CONTESTING THE CARCERAL STATE WITH DISABILITY FRAMES: CHALLENGES AND POSSIBILITIES.

• Author: Morgan, Jamelia

INTRODUCTION 1905 I. DISABILITY FRAMES IN CONDITIONS OF CONFINEMENT LITIGATION 1910 A. Stigmatizing Disability Frames 1912 B. Productive Disability Frames 1916 II. DISABILITY RIGHTS AND DISABILITY JUSTICE MOVEMENTS: FROM PRISON REFORM TO ABOLITION 1918 A. From Disability Rights to Disability Justice 1918 B. Disability Rights, Prison Reform, and Decarceration 1920 C. Disability Justice and Abolition 1921 III. LEANING INTO THE TENSIONS 1924 Conclusion 1925 INTRODUCTION

Within the last decade there has been an uptick in legal scholarship addressing the various forms of discrimination and physical, mental, and emotional harms experienced by disabled people in prisons and jails. (1) This recent literature is situated among a larger and more well-known critique of mass incarceration that has, until recently, focused primarily on race and class disparities, as well as various stages in the criminal legal process sites for racial and class subordination. (2)

Expanding extant critiques by addressing disability and disablement within the ongoing social dilemma of mass incarceration is timely and important for two main reasons: first, disabled people are overrepresented in prisons and jails and second, confinement in prison and jails poses specific physical, psychological, emotional, and habilitative harms to disabled people in particular.

First, as to the disparities: people with disabilities are overrepresented in prisons and jails. The most recent national study by the U.S. Department of Justice's Bureau of Justice Statistics found that approximately 3 in 10 incarcerated people have a disability. (3) More specifically, approximately 10% of survey respondents reported a mobility impairment; over 6% reported that they are deaf or low-hearing; and over 7% reported that they are blind or low-vision, defined as serious difficulty seeing even with glasses. (4) In another survey of incarcerated individuals, approximately 4% to 10% of respondents reported having an intellectual disability. (5) Over half of all incarcerated individuals reported symptoms that meet the criteria for various mental illnesses. (6) Mania and depression predominated, but 15% of state prisoners had symptoms of psychotic disorders, such as delusions or hallucinations. (7) Finally, 51% of people incarcerated in prisons had some kind of chronic medical condition such as diabetes, cancer, heart disease, or high blood pressure. (8)

Gender and disability intersect in prisons and jails to render women with disabilities uniquely vulnerable while incarcerated. As many as 80% of incarcerated women meet the criteria for having at least one psychiatric disability. (9) Incarcerated women have higher rates of disability than the general population: 12% of women in the general population have symptoms of a mental disorder, or psychiatric disabilities, compared to 73% of women in state prison, 61% in federal prison, and 75% in local jails. (10)

Second, disabled people are particularly vulnerable to violence, physical and psychological harms in prisons and jails. Prisons and jails are violent and dangerous places that produce severe harms to physical, mental, and emotional health and well-being. All people incarcerated in prison and detained in jail are vulnerable to these risks. As a 2007 World Health Organization report noted, "[p]risons are bad for mental health" (11) due to "overcrowding; violence; solitary confinement; lack of privacy; separation from family and friends; lack of meaningful activity; and uncertain futures in terms of housing, work, and relationship." (12) At the same time, these carceral spaces produce unique harms and injuries for disabled people, who face a heightened risk of violence, deprivation, and discrimination. (13) Incarcerated people with disabilities are at a greater risk of encountering violence while in prison and suffering injuries from violent encounters. (14) Additionally, prisoners with disabilities face an increased risk of being denied access to appropriate mental health and medical services, along with therapeutic supports, putting them at greater risk of declining health outcomes. (15) Discrimination experienced by disabled people takes many forms--ranging from denials of access to medical services, educational, and rehabilitative programs, to segregation in solitary confinement which includes isolation in cells in conditions amounting to extreme deprivations of social and environmental stimuli. (16)

In light of these harms, it is perhaps not surprising that advocates have framed these carceral conditions--low-quality mental and medical health care, pervasive violence within prisons and jails, poor nutrition, and other harsh conditions--as "disabling" (17) in that the conditions of confinement have produced, or risk producing, physical and mental disabilities. (18) These advocates have relied on "disability frames," in part, in order to capture the debilitating nature of injuries and scope of the harms and to seek legal relief for their clients. As the term is used here to apply to conditions of confinement litigation, a disability frame is the use of disability and disability rights discourse to describe prisons conditions; disablement; the physical, psychological, and emotional harms stemming from deprivations or denials; or other forms of discrimination. (19) Advocates have relied on disability frames, in part, to allege legal injuries (namely, violations of statutory and constitutional rights) stemming from the physical and psychological harms, violence, and deprivation that disabled people experience in prisons and jails across the country. (20)

Since the passage of the ADA, disability frames are fairly common in prison reform litigation. (21) As I discuss below, though the disability frame serves some productive purposes, not all uses of the disability frame are beneficial given the long-standing goals of disability rights and disability justice movements. Indeed, both in prison reform litigation and beyond, stigmatizing tropes of disability may be present, even amidst legal victories. (22) That is to say, the reliance on stigmatizing tropes of disability may harm broader movement goals even if, in the individual case, the plaintiff prevails. The legal strategy of characterizing disability as an injury deserving of damages produces real tensions for advocates who aim to further the rights of prisoners and detainees without stigmatizing those within that group who are people with disabilities. For prison reform advocates, what is the appropriate use of the disability frame, if any? Which disability frames are stigmatizing? What are some of the challenges of deploying disability frames in conditions of confinement litigation and what are some of the possibilities? More specifically, what disability frames are productive in terms of promoting the separate goals of prison reform, decarceration, or abolition?

Part I discusses some of the uses of disability frames in conditions of confinement litigation, including what I term stigmatizing disability frames and productive disability frames. Part II outlines the goals of disability rights and disability justice movements and how those goals connect to movements for prison reform, decarceration, and abolition. Finally, Part III argues that, despite the risks, productive disability frames can serve to improve conditions of confinement for all incarcerated people, whether disabled or not.

1. DISABILITY FRAMES IN CONDITIONS OF CONFINEMENT LITIGATION

   In this Part, I examine the disability frame in conditions of confinement litigation in prisons and jails. Specifically, I discuss how advocates and courts are framing violations of constitutional law and federal disability laws as "disabling."

   Plaintiffs have deployed disability frames to allege that prison and jail conditions are disabling or debilitating. There are two primary versions of the disability frame argument. First, plaintiffs argue that confinement in the harsh conditions of prison and jail poses a risk to the incarcerated person's health or safety by making it likely that their physical and mental health will (or will further) deteriorate while incarcerated. The risk of (or actual) deterioration is due in part to the alleged failures of prisons and jails to meet the medical and mental health needs of incarcerated plaintiffs with disabilities, or the alleged failures of prisons and jails to protect the incarcerated plaintiffs from harm, like violent assaults. Where disability frames are deployed here, disability is used to frame the nature of the alleged injury constitutional deprivation, or denial of access; by acknowledging disability, advocates can more accurately describe the actual injuries alleged--risks of, or physical and/or psychological harms. (23)

   In the second type of disability frame, prisons and jails are framed as disabling because they impede the ability of incarcerated people to rehabilitate--that is, to access rehabilitative, religious, or vocational programs. (24) Here, disability frames have been deployed to frame denials of access (often, denials of reasonable accommodations) to rehabilitative programs, or appropriate medical and mental health treatment, as disability discrimination. When deployed in this way, the disability frame emphasizes not just the disability-based discrimination based on denials of reasonable accommodations, but also how such denials can impede rehabilitative opportunities by thwarting access to programs that permit incarcerated people to develop educational, rehabilitative, and educational skills. (25) Denying access to educational, rehabilitative, and vocational programs by failing to accommodate qualified individuals with disabilities functions as a type of disabling prison condition that prevents qualified individuals with disabilities from acquiring these skills. (26) Disabling prison conditions may also prevent qualified incarcerated people with...