Disability and Incarceration: The Facts

pexels-photo-143580.jpegOne of the most devastatingly apparent indicators of how our treatment of people with disabilities affects a community is found when analyzing the number of individuals in jails and prisons that live with disability.  A 2015 report from the U.S. Department of Justice and the Bureau of Justice Statistics found based on a National Inmate Survey, of those who disclosed, 32% of prisoners and 40% of jail inmates reported living with at least one disability (affecting their hearing, vision, cognitive processes, ambulatory skills, self-care, independent living abilities, or otherwise).*  Of those who disclosed their disabilities, most respondents identified as having a cognitive disability.*  Cognitive disabilities typically affect an individual’s processing, problem-solving, memory and/or attention skills but range from Traumatic Brain Injuries (TBI) to Down Syndrome.

Putting that information into context of our legal system, think about how truly difficult it would be for a person with a cognitive disability to navigate the legal system.  How can you understand your rights if the words being used aren’t in your cognitive arsenal?  How can you find an attorney, or decide on a deal or legal approach if you’re ill-equipped to problem-solve? How can you hear all of your options if your brain redirects your focus in the middle of the discussion with your attorney, the police, or others involved in the process?  How can you convey to the police or your attorney the legal issue at hand and the situation you are in?

This report raises questions as to how we can appropriately explain a person’s constitutional rights in a way that they will really understand, how we interpret what the person is relaying to us about events surrounding the legal issue, and how we implement appropriate representation, services and sentences.

This is not to say that there are no people with disabilities who should be held accountable for their crimes.  This is also not saying that people with disabilities are prone to committing crimes.  Rather, this is indicative of systemic deviation—deviation from services, supports, resources and evidence-based strategies towards mass incarceration of a population that could be highly receptive to rehabilitation, or could include those actually innocent. Instead of channeling people with disabilities through the appropriate channels or services, we are making assumptions and rushing them through the criminal justice system.

Further, our system assumes not only that people understand their rights, but that they are literate.  There are individuals signing their names to documents of which they have no understanding because their literacy skills are limited.

Now consider a couple of other important facts.  From this study, 13% of prisoners and 16% of jail inmates reported multiple disabilities.*  Now we aren’t just having to balance the analysis needed for one disability but for co-occurring disabilities.  Also, there is a real possibility that many with disabilities did not disclose, whether out of choice, lack of formal diagnosis, or lack of understanding about their diagnosis.  The U.S. Department of Justice Report found that men were less likely to report their disability.*  Further, based on the shame and stigma surrounding disability historically, mental illness tends to be  reported even less.  As a special educator and counselor I frequently encountered adults young and old that knew they were different, but had no idea what their disability diagnosis was or that they were even diagnosed with a disability.  Because our education system places so much of our disability efforts in the hands of the teachers and parents, and because those individuals are understandably constrained by time and finances in providing an explanation to the students or children, I have frequently encountered adults who have limited understanding in the diagnosis that affects their daily lives.  This is a systemic issue, but also a self-determination issue.

Self-determination is an underlying main focus of disability professionals.  Self-determination entails a person with the disability being able to understand his reality in living with disability, and to have the power to assess the situations he is in and make decisions on his own behalf.  Self-determination skills are the most important skills acquired by individuals with disabilities because it increases their independence, and acknowledges that more often than not people with disabilities are better equipped to speak on their own behalf about where they are at and what they want for their future.  As a disability professional, this was always in the back of my mind.  However, with caseloads and classrooms brimming with clients or students, and resources limited more and more each year, sometimes it is easy to fall into the pattern of getting through the day to day.  How can we think about the future when we are trying to get through the “here and now?”  So, while self-determination should always be the underlying concept in any program for people with disabilities, too often children with disabilities become adults with disabilities who do not have a clear understanding of their diagnoses.

So that’s the bad news.  Here is why you should care. First, under the United States Constitution and based on every precedent-setting court decision since, people are entitled to certain rights and protections under the law.  There are due process and equal protection rights on a federal and state level ensured to all citizens—not all citizens except people with disabilities.  We should also care because the incidence of disabilities being diagnosed is on the rise.  We are learning more and more about different disabilities and conditions, but yet aren’t using that knowledge to adapt within our communities.  Everyone knows someone close to them with some type of disability, or is a person with a disability.

Let’s say someone you care about has a disability–

Imagine that person calls the police for help, but cannot convey what is going on because of a cognitive or communication impairment and winds up getting arrested because they police assume they are drunk and disorderly.

Imagine a close loved one with an autism diagnosis on their worst day, spiraling emotionally out of control, who just needs space from the crowds that are surrounding you out in public.  A police officer approaches and the situation escalates because the person cannot follow the strict orders yelled at them in a moment of chaos.  Because they are not obeying and they keep attempting to avoid the officer, they are arrested.

Imagine a young man with Down Syndrome, who has worked incredibly hard to get a job he is more than qualified for, only to be accused by other workers for stealing because the coworkers believe people with disabilities are an easy target for blaming mistakes or missteps.  The police arrive, and despite this man having a guardian, the police question him alone.  Unaware of his support, of his protections, of his rights, of the possible next steps, the man winds up in a whirlwind of overwhelming questions creating stress and anxiety so severe he cannot finish his shift, despite really needing the money to pay rent.

Imagine a child in a classroom for students on the autism spectrum.  They are only in elementary school, but are spending time in a resource room for a little extra assistance in learning the material for the day.  But the schedule changes unexpectedly, a change this child really doesn’t like.  He starts hitting himself and throwing things, and the school’s security officer restrains him for a lengthy period of time.  He is restrained in his hands and legs, and is told if he just stops moving he will be released of the restraints but because of his disability, he is unable to comply to the demands and ends up being restrained for a lengthy period of time, in front of his classmates and teacher.  He now is scared to go to school, and has a meltdown every morning to the point where he is physically sick.

I don’t have to imagine these events, because they happened (many of which I witnessed first-hand).  You should care because it’s happening more and more, and will likely happen to someone you care about.  You should care because it might even happen to you.  You should care because people with disabilities are more capable today than ever of being successful within their jobs or careers, and support their own families—they have jobs and families that suffer when they are misunderstood, fired, or arrested.

There are several ways that people with disabilities can be better served in their communities, and in return how communities benefit from providing equal rights and opportunities to people with disabilities.  The most fundamental way to best serve people with disabilities (and, in turn, the community as a whole) is to provide people with disabilities their full rights under the law.  Additionally, officers of the law, teachers, administrators, and community members need to adapt their techniques in order to appropriately assess and resolve any situation without the need of any escalation.

Lately I have been providing trainings to different offices that deal with these types of situations with the goal of not pointing fingers but instead providing simple techniques that can completely change the direction of these scenarios.  The focus cannot be on controlling the situation.  It must be on appropriately assessing, in order to attain de-escalation (which has the end effect of controlling the situation).

My next post will discuss different approaches for correctly assessing a situation involving a person with a disability in detail, so if you care about the issues I’ve presented from the report mentioned above, please stay tuned!

*And to read the full U.S. Department of Justices Special Report from December 2015 referenced throughout this article, you can find it here:

https://www.bjs.gov/content/pub/pdf/dpji1112.pdf

 

Thank you!

Ashley Jacobson, MA, CRC

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