Race, Disability and Criminal Justice

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Efforts to tackle systemic racism in the administration of justice need to include a focus on the rights of the disabled community, according to a University of Pennsylvania law professor.

Even though race and disability may not often be discussed in the realm of criminal justice, their intersection plays a large part in the activities of law enforcement in at-risk communities, writes Jasmine Harris in a paper published in Yale Law Journal. 

Research shows that people of color, specifically Black people, are more likely to have interactions with the police than white people. This is heightened if the individual has a disability.

According to the paper, 55 percent of Black people with a disability are arrested before the age of 28. Additionally, the chance that someone with an autistic spectrum disorder will have an interaction with the police is seven times that of someone without that disorder, said the paper.

“Disability rights discourse largely has failed to encompass racism, and anti-racism discourse largely has failed to encompass disability,” said scholar Dorothy Roberts, one of the sources quoted in the paper.

“The disability rights and civil rights movements are often compared as two separate struggles that run parallel to each other, rather than struggles that have constituents and issues in common, even as both people of color and people with disabilities share a similar experience of marginalization and “othering” and even though there are people of color with disabilities.”

This means that the community, as well as law enforcement, could harbor implicit bias surrounding people who have a disability and respond to the situation without adequately addressing those disabilities.

“Racism and ableism work in ways that validate and reinforce each other, and for students of color, the two do not exist apart from each other,” writes Harris.

In her paper, Harris describes how race and disability separates into three different sectors.

The first concerns how people of color could be treated as disabled just because of their race, and certain difficulties they may face as a result of their race.

Harris describes the second sector as how biased law enforcement can create negative physical or mental health effects that lead to a disability.

“Like disability, race should be viewed as a fluid and changing construct not limited to color but also culture,” said Harris.

The third concerns how those who have had lifelong disabilities may find it difficult because of their race to acquire adequate healthcare and accommodations.

“Both are socially constructed categories manipulated by state and private actors to maintain socio-political and economic power by framing both categories in the language of biological determinism,” wrote Harris.

Throughout history, the reaction of the community—specifically the white community—to race and disability showed how individuals who varied from “norms” of the community weren’t understood.

“Segregation and invisibility in both the race and disability contexts were state-sponsored attempts to move that which society deemed “ugly” or “disgusting” and hide it away to appease white fears,” the paper asserted.

Harris notes that while training and education of law enforcement is necessary, it needs to cover something called aesthetic theories of disability as well, to better address deep-rooted biases that have existed for decades.

“Early local ordinances known as the “ugly laws” regulated the visibility and movement of those bearing socially and politically disfavored marks—criminality, poverty, physical or mental disabilities,” said Harris.

“The social model of disability alone does not address the roots of why policing and officer training, for example, are unlikely to make meaningful dents in sedimented biases that have shaped law-enforcement institutions from their onset,” said Harris, pointing to how an aesthetic theory of disability could more thoroughly address structural racism inside law enforcement.

The paper also touches on how standardized data regarding the intersection of disability and race is important to future research and understanding of its related bias, but is difficult to access due to health privacy laws that may restrict certain information regarding disability.

“Integrating race and disability should not mean the elimination of one identity; that is, any intersectional theory must see both race and disability theories as critical to understanding what happens with multiply marginalized individuals and groups,” said the paper.

Access the full report here.

Read more: 32% Of State, Federal Prisoners, 40% Of Jail Inmates Report Disability

Emily Riley is a TCR contributing writer.

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