Disability criminalization: a primer

• Pages: 1127-1149
• Date: 01 October 2025
• Published date: 01 October 2025
• Author: Samantha Santoro,Jamelia N. Morgan

ARTICLES

DISABILITY CRIMINALIZATION: A PRIMER

Samantha Santoro* and Jamelia N. Morgan**

ABSTRACT

Disability criminalization occurs when individuals are exposed to criminal

legal system involvement—whether stops, arrests, detention, discipline, and pun-

ishment—for engaging in behaviors, norms, and conduct linked to, or caused by,

their disabilities. This Article provides a short primer on disability criminalization.

It def‌ines the concept before turning to key sites where disability criminalization

occurs. The Article concludes with a discussion of Critical Disability Studies and

how that discipline may be used by advocates as a vehicle for contesting disability

criminalization.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127

I. POLICING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129

A. Crisis-Care Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129

B. Policing in and Around Hospitals . . . . . . . . . . . . . . . . . . . . . 1135

C. Quality-of-Life Policing: A Focus on “Disability Policing”. . . 1138

II. PRISONS AND JAILS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140

III. CRITICAL DISABILITY STUDIES AS A VEHICLE FOR CHALLENGING

DISABILITY CRIMINALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149

INTRODUCTION

Disabled people are arrested, prosecuted, and punished for behaviors linked to

their disabilities. Disability criminalization occurs when individuals are exposed to

* Samantha Santoro is a law student at NYU School of Law. Samantha is interested in all work that seeks to

dismantle and abolish carceral logics and institutions across systems. This Article is dedicated to everyone

murdered by the police while in a mental health crisis, including everyone mentioned in this Article. I hope these

words work towards a world where your names are no longer collected as proof of a racist and ableist

deathmaking state. May we see abolition in our lifetime. This Article is also dedicated to Professor Jamelia

N. Morgan, whose work is lifesaving and who I am beyond grateful to have the privilege to work with. © 2025,

Samantha Santoro & Jamelia N. Morgan.

** Professor of Law, Northwestern Pritzker School of Law, and Founding Faculty Director of the Center for

Racial and Disability Justice. I would like to thank Samantha Santoro, my co-author, for her thought-provoking

discussions on the subject of this Article. I would also like to thank Kate Caldwell, Jordyn Jensen, Dimitri

Nesbitt, Kyanda Bailey, and Karima Itayem for their helpful contributions to my thinking on disability

criminalization.

1127

criminal legal system involvement—whether stops, arrests, detention, discipline,

or punishment—for engaging in behaviors, norms, and conduct linked to, or caused

by, their disabilities.

1

Disability, PRISON POL’Y INITIATIVE, https://www.prisonpolicy.org/research/disability/(last visited Apr. 28, 2025).

Arrest, prosecution, and punishment can occur when behaviors

linked to mental, physical, or cognitive disabilities contribute to the acts that satisfy

the elements of a crime or provide a basis for suspicion. Disabled people also face dis-

proportionate exposure to police violence and are disproportionately more likely to be

killed during encounters with police.

2

Press Release, Inter-Am. Comm’n on Hum. Rts., United States Must Address Ethno-Racially Motivated

Police Violence Against Persons with Psychosocial Disabilities (Sept. 3, 2024), https://www.oas.org/en/iachr/

jsForm/?File=/en/iachr/media_center/preleases/2024/203.asp&utm_content=country-usa&utm_term=class-

mon#:�:text=The%20IACHR%20urges%20the%20United,appropriate%20alternative%20f‌irst%20response%

20programs.

High prof‌ile examples of police killings of dis-

abled people illustrate the nature and scope of violence stemming from criminal legal

systems.

3

Though there is no systematic data on the number of cases where disability-

related behaviors led to criminal legal system involvement, the fact of this disability

criminalization is ref‌lected in the disproportionate percentages of disabled people in

prisons and jails across America.

4

While incarcerated, disabled individuals often

face barriers to accessing high-quality, appropriate, and timely medical and mental

health care.

5

Mental Health Treatment While Incarcerated, NAT’L ALL. ON MENTAL ILLNESS, https://www.nami.org/

advocacy/policy-priorities/improving-health/mental-health-treatment-while-incarcerated/ (last visited Apr. 28, 2025).

When individuals are denied access to medical and mental health care,

they may face subsequent disciplinary charges for behaviors stemming from this

lack of care.

6

Children with disabilities have also been arrested, prosecuted, and punished for

behaviors linked to their disabilities. Children with disabilities, particularly disabled

children of color, are disproportionately more likely to face restraints, seclusion, suspen-

sion, expulsion, and other punitive sanctions for behaviors linked to their disabilities.

7

1.

2.

3. The police killings of Ryan Gainer, a Black teenager with autism, and Sonya Massey, a Black woman

experiencing a mental health crisis, both demonstrate the ways in which racism and ableism intersect in instances

of police killings. See Melda Gurakar, Comment, Race, Disability, and Police Misconduct: A DisCrit Approach

to Privacy Law and the Killings of Ryan Gainer and Sonya Massey, 124 COLUM. L. REV. F. 221 (2024).

4. Disability, PRISON POL’Y INITIATIVE, supra note 1.

5.

6. Kimberly A. Houser, E. Rely Vilcica, Christine A. Saum & Matthew L. Hiller, Mental Health Risk Factors

and Parole Decisions: Does Inmate Mental Health Status Affect Who Gets Released, 16 INT’L J. ENV’T RESP.

PUB. HEALTH 2950, 2953 (2019) (“Inmates with mental health disorders are more likely to report serious

disciplinary actions taken for their infractions and are disproportionately represented in segregation units.”).

7. Jyoti Nanda, The Construction and Criminalization of Disability in School Incarceration, 9 COLUM.

J. RACE & L. 265, 276, 278, 293–94 (2019) (“For Black and Latinx students disproportionately placed in certain

disability categories and in an environment with heavy police surveillance and zero-tolerance discipline policies,

the outcomes can be dire: incarceration and ultimately criminalization of their (possible) disability.”); Corey

Mitchell, Schools Target Students with Disabilities for Discipline ‘Too Often,’ T

HE CTR. FOR PUB. INTEGRITY

(Aug. 12, 2022), https://publicintegrity.org/inside-publici/newsletters/watchdog-newsletter/schools-target-

students-disabilities-discipline/.

1128 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:1127