation, and gender identity further complicates the link between disability and the criminal justice system. There is a disproportionate incidence of intellectual and developmental disabilities among low-income racial and ethnic minority populations, which have higher rates of police involvement in their neighborhoods than higher-income neighborhoods. In 2015, black men between the ages 15 and 34 were nine times more likely than Americans of other races to be killed by police officers. And a 2014 report found that 73 percent of LGBT people and people living with HIV had had in-person contact with the police in the past five years. Of those individuals, 40 percent reported verbal, physical, or sexual assault or hostility from officers (p. 6).

Criminal Legal System Trends, Cultural Concerns, and Relevant Policies

The unique needs and challenges of disabled people are often overlooked or neglected when they come into contact with the criminal legal system. Once entangled in this system, disabled people face unique challenges, including biases, inaccessible services, and lack of accommodations which further perpetuate the length and consequences of criminal legal involvement. Despite long standing federal disability laws, such as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, that mandate “equal access to programs, services, and activities” (Department of Justice, 2010, p. 110) for people with disabilities while in custody, people with disabilities are often deprived of medical care, as well as necessary supports, services, and accommodations while interfacing with law enforcement, the courts, and while incarcerated (Oberholtzer, 2017; Vallas, 2016).

Legal and law enforcement professionals often lack experience and accurate knowledge about disability which can lead to misidentification of disability, inaccurate assumptions about competency and credibility, and a heightened risk of violence (Oberholtzer, 2017). Lack of knowledge regarding disability among these professionals may also lead to false confessions, lack of necessary accommodations, inappropriate placement in institutions, and the inadvertent waivers of rights. Furthermore, poor conditions in jails and prisons as well as inadequate access to health care and mental health treatment can exacerbate existing conditions and lead to new physical and mental health problems (Chandler, 2003). For example, limited access to regular physical activity, a common condition of confinement has been shown to be detrimental to overall health and to intensify existing physical disabilities (Morgan, 2017).

Policing and Law Enforcement

Symptoms of psychiatric, intellectual, physical, or sensory disabilities are often mistaken for non-compliant or hostile behaviors by law enforcement professionals who are not trained in recognizing the signs of disability or intervening in disability-related crisis situations. For example, in 2009 the police were called on Antonio Love, a d/Deaf[5] individual, for loitering in the bathroom at a Dollar General store (Perry & Carter-Long, 2014). After knocking on the bathroom door, ordering Love to come out, and getting no response, the officers pepper sprayed under the door, forcibly opened the door, then repeatedly tasered Love. While the officers viewed Love’s non-response as non-compliance, the reality was that Love could not hear the officers.

d/Deaf people cannot be expected to respond to commands of police, for example, when delivered out of sight. Their inability to do so heightens their risk of violence when interacting with the police. Many d/Deaf people also use their eyes, hands, and body to communicate. Police officers often misunderstand these components of d/Deaf culture as threatening and aggressive – once again intensifying the risk of violence (Lewis, 2014). The ADA mandates that law enforcement officers take appropriate steps to communicate effectively with d/Deaf people by providing sign language interpreters and/or auxiliary aids. Yet there is a disquieting number of law enforcement assaults against d/Deaf people that occur on a regular basis (Lewis, 2014). There is urgent need for police officers to better understand Deaf culture and how to communicate with members of the d/Deaf community.

People with intellectual and developmental disabilities, such as Autism and Down syndrome, are more likely to encounter the police and often have trouble understanding, responding to, and obeying police orders (Hurst, 2015). This may be misinterpreted as defiance and often results in an unnecessary use of force and arrest. For example, in 2012 deputies in California assaulted and wrongfully arrested Antonio Martinez, a Latino man with Down syndrome who they suspected might be involved in a domestic violence (DV) dispute (Stapleton, 2012). Martinez had no involvement in the DV incident and was simply walking between his home and his family’s bakery while wearing a hoodie. When he did not respond to the police commands, the police peppered sprayed him and beat him with a baton before arresting him. The sheriff’s department defended their actions as a way “to gain compliance and prevent a possible escape” (Stapleton, 2012, para. 8). In 2011, another man with Down syndrome, Gilberto Powell, was walking home one evening when he was stopped by Miami police because they saw a “bulge” in his pants and assumed it might be a firearm (Perry & Carter-Long, 2016). The bulge was a colostomy bag. While attempting a pat down, Powell attempted to flee and was beaten on the grounds of resistance and noncompliance. Similarly, individuals exhibiting symptoms of certain conditions such as epilepsy, cerebral palsy, and diabetes are often mistaken as threatening or drunk and subjected to inappropriate and hostile police encounters (Perry & Carter-Long, 2014).

By far, the most common type of interaction between the law enforcement and disabled people involved psychiatric disabilities (Vallas, 2016). Due to a lack of appropriate community resource systems for calling for help (other than 911) the police are often the first responders to a person experiencing a mental health crisis. It is estimated that up to half of officer shootings involved someone in a mental health crisis (Perry & Carter-Long, 2016). In many of these cases, 911 was explicitly called to help a person get medical treatment, not for the police. Despite their frequent involvement in mental health crises, police responses are inadequate and harmful (Oberholtzer, 2017). Certainly, police need better training to recognize and handle mental health crises. One common training used in over 2,700 US communities is the Crisis Intervention Team (CIT) model (Hurst, 2015). CIT is a 40-hour training that teaches officers how to deal with and de-escalate mental health crises when they encounter them (Hurst, 2015; Singal, 2014). The training also includes a component preparing officers for situations in which people do not respond to commands, which may be common among neurodivergent people or intellectually disabled people. While such interventions are a timely and necessary step in the right direction, given the militarization of the police and racial and ableist biases among officers, CIT trainings are unlikely to create a police force that is adequately equipped to deal with mental health crises and the needs of individuals with intellectual and developmental disabilities. In fact, there are documented cases in which officers trained in mental health procedures continued on to kill disabled people (Purnell, 2021).

Therefore, we argue that police involvement in mental health crises should be reconsidered entirely. Time and again we see instances in which police escalate situations to the point of deadly force, resulting in disabled people, particularly disabled people of color disproportionately and pointlessly losing their lives. It is estimated that anywhere between 20 – 50% of people killed by police have a disability (Morgan, 2022). Social workers, mental health response teams, and other trained professionals are more appropriate than a militarized police force in handling mental health crises. Indeed, research shows that accessible and comprehensive social services and mental health treatment systems could divert disabled people from criminal legal involvement and prevent the criminalization of people with mental health disabilities (Vallas, 2016). Such services should include not only crisis services but clinical treatment; medications; substance use treatment; community support services, such as intensive case management; safe and affordable housing; and vocational supports. However, these services are only as effectives as their availability and, unfortunately, few communities in the United States have the funding for this level of comprehensive services. Spending on the criminal legal system continues to outweigh spending on many other critical services and programs, including education, mental health and substance use services, housing, and infrastructure (Lazere, 2021).

Court Systems

After interaction with law enforcement, disabled people experience enormous barriers in the court system. At every stage, from arraignment to sentencing, disabled people face lack of accessibility and are often not provided with necessary accommodations resulting in inadequate representation and misunderstandings regarding the consequences of sentencing or plea agreements. As discussed in this book’s policy chapter, The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability and mandates that people with disabilities be provided with equal opportunity to participate in all aspects of life. Title II of the ADA applies to public and governmental entities and the programs and services they provide, including court services and court proceedings (Department of Justice, 2010). The law requires that reasonable accommodations are provided when needed. For example, courts must provide “effective communication,” for example, in the form of qualified sign language interpreters to all persons participating in court processes including witnesses, litigants, jurors, and companions and support people of persons participating in the legal process (Department of Justice, 2010).

Still lack of access and accommodation is widespread in the American court system (National Center for Access to Justice, 2020). According to the 2020 Disability Access Index, half of the states do not provide information regarding requesting accommodations on their state judiciary websites (National Center for Access to Justice, 2020). Only about 30 percent of states provide funding and conduct trainings for judges and court staff on how to assist people with various disabilities, and just five states require any type of ongoing training for judges and court staff on the legal requirements for providing equal access to disabled people. Eleven states do not require that service animals be permitted in courthouses at all times and without advance notice. In 16 states courts can charge disabled people for necessary auxiliary aids (for example: large print documents, braille printing, closed captioning on television monitors in public areas, mobility devices, etc.). And courts in a handful of states are still permitted to charge those who are d/Deaf or hard of hearing for their own sign language interpreter, in violation of the ADA (National Center for Access to Justice, 2016, 2020). While not captured in the 2020 access report, as of 2016 less than 30 percent of courts listed psychiatric disability on their websites as a basis for providing needed accommodations (National Center for Access to Justice, 2016). Given the prevalence of mental health conditions among those who come into contact with the legal system, this is especially troubling.

When defendants with disabilities are deprived of necessary accommodations and communication access, they are left unable to understand or participate in their own cases and are more susceptible to wrongful arrests and convictions. For example, in Arlington, VA Abreham Zemedagegehu, a d/Deaf immigrant man whose first language was Ethiopian Sign Language, was held in county jail and was not provided access to an interpreter during his time awaiting trial or while he was in court. Lack of appropriate representation led him to serve six weeks of jail time for a crime he did not commit (Zapotosky, 2015). Lack of training and knowledge for how to work with disabled people and how to provide accommodations often results in inadequate representation, denying individuals their constitutional right to a speedy trial, legal representation, and to be informed of the accusations against them. Importantly, the failure to provide accessibility in the court system impacts not only disabled people who are charged with crimes but also those who are victims of crimes, those who are litigants, those who serve on juries, and those who work in courtrooms.

Therapeutic Jurisprudence

There are significant obstacles and serious ethical concerns for social workers when considering work in criminal legal settings. Courts are run by legal professionals while other carceral facilities and programs are run by security staff according to rules never designed for or intended to ‘help.’ Therefore, social workers planning for a career in criminal legal settings, be it with youth or adults, need to be aware of the therapeutic jurisprudence framework used in specialty courts and the movements that have been connected to it domestically and internationally in court-based systems.

A primary aim of this framework is to better meet the needs of people involved with criminal legal systems – especially people who are repeatedly caught up in those systems (Arstein-Kerslake & Black, 2020). This is a philosophy and practice that considers both the therapeutic and anti-therapeutic properties of laws. Therapeutic jurisprudence also considers public policies (such as sentencing guidelines), legal institutions and legal and dispute resolution systems. Overall, the goal of therapeutic jurisprudence is a healthy outcome – emotionally and physically – for the criminalized person in all interactions related to the legal case, and in the case itself. In order to obtain this healthy outcome, the court needs to provide healthy options that do “not conflict with other normative values of the legal system” (Rottman & Casey, 1999, p. 12). It is important to note that the therapeutic jurisprudence framework is different from the restorative justice concept, which is often used outside of the court context, such as in schools. We think about restorative justice as a process that strengthens relationships, fosters a sense of belonging among program participants, provides a system of collective accountability – all of which helps to repair harm that has arisen from individual or group behaviors.

In the course of the therapeutic jurisprudence process in specialty courts, the role of an interdisciplinary team of judges, court personnel, lawyers and, often, forensic social workers, are all seen as therapeutic agents while interacting with the criminalized individuals. The major argument for taking this approach is that taking care of a person’s needs in addition to the needs of the legal case results in more effective case dispositions. As we have discussed above, many of those who are involved in the criminal legal system are disabled (Baldry, 2014). When we look at courts following therapeutic jurisprudence frameworks, such as mental health courts, an even higher percentage of people are disabled as these systems are established specifically for addressing the needs of those with disabilities (Spaulding et al., 2000). Therefore, disability often plays an outsized role in systems that embrace therapeutic jurisprudence whether it is explicitly recognized or not (Arstein-Kerslake & Black, 2020). The therapeutic jurisprudence concept has been recommended as laudable as an approach to empower criminalized individuals with intellectual and developmental disabilities through the creation of a specialty treatment court in the Canadian context (Marinos & Whittingham, 2018). However, others have raised concerns about the ways in which therapeutic jurisprudence may prioritize the decisions and processes of professionals as well as simultaneously undermining the self-determination of disabled people involved in the criminal legal system (Arstein-Kerslake & Black, 2020). Additionally, the therapeutic jurisprudence model is not applied to all people being processed by the courts; it is only applied to those who have been selected for access to specialty services – often excluding people involved in more violent crimes. More consideration is needed regarding how this framework is applied to different members of the disability community.

For social workers interested in advocating for administrative and legislative changes on behalf of disability justice principles, Rottman and Casey (1999) discuss the ways in which this framework is applied at that level:

“Therapeutic jurisprudence may also be practiced at the organizational level of the court by devising new procedures, information systems, and sentencing options by establishing links to social service providers to promote therapeutic outcomes. For some areas of law and court policy, the practice of therapeutic jurisprudence principles requires changes to State statutes or to court rules, policies, or procedures that apply across courts (Rottman & Casey, p. 12).”

Jails and Prisons

As with every part of the criminal legal system in the US, prisons and jails are ill equipped meet the diverse needs of people with disabilities, and often perpetuate horrendous discrimination and abuse. At the point of entry into jails and prisons, it is well-documented that there is either a lack or under-use of disability screening (Murphy, Gardner & Freeman, 2017). This results in under-identification of this population as well as their basic health and disability-related needs. Living in a carceral facility entails activities of daily living (ADLs) that are particularly challenging for people with physical or developmental disabilities. So much so that disabilities which can be easily navigated in a community setting can become serious barriers to health and safety while in prison. For example, in addition to regular ADLs such as bathing and dressing, prison life often involves additional ADLs such as dropping to the floor for alarms, enduring excessive background noise, jumping up and down from an upper bunk, and being able to hear and promptly follow orders (Blanck, 2017). States have a responsibility under the ADA to offer accessible programs and services and to provide reasonable accommodations and effective communications for people with disabilities. Yet, aside from litigation, there appears to be few mechanisms of accountability for ensuring ADA mandates in America’s jails and prisons.

Jails are locally operated, short-term holding facilities for individuals awaiting trial or sentencing or for those serving sentences of one year or less. Jails currently incarcerate large numbers of people who have not yet been convicted of a crime (Sawyer & Wagner, 2020). Individuals who cannot afford bail make up the vast majority of those detained in jails as a form of pretrial incarceration. Many disabled people who are detained in local jails are not awaiting trial; they are awaiting a transfer to a hospital or other health facility, most often a mental health facility, which may currently be overcapacity (Vallas, 2016). In this way, jails are being used as substitutes for mental health facilities (Rembis, 2014). However, unlike mental health facilities, jails do not have the resources or staff training to adequately address the needs of individuals experiencing psychiatric disabilities or mental health crises (Human Rights Watch, 2015).

Additionally, despite federal disability protections, jails often deprive disabled people of access to necessary medical care as well as needed supports and accommodations, which can worsen existing health and mental health problems (Pope et al., 2007). Take, for example the case of Abreham Zemedagegehu, the d/Deaf Ethiopian immigrant discussed above. During his six weeks of jail time, he regularly missed meals because he could not hear the announcements for mealtimes. Because he was unable to communicate with the staff, he was essentially denied access to medication he needed for chronic pain (Zapotosky, 2015). Obviously, the system of pretrial incarceration and using jails as holding cells for people in need of mental health care are negatively impacting disabled people, for whom targeted resources and services are more appropriate. A more robust health and mental health care system, as well as the eradication of pretrial detention and the cash bail system would decrease the unnecessary and unjust detainment of poor people with disabilities.

Unlike jails, prisons are state or federally run institutions that typically incarcerate individuals with felony convictions or those serving sentences longer than one year. As in jails, disabled prisoners are entitled to reasonable accommodations and equal access to programs, services, and activities under the ADA and Section 504 of the Rehabilitation Act. However, there are documented widespread and persistent failures to ensure accessibility and to provide needed accommodations in carceral facilities across the United States (Guy, 2016). Medical care and accommodations for disabled people in prisons is either inconsistent, sub-par, or routinely denied (Blanck, 2017).

The Eighth Amendment, which prohibits cruel and unusual punishment, requires that mentally ill prisoners, including prisoners who become mentally ill while in prison, receive access to proper diagnoses and treatment. Nevertheless, widespread neglect of the mental health needs of incarcerated individuals appears to be the norm (Morgan, 2017; Steinberg, et al., 2015; Seevers, 2016). From a paucity of qualified mental health professionals, to withholding or discontinuing medications, to the inhumane use and overuse of solitary confinement, the human rights of people with psychiatric disabilities are inordinately violated while existing in a prison (Seevers, 2016). And for those who do not enter with pre-existing conditions, because of the violent and traumatizing nature of prison life, many people develop mental health diagnoses while incarcerated (Singal, 2014). The use of solitary confinement provides a profound case in point.

Despite the documented psychological harms of segregation and solitary confinement, especially on young people and disabled people, it continues to be a prevalent practice in many jails and prisons, including facilities for youth (Guy, 2016). People who spend long stretches in solitary often experience depression, anxiety, and psychosis (Berman, 2016). Many disabled people are held in solitary confinement as a substitute for appropriate accommodations (Vallas, 2016). There have been countless reports of abuse and neglect of disabled people while in segregation and solitary confinement, including prolonged isolation, deplorable conditions, inadequate care, increased self-harm and suicide attempts, and death (Guy, 2016). The case of Kalief Browder serves as a tragic example of the harms of solitary confinement.

Sixteen-year-old Browder spent three years on Rikers Island awaiting trial for an alleged robbery only to have his case dismissed. During his time on Rikers, he spent almost two years in solitary confinement and suffered abuse from the officers and other prisoners. While in solitary, he made several suicide attempts which were disregarded as attempts to manipulate the officers (Berman, 2016). When he was released, he suffered from symptoms of Post-Traumatic Stress Disorder (PTSD) and within two years completed suicide (Bonnerman, 2015). Kalief’s family articulates his suicide as a byproduct of the torment he experienced on Rikers from which he could not escape after he left (Berman, 2016). Advocates argue that the imposition of restrictive conditions on inmates with disabilities and those with a mental illness violates the Eighth Amendment prohibition of cruel and unusual punishment, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973. As social justice minded social workers, we must participate in the fight for eliminating the use of segregation in our nation’s jails and prisons.

Doing time is difficult and traumatizing for everyone. Jails and prisons are violent, chaotic, and overcrowded facilities. One can imagine how difficult it is to maintain emotional and physical well-being in the context of exploitation, lack of control and privacy, a paucity of meaningful activities, and limitations on contact with family and friends. The difficulties of maintaining one’s health and safety while incarcerated are particularly difficult for disabled people. They have unique needs for special programs, facilities, and extensive and varied health services that often go unacknowledged or unmet. When formal accommodations are absent, incarcerated people with disabilities must often resort to obtaining informal accommodations such as paying other prisoners for help with ADLs (e.g., pushing a wheelchair or signing for a d/Deaf person) (Blanck, 2017).

Research shows that prisoners with disabilities are at an increased risk for safety threats and inadequate services while incarcerated (Blanck, 2017). For example, prisoners with disabilities have higher rates of injuries compared to prisoners without disabilities. In addition, incarcerated people with disabilities are more vulnerable to exploitation and victimization by other incarcerated individuals and prison staff. Furthermore, the widespread lack of reasonable accommodations means that disabled people are less able to engage in programs and activities that are offered to other prisoners. Poor and often inhumane conditions in jails and prisons, combined with inadequate access to reasonable accommodations and health care, often exacerbate existing conditions and lead to further physical and mental health problems that did not exist prior to incarceration (Chandler, 2003). As such, incarceration itself can be understood as creating disabling conditions (Chapman et al., 2014); it is “both detrimental for people with disabilities and responsible for creating new experiences of disabilities” (Ware et al., 2014, p. 164).

Blanck (2017, p. 320) outlines seven best practices for prisons that may help ensure appropriate accommodations for incarcerated people with disabilities. These include:

  1.  ADA self-evaluation plans: develop and adopt a system-wide ADA self-evaluation plan.
  2. Disability identification and monitoring: identify and track inmates with disabilities, their accommodations and ADA grievances, and evaluate accommodation requests with consideration of the inmate’s preferred accommodation.
  3. Accommodation implementation: implement an ‘Inmate Helper and/or Aid’ certification training program to assist in the provision of accommodations for inmates with disabilities.
  4. ADA training: provide staff training on ADA disabilities.
  5. ADA coordinators: designate facility ADA coordinators with accountability for monitoring and sustaining ADA-related outcomes.
  6. ADA notice: disseminate information in accessible formats to inmates about their ADA rights and responsibilities.
  7. ADA accountability: state prison leaders foster staff accountability with respect to the rights of inmates with disabilities under the ADA.

Practices such as those listed above are crucial given the disabling effects of incarceration. They are also practices that social workers can be active in implementing, facilitating, and monitoring.

Reentry

Most disabled people who are incarcerated are eventually released, and their experiences of reentering society have uniquely challenging dimensions, especially when they are denied access to vocational and release planning while incarcerated. The challenges disabled people face in reentry can be formidable as the culture of punishment and exclusion continues post-incarceration.

Incarcerated people, in general, face significant barriers upon re-entering society, including stigma, lack of resources, and a plethora of “collateral consequences” while reintegrating into their communities— “laws and regulations that serve to diminish the rights and privileges of those convicted of crimes” (Travis, 2002, p. 16). For example, formerly incarcerated people are legally discriminated against in employment and housing, and are denied access to public benefits, such as student loans and social welfare assistance (Brown & Patterson, 2016). In most states they are refused the right to vote (Miller & Stuart, 2017). Further, research shows that being imprisoned for one year reduces a person’s life span by two years (Wildra, 2017) and reduces annual wages by 40% (Pew Charitable Trusts, 2010). In effect, collateral consequences serve to restrict the mobility of ‘offenders,’ limit options for survival, and reinforce their ‘criminal’ status. When these barriers are compounded by disability, people with disabilities face almost insurmountable obstacles while attempting to re-enter their communities after being incarcerated.

Some correctional programs and services, such as vocational and pre-release planning programs, have been shown to facilitate a smoother and more successful reentry experience for individuals upon release from jail or prison. However, similar to their widespread lack of access for health and mental health treatment, disabled people are often denied access to such programs while incarcerated or are placed in programs without accommodations (Seevers, 2016). For example, many incarcerated people with psychiatric disabilities are often released with no plan for reintegration, including no prescriptions for medications and no referrals for mental health services or housing supports (Rembis, 2014). The difficulties formerly incarcerated disabled people face are compounded by lack of pre-release assistance in applying for necessary social supports such as Medicaid and SSDI, which can takes months to become eligible for on the outside. Additionally, the absence of reasonable accommodations for prisoners with disabilities in educational, vocational, work-release, and reentry programs, is associated with increased levels of recidivism (Blanck, 2017). In this way ableism in prisons perpetuates discrimination and lack of access once released and creates the conditions for re-incarceration.

Voices/Perspectives of Disabled People in the Criminal Legal System

Given the disempowering nature of involvement in the criminal legal system and the virtual silencing and invisibility of disabled people in carceral spaces, it is crucial that we amplify the voices of disabled people. This section provides a variety of links to videos that center the voices and experiences of criminalized disabled people. We encourage you to peruse their stories in order to humanize the data presented throughout this chapter.

Voices of Disabled Prisoners:

This section includes three short video clips of disabled prisoners. Each person shares their experience of incarceration and the consequent disability specific challenges. Most members of the general public will never enter a prison or jail and will have no firsthand knowledge of how disabled inmates fare inside them.

In the first clip (02:24) we hear from Brenda Charity who is an older adult with a mobility disability. Brenda discusses the experience of having needed accommodations taken away while in prison. https://www.youtube.com/watch?v=3gRSKZ5Xr3w&list=PLLSb3deWSkYzNa3NrRAIMFpNkEAfipY3W&index=13

In this second clip (03:04), Tyrone Gathings shares some of the challenges with having a vision disability while in prison, and his struggles with getting accommodations in order to participate in services and programming. https://www.youtube.com/watch?v=mixJAS2bJxs&list=PLLSb3deWSkYzNa3NrRAIMFpNkEAfipY3W&index=14

In the final clip, we hear from Ricardo Rodriguez who has a psychiatric disability. Ricardo discusses his experience of being punished, rather than treated, for self-harm and suicide attempts while in jail.

Ricardo Rodriguez (4:41): https://www.youtube.com/watch?v=a0Q_4y6YCSQ&list=PLLSb3deWSkYzNa3NrRAIMFpNkEAfipY3W&index=18
Voices from Segregation:

This next section includes four short clips which include the voices of disabled people who have experienced segregation and solitary confinement while incarcerated. They all discuss the torture of solitary and the enduring impact of being locked alone in a small space for a long period of time.

Eldorado Brown (02:56): https://www.youtube.com/watch?v=swKsb-ichxA&feature=youtu.be
Daniel Perez (02:54): https://youtu.be/zmzSjbKu6UI
Justin Rueb (03:56): https://youtu.be/6e-DKlt-90Q
Five Mualimm-ak (03:36): https://youtu.be/DJZQAd5dkOs

Voices of Inmates with Mental Health Disabilities:

In this section we look at the experience of navigating a psychiatric disability while incarcerated. This eight-minute clip from the Amplifying Voices of Inmates with (AVID) Jail Project presents images and stories that bring attention to the crisis of mental health in the criminal legal system. We hear from both advocates and inmates with mental illness. https://www.youtube.com/watch?v=Hjfu2VR62tY&list=PLLSb3deWSkYzNa3NrRAIMFpNkEAfipY3W&index=21

Voices on Release and Reentry:

This short documentary (34:22), “On The Outs: Reentry for Inmates with Disabilities”, is produced by the AVID Prison Project. On The Outs follows three inmates with various disabilities, including vision impairment, brain injury, and a mental illness, through all stages of the reentry process. The documentary depicts each person’s experience at three points: in prison prior to release, on their release date, and life on the “outs” after release. The film is intended to raise awareness about people with disabilities in prison, inspire communication about much-needed reentry reform, and encourage collaborative relationships among inmates, prison systems, advocates, and other interested stakeholders to address this issue. https://www.youtube.com/watch?v=7WukbvDKTdk

Application of Theoretical Perspectives and Practice Model

Back in the introductory chapter of this textbook, you learned about the core principles of empowerment-oriented social work practice with the disability community: community inclusion, self-determination, dignity of risk, circles of support and “nothing about us without us.” We argue that these principles are important when practicing with people involved in criminal legal systems, albeit in ways you might not immediately think about. In fact, these guiding principles are even more crucial for social workers to embrace in practice in these settings given the disempowering nature of the criminal legal system.

When we talk about community inclusion, we are talking about the idea that disabled people are valuable members of their communities who have a right to live and work in the community inasmuch as that is possible. We know that the disability community has traditionally experienced more institutionalization, and that this has been even more of an issue for disabled people of color. When we think about community inclusion in the context of social work with disabled people involved in the criminal legal system, our first instinct might be to focus on pre-trial or sentencing work that addresses either keeping people in the community or getting people back into the community. This could be accomplished through alternatives to incarceration placements, for example, or through simple bail arrangements. Alternatives to traditional court, such as mental health courts, could also be a more helpful and inclusive way of dealing with disabled people’s criminalized behaviors. Compared to traditional courts, mental health courts have been shown to increase quality of life, decrease psychological distress and reduce recidivism among criminalized individuals with psychiatric disabilities (Steinberg et al., 2015). We might also think about fostering community inclusion at the parole stage, when people have the opportunity to apply to return to the community before the end of their sentence. Within jail and prison settings, we might also think about whether disabled people are placed in general units or segregated units, or in solitary confinement units, as this relates to community inclusion as well.

Self-determination is another core principle for empowerment-oriented disability social work practice that at first blush may not feel relevant in a carceral setting. This principle is thought of as the process of making something happen in one’s own life. We want people to be self-determined in the form of having an opportunity to make our own choices, to set our own goals, to solve our own problems and to make a range of decisions for ourselves. At the pre-trial stage, legal teams in which social workers are a part can offer disabled clients self-determination in the form of making decisions about the path a case will take. If a social worker is engaged in practice with someone living in a correctional facility, opportunities for self-determination may be very tiny, but looking for those tiny opportunities may be very important for maintaining the humanity of the client in the midst of an oppressive system.

Disability advocates and scholars have written about the importance of the “dignity of risk” for the disability community. The term was coined in the early 1970s and posits that much can be learned through experiencing everyday, or greater, risks (Perske, 1972). Indeed, for disabled people involved in acts viewed as delinquent or involved in activity that is criminalized, such as substance use, this is often the case. For example, one of the authors’ forensic social work practice involved regularly co-representing clients with disabilities on cases involving public drinking from a bottle in a brown liquor store bag – with judges giving out harsher sentences for this population than for non-disabled people. At the core of honoring the dignity of risk is the respect for a person’s right to make their own choices – be they small, medium, or large. Allowing someone to live with the consequences of their choices is vital to this process even if a social work professional feels that they could endanger the client regardless of the presence of support on the side. Social workers in practice with disabled clients in the legal system need to be mindful of the opportunities for the dignity of risk just as they would be in any other setting – perhaps with greater attention to discussing the risk that an offender would experience within the carceral system given their choices.

Connected to practicing the dignity of risk is the idea of circles of support. Circles of support are the groups of supportive people that surround a disabled client. In practice, circles of support are a mixture of formal staff, family members, friends, or neighbors. For people living in the carceral system, this may involve people who live in the jail or prison with them, as well as people on the outside with whom they have telephone contact or family visits. Telephone contact is often difficult due to exploitative practices related to the cost of prison-based telephone calls, therefore limiting access to circles of support.

The final principle to consider in social work with disabled people involved in the criminal legal system is “nothing about us without us.” This phrase originally emerged as part of the disability civil rights movement. It gets across the idea that no decision about a disabled person should be made without the input of the disabled person. At the pre-trial phase, the structure of the legal representation system allows for this, although the sentencing decision-making process does not. While most decisions about an inmate’s life behind bars will not allow for input along the lines of “nothing about us without us,” social workers should look for the small opportunities where they do have the opportunity to empower their client in this way.

While this narrative has focused on applying these principles in direct, clinical and case management-oriented practice in the criminal legal system, these principles also have applications in the policy realm. Social workers who are crafting legal legislation or other policies can “check” their writing against these principles to make sure they are doing what they can to empower the disability community.

Also discussed earlier in this textbook, in the theoretical practice model chapter, is the practice model for intersectional, anti-oppressive and critically culturally competent work with disabled clients. Using the intersectional lens to understand your client’s experience of the criminal legal system will be important. So, too will be the use of the critical cultural competence lens in examining your positionality in relationship to your client. Although your practice in the context of a (very likely) highly oppressive organizational culture will prove challenging vis-a-vis the practice of anti-oppressive practice, you should look for small opportunities in which power sharing, for example, can be accomplished.

Your practice for disabled clients may not all be targeted at the clients themselves. Sometimes you may have opportunities to engage in systems change at the mezzo level. You may be able to help your agency conduct accessibility audits to look at how people with visual, hearing, physical, cognitive, sensory, and other disabilities are able to access services and facilities. You can challenge the ways in which disabled people’s behaviors, which may not align with dominant social norms, get interpreted as threatening or dangerous. You may also be able to consider how the system unconsciously uses ableist language. Sometimes change is made in small ways, over time, with lots of patience.

Social workers can also serve as powerful advocates for protecting the rights of disabled people in the criminal legal system. For example, social workers may consider working as part of the protection and advocacy (P&A) system. The P&A system was enacted by congress in the 1970s to protect and advocate for the rights of disabled people (Guy, 2016; Seevers, 2016). P&A’s have the authority to monitor settings where disabled people live, even the most segregated settings such as prisons. As more disabled people have become incarcerated, P&A’s have taken an active role in monitoring and advocating in prisons (Seevers, 2016). P&A work in prisons typically ranges from providing information and assistance to incarcerated individuals, to monitoring conditions on the inside, to large scale litigation. In prisons, where very few outsiders are ever given access, P&As serve a crucial role in making public the conditions of confinement and helping improve the lives of prisoners. A brief overview of the history and work of P&As can be found in this short video: https://www.youtube.com/watch?time_continue=139&v=m3vYxSe3s4M&feature=emb_logo

While some people believe that social workers can help mitigate the harmful impacts of the criminal legal system, many argue social work’s alignment with carceral systems is not an effective approach for social-justice oriented practice. Such critics argue that carceral social work distorts “social work practice and values, while particularly harming BIPOC and communities; poor people; immigrants; queer, transgender and gender non-conforming people; youth and the elderly; and people with disabilities” (Jacobs, et al., 2021, p. 52). As such, another practice model to consider that aligns more closely with NASW’s commitment to social justice is that of anti-carceral social work (also known as abolitionist social work) which “seeks to divest from the carceral arm of the state… and elevate community voices, community practices, and community problem solving” (Jacobs, et al., 2021, pp. 53-54). The logic of anti-carceral/abolitionist social work rests in a framework of non-reformist reforms (Hereth & Bouris, 2020; Kaba & Duda, 2017). In contrast to reformist reforms which “serve to resolve the crisis of the carceral state through carceral accommodation” (Kim, 2020, p. 319), and thus support the status quo, non-reformist reforms work to “imagine a different horizon and are not limited by a discussion of what is possible at present” (Ben-Moshe, 2020, p. 16). For example, fighting for the safety of disabled people in prisons is supported by abolitionists and considered a necessary non-reformist reform (Davis, 2003). In contrast, other seemingly progressive initiatives, such as the uptake of community-based electronic monitoring, are considered reformist in that they strengthen and expand, rather than displace, the reach of carceral systems (Ben-Moshe, 2020).

Engaging with anti-carceral/abolitionist social work does not imply that social workers cannot or should not provide individual-level supports and treatment, but there ethical issues we must grapple with regarding how we can provide effective support when we are bound by the rules of a highly oppressive system rooted in individualizing and pathologizing discourses (Leotti, 2021). Therefore, we encourage you to claim a space for radical imagination in your practice – a space in which you imagine possibilities for life-affirming practices that encourage accountability, repair harm, and promote healing outside of carceral systems. Models such as transformative justice and restorative justice are generally considered to fall under the rubric of anti-carceral social work.

Now, let us turn our attention to a case study where we can apply these theories and principles to a real-world situation from one of the authors’ case practice experiences.

Case Study

You are a forensic (legal) social worker partnering with public defense attorneys in adult criminal court. You are practicing during a “law and order” era, where the city’s mayor has ordered zero tolerance for criminal activity, even petty misdemeanors. However, the mayor’s crackdown on crime is unevenly administered in low-income neighborhoods such as the ones in which your court is based. This means that the court is constantly overloaded with cases, resulting in the intake/arraignments court needing to function on a 24-hour, 7-days-a-week basis. You are seeing people brought in for minor crimes that used to be handled through the issuance of a ticket or citation. You are also seeing people charged with crimes who really should not be charged with crimes – this is one such case. It is important to know that the sociopolitical context in which each court resides can impact how cases are chosen for prosecution, and that this can differ from jurisdiction to jurisdiction. This case is exemplary of the approach taken by prosecutors in many jurisdictions during the 1990s phase of the War on Drugs and the rise of the prison industrial complex. Unfortunately, the racism, sexism, and ableism present in this case remain in our system and in the types of situations forensic social workers can see in practice today.

Your job today is to interview newly arrested people to learn about what is going on for them in order to help attorneys identify social service needs that may support people’s legal cases. You are tasked with meeting a new client who is charged with manslaughter for the accidental death of her two children in a fire. You always start your shift by walking into the smelly, cramped holding cell in back of the arraignments court. There is an open toilet and a row of hard, metal benches that people sit and lie down on, depending on how many people are crammed into the space. You notice someone’s hair extensions on the floor from the fight that happened yesterday – nobody has been in to clean the space in 24 hours. Several people are lying in the corner, going through heroin withdrawal. You have learned not to get upset about this because you can’t do anything about it in this moment. People are sleeping and talking but are generally clearly not happy to be there. Despite that, you get a sense of camaraderie, with people advising each other on their charges. There are several pools of vomit on the floor that you are careful to avoid as you walk towards the interview area.

You call out your new client’s name “Rina Q.” but get no response. You call out again, and again get no response. Consulting a corrections officer, you learn that your client “can’t hear that well” and “has the purple and pink shirt on, the one in the solitary cell because she’s causing problems.” Further, the court officer lets you know her opinion saying, “but you don’t want to spend too much time with that one – you know how those illegals are, and she let her babies die after all.” Ignoring the comment and the ire rising up in you about it, you immediately see your client weeping uncontrollably, rocking her curled up body back and forth sitting in the cramped cell of the arraignments court in the South Bronx. As you walk up to the sole solitary cell in the arraignments holding area, you see that Rina’s purple and pink shirt has a Wiccan symbol on it and has fresh burn marks on it. Assuming your client identifies as a woman based on the case file (but remembering that you need to check that), you wonder why she isn’t wearing a coat in the middle of the winter – did the police not give them a chance to find a coat before the arrested her? “Wouldn’t be the first time I’ve seen that” you think to yourself. As you approach your client and call her name, you notice that she doesn’t seem to respond at all.

You are always hesitant to touch a client, but after several verbal attempts to connect, you place your hand gently on her shoulder. Looking up, you see that your client’s face is tear-stained and covered in black smoke. She has dark brown skin and looks to you to be of indigenous Latin American origin. “You want me?” Rina says in hard-to-understand English. You invite Rina to join you at the interview table across the way, noticing that Rina’s voice has an unusual sound and accent to it that you can’t quite place. As you sit down, Rina says something you can’t understand and begins gesturing with her hands. You quickly realize that Rina is indicating that she can speak but she is either hard of hearing or d/Deaf and uses sign language. You instantly think “how did she care for two young children if she was d/Deaf?” but move on from the thought. You switch to using pencil and paper for writing. You write a brief introduction about who you are on your case file notepad and pass it across the desk. Rina’s head shakes “no.” Taking the pen, Rina writes “Español mejor” or “Spanish better.” You use the little bit of Spanish you have to explain your role and explain that you will order an interpreter and will be back. Rina nods with wide, sad eyes and grimaces as the smell wafts over from someone throwing up again in the corner.

After ordering both an American Sign Language interpreter and a Spanish language interpreter, (because you are not sure which you really need and you don’t have a lot of time to think about it) you sit down to check in with your attorney partner. You are told by the attorney that the police report indicates that Rina has said she left her infant and toddler alone to go upstairs to borrow a cup of rice. Privately, you question her judgement about leaving young children alone, and wonder again about her capacity to parent as a d/Deaf person. You think “would she have been able to attend parenting preparation courses that would have warned against doing such a thing because of her impairment?” You learn that there was a fast-moving fire that engulfed her apartment before she could get back to the children. Although the police report indicates that a number of neighbors witnessed Rina trying to run through the flames to get to her children, she was still arrested on the spot and apparently given no grief counseling. Or, at least that is what the file says; the attorney hasn’t been able to interview Rina himself due to a lack of an interpreter. As the arraignment is required to happen within 24 hours, the judge is going to call the case soon, so your team needs to figure out what to do as soon as possible even though you have not been able to talk with the client.

At this point, a court officer taps you on the shoulder and lets you know that Rina’s mother is in the courtroom and would like to speak to you. From the mother, you learn that Rina is very hard of hearing, not completely d/Deaf, and uses something called Argentinian Sign Language, which you have never heard of before. She is a legal Argentinian immigrant who is 24-years-old. Rina left school in Argentina at age 16 to pursue employment in the U.S. in order to help the family by sending money back to Argentina. She recently moved into an illegal basement apartment. The apartment was one of four in the basement of an 8-unit apartment building, but the walls were very thin due to shoddy construction. For example, the mother described seeing electrical wires hanging here and there all through the basement. She said, “you can see why a fire would be so likely in a space like that.” You learn that Rina moved into the apartment because it was an affordable place for her and her two children to live on her meager housecleaner’s salary. She had just left an abusive relationship with a much older man, a father figure who allegedly “practiced witchcraft.” Apparently, Rina had to get an order of protection against this man, but he had also filed an order of protection against her. The partner had wanted Rina to engage in sex work to make additional money on top of her housecleaning work, and this had led to conflict. You think about how d/Deaf people may be more likely to become victimized, further encouraging your thoughts about the appropriateness of d/Deaf people as parents. You also learn from the mother that Rina had experienced physical abuse at the hands of her partner. This had led to a hospitalization, and due to challenges with communicating with hospital staff about how to get in touch with her mother, the children had been placed in foster care for a short period of time. You find yourself thinking “maybe the children would have been better off in foster care rather than with this d/Deaf parent, or with their grandmother.”

Clearly, you think, Rina has been through some significant trauma and is in need of care as soon as possible. Rina’s mother concludes her take on Rina by saying that Rina is a generally “good girl,” but that she just needs to come back to the “Christian family ways.” Further, she explains this is the only way she will take her daughter in if released by the court and “wouldn’t you please send her that message?” Demurring on that request, you learn that Rina’s mother does not speak Argentinian Sign Language very well, and mostly communicates with her daughter on paper, which apparently causes a lot of conflict in their relationship.

Before you finish your interview with Rina’s mother, a minor miracle occurs, the American Sign Language interpreter shows up at the same time as the Spanish language interpreter. This never happens in the resource-poor, and understaffed criminal court. You consider yourself lucky. You and the attorney hustle back into the holding cell to talk to Rina for the first time. But within moments it is clear that there is a problem. You feel dismayed at your thinking about how to handle this because the American Sign Language Interpreter can’t understand Rina’s Argentinian Sign Language, and quickly disappears. You revert to using the Spanish language interpreter who helps you to pass notes to Rina back and forth across the table, which takes up precious time, and leads to great frustration on Rina’s part. You try to put yourself in your client’s shoes, expressing your thoughts, feelings, and experiences on a piece of paper, slowly, with an interpreter, after just losing your children in a fire, for which you are charged criminally.

You confirm the details of the story about borrowing the rice and trying to get back to the children through the flames. It is clear that Rina’s remorse runs deep, and that the pain of losing her children in this horrible way will torture her for the rest of her life. The attorney explains the charges and how the case will proceed if Rina wishes to plead not guilty. Rina asks when she can get out of jail and the attorney explains that this is unlikely because of the seriousness of the charges, which is upsetting to her. He tries to explain what her choices are at this juncture in the case, but there are not many. Communicating via pen and paper clearly does not help the situation and causes her more frustration, leading her to throw the pen across the room as she cries out “doesn’t anyone know I just lost my babies?” Rina ends the interview by walking away and sitting back in the solitary cell where she starts crying and rocking anew. At this moment, the judge calls the case.

Discussion Questions:

  1. What might anti-oppressive practice techniques look like as part of the interviewing process in the arraignments interview with Rina?
  2. How would the therapeutic jurisprudence principle assist Rina in this case? What would the implementation of therapeutic jurisprudence look like in an ideal scenario for Rina?
  3. How would you handle the comment from the court officer about “illegals?” Would you confront the court officer in some way?
  4. How can the principles of self-determination, community inclusion, and “nothing about us without us” be used to inform case practice in this setting and in this moment?
  5. Ableism is defined as “the belief that because persons with disabilities are not typical of the nondisabled majority, they are inferior. Ableism precipitates devaluation, while the results of devaluation, including exclusion, ostracism” and a lack of privilege, can reinforce the attitudes, behaviors, and government actions of those who oppress. Four manifestations of oppression characterize ableism, “containment, expendability, compartmentalization and blaming the victim” (Mackelprang & Salsgiver, 2015, p. 105). As a reflective and reflexive practitioner, how would you address both the personal and structural ableism present in this case?
  6. If this case took place in a rural area, how would the dynamics of the situation change? Would you approach your work differently?
  7. What would your next steps be on this case?

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  1. Throughout this chapter we use the terms disability and disabilities to refer to people with all types of physical, sensory, cognitive, emotional, or psychiatric disabilities, including people with mental health conditions. While at times we shift between person-first and identity-first language, we primarily utilize identity-first language to refer to disabled people as a group or class.
  2. Throughout this chapter we use the terms “criminal legal system” and “carceral system” rather than “criminal justice system” to describe policing, prosecution, courts, and corrections in the United States. This is more than just an issue of semantics or political correctness. Language is inherently political, and it shapes how people think. The phrase “criminal justice” reifies taken-for-granted assumptions that justice can be found through punishment and confinement. Furthermore, as many activists and scholars have shown, contemporary carceral systems are a product of racialized and ableist historical processes and do not deliver justice but rather perpetuate injustice for the most marginalized among us.
  3. Public order offenses are violations deemed to interfere with public life. Prostitution, public drunkenness, loitering, and sleeping on the street are examples of public order offenses.
  4. We use the term criminalized rather than “criminal” or “offender” to indicate that “crime” is a social, political, and historical construct defined by policy and the prevailing sociopolitical and economic climate rather than by faults and deficiencies located within individuals. In other words, crime is not a natural or stagnant category, but rather one that changes across time and across cultures. For instance, cannabis continues to be criminalized in some states (and on the federal level), while in other states it is perfectly legal.
  5. According to Carol Padden and Tom Humphries, in Deaf in America: Voices from a Culture (1988): “We use the lowercase deaf when referring to the audiological condition of not hearing, and the uppercase Deaf when referring to a particular group of deaf people who share a language – American Sign Language (ASL) – and a culture. The members of this group have inherited their sign language, use it as a primary means of communication among themselves, and hold a set of beliefs about themselves and their connection to the larger society. We distinguish them from, for example, those who find themselves losing their hearing because of illness, trauma or age; although these people share the condition of not hearing, they do not have access to the knowledge, beliefs, and practices that make up the culture of Deaf people.”
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