Building Inclusive Justice: Addressing Disability Accommodation in the Criminal Legal System

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Over the past few years, Americans have become increasingly aware of racial bias in the criminal legal system (CLS), and the toll that mass incarceration has had on Black and Brown families and communities. But fewer people are likely aware of the disproportionate number of people with disabilities who are either incarcerated or on probation or parole. People with behavioral health disorders, mental illnesses, and intellectual disabilities are at especially high risk for CLS involvement, largely because of institutional failures and intersecting biases that both stigmatize people with disabilities and limit their access to resources. 

Often the story of why people with disabilities come into contact with the CLS starts in schools. Schools can be one of the most protective factors for children as they enter adolescence and adulthood. Positive attachments to school are associated with better life outcomes for children regardless of other factors. But children with disabilities, especially intellectual or behavioral disabilities, are often excluded academically in non-inclusive special education classes and disciplined disproportionately. Research has shown that students with disabilities lose more out of school instruction time for disciplinary reasons than students without disabilities. School discipline for children of color with disabilities is especially disproportionate–according to statistics collected by the US Department of Education, children of color are disciplined at rates far higher than their white counterparts, and children who are categorized as needing special education are at highest risk for exclusionary discipline like suspension

Schools are not the only institutions that have failed children with disabilities, however. Children with disabilities receive unequal access to interventions that can improve their outcomes. For example, decades of research has shown that early access to medication treatment and behavioral therapies can significantly improve education and life outcomes for children with ADHD. However, children of color are less likely to receive evidence-based treatments for ADHD, and often receive them later than their white counterparts. These differences in treatment mean that children of color with ADHD are less likely to receive care that helps them to manage their symptoms in an education setting, magnifying their risk of exclusionary discipline.

What does all this exclusion and inequitable access to care mean for people with disabilities in the CLS? Studies have shown the direct link between school discipline and future incarceration. Our best data shows that almost 40% of people incarcerated in prisons have a disability, and nearly one quarter of people in prison have been told they have ADHD. Nearly a quarter of people on community supervision (probation and parole) has a disability. Compare this percentage to the rate of disability in the general population of the U.S. (13%) and you can see that we have a problem. 

For neuro-atypical people in the CLS, navigating the rules and requirements of incarceration and community supervision is a significant challenge, for which there is rarely any accommodation. While the Individuals with Disabilities Education Act (IDEA) mandates that schools provide accommodation for students with disabilities, no such law provides accommodation for people under correctional supervision, and research shows that young people who are eligible for special education have poorer outcomes in the CLS, especially if they have experienced exclusionary discipline in school. Completing the requirements of correctional supervision, especially supervision in the community, requires people to adhere to conditions that are often logistically complicated, such as random drug testing and community service hours, while also maintaining employment or schooling and adhering to behavioral limitations like curfews. For someone with a behavioral disorder like ADHD, or a cognitive disability, managing these requirements can be impossible, putting them at risk of further punishment or incarceration. 

For practitioners and policymakers, learning how best to provide accommodation for people with disabilities in the CLS is a necessary step in reducing the imprint and impact of the CLS. Researchers and evaluators have an important role to play in investigating the specific ways that correctional supervision differentially affects people with disabilities, and the ways that other institutions (schools, the healthcare system) contribute to these inequities, and what people who have experienced these systems failures recommend to improve practice. 

 

*Note: the title of this blog post was created using ChatGPT

OpenAI. (2023). ChatGPT [Large language model]. https://chat.openai.com/chat

Sarah Jalbert, MA, PHD

Executive Director