The last several years have rendered issues at the intersection of race, mental health, and policing more acute. The frequency and violent, often lethal, nature of these incidents is forcing a national conversation about matters which many people would rather cast aside as volatile, controversial, or as simply irrelevant to conversations about the justice system. It seems that neither civil rights activists engaged in the work of advancing racial equality nor disability rights activists recognize the potent combination of negative racialization and mental illness at this nexus that bring policing practices into sharp focus. As such, the compounding dynamics and effects of racism, mental health, and policing remain underexplored and will be the foci of this Article.
Lurking beneath the surface of these policing encounters is an issue of mental disability or, as I prefer to recognize this fluid state, mental vulnerability. Picking up from where my earlier Article, Racializing Disability, Disabling Race: Policing Race and Mental Status, left off, this Article will explore a contextually informed psycho-legal explanation for some of the policing incidents, which have attracted national attention, and others that have not. Specifically, my theory is that negatively racialized suspects (read non-White, in particular Black and Latino/a) who the police experience as defiant or disrespectful are constructed by police as "crazy, " regardless of their actual Diagnostic and Statistical Manual of Mental Disorders 5 (DSM) status. (1)
In such situations, the policing encounter is fraught. On one hand, police, expecting a certain level of deference, especially from people of color, often escalate a situation to the point that the indignation, or lack of respect, from the person stopped by police paradoxically reinforces the police assumption about their impaired judgment, behavior, and mental health. It is this felonizing process through which the deviant criminal subject/suspect is created. As I discussed in Racializing Disability, Disabling Race, Suspect Identity Construction (SIC) provides a fruitful lens through which to analyze such processes in a policing encounter--SIC is a lever around which an encounter is amplified. (2) Such intensification in turn serves as a rationale for an elevated police response, regardless of the fact that an escalated response is likely the opposite of what would alleviate the building situational pressure.
On the other hand, police encounters, which are transformed into confrontations through escalation and/or racism, may catalyze a range of mental vulnerabilities in the mind of even the most mentally healthy person of color. Racism is abusive--individually, systemically, and structurally. It is persistent. We know what abuse does to the body, mind, and spirit (Cortisol, fight or flight, etc.). Even for the most mentally sound individual, such racialized police encounters are potentially debilitating and disabling. The racism-health link indicates the impactful nature of discrimination. The residue of this societal puncture builds up in our bodies and is corrosive, debilitating, and ultimately disabling. Thus, it is not unreasonable to expect that preexisting mental illnesses or new mental vulnerabilities might be activated or created in racially charged policing encounters.
Table of Contents Introduction 617 I. Lingering Pathologies of History 627 II. "Particularly in the United States, Race Has Always Played a Central Role in Constructing Presumptions of Criminality" 638 A. Historical Context 639 B. Instances of Lethal Escalation or Controversial Killings--Increased Contact, Increased Killing 647 1. Whither the Data 651 2. Manifestations of Discretion; Racialized Disablement 653 C. Guaranteeing Inequality: Marginalizing Structures and Systems by Design 664 III. Provoking Mental Vulnerability: SIC at the Intersection of Race, Gender, and Mental Health 676 Conclusion 681 INTRODUCTION
Into the Void--"[S]ocial justice is the foundation of public health. " (3)
A surprising void exists in three bodies of literature, each probing similar justice concerns from different vantage points. Criminal law scholars, analyzing a broken justice system, have proposed solutions to police misconduct and questionable uses of force against vulnerable populations. (4) Critical Race scholars and activists have questioned the exercise of police discretion as it disparately impacts people of color, particularly African Americans and Latino/as, with whom police engage. (5) Disability scholars and activists, with few exceptions, have mainly focused on physical disability to the exclusion of mental health, and have largely ignored the compounding impacts of racism on disability. (6)
This Article explores the interacting constitutive dynamics at work in the construction of the criminal subject and, further, encourages study of the ways that disability is racially constructed, just as racism is disabling in the criminal justice system. Race and disability morph into one another to construct the perfect criminal who is perceived as requiring the use of disciplinary force and punishment. This Article analyzes the ways in which disability, especially mental illness, and negative racialization (read non-White, in particular Black and Latino/a), (7) are mutually reinforcing and constitutive of the conceptual offender in policing interactions. I refer to this process as "felonization," the move to construct criminality, ideally in heightened form. This is the dynamic through which a defiant suspect is constructed as a subjectively deviant and dangerous criminal who is, in turn, the proper focus of heightened law enforcement scrutiny.
I posit two different intersecting criminal justice concerns, both intricately intertwined with issues of race and mental health. (8) First, picking up from where my earlier Article, Racializing Disability, Disabling Race: Policing Race and Mental Status, (9) left off, this Article will explore a plausible explanation for policing incidents that have attracted national attention. My theory is that Suspect Identity Construction (SIC) is a contingent variable in policing interactions. (10) Negatively racialized suspects who are seen by police as defiant or disrespectful are constructed by police as "crazy," (11) the suspect's judgment implicated by their lack of deference, regardless of their actual Diagnostic and Statistical Manual of Mental Disorders-5 (DSM) status. (12)
This construction, in turn, increases the likelihood that the encounter will escalate or devolve. (13) I refer to this as a "felonizing" process, which is to say that felonization (the process by which a suspect is transformed into a more serious offender deserving of harsher criminal justice responses) is a negative spiral that tracks identity and consequent marginalization. It encompasses the strategic police moves to construct suspects into misdemeanor offenders, and the more consequential move to construct misdemeanor offenders into felons. In this way, felonization is an overbroad and encompassing policing maneuver. Such interactions are particularly fraught for individuals who are mentally or physically vulnerable, as they may struggle or be unable to comport their behavior to police dictates for obedience and compliance. (14)
According to the Department of Health and Human Services' Office of Minority Health, Black people in the United States are significantly more likely than White people, indeed twenty times more likely, to report having had serious psychological distress. (15) Not surprisingly, people who exhibit mental health challenges are more likely to attract heightened police scrutiny and reasonable suspicion; they are less likely to respond to police in ways that comport with police behavioral expectations and may, thereby, prompt unfortunate police escalation. (16) Moreover, even those who are not emotionally or mentally vulnerable experience the negative psychological impact of racism on their mental and physical well-being. (17)
Further adding to a debilitating situation, police subjectively interpret these racialized and ableist (18) encounters as necessitating a heightened, often forceful, response, no matter how relatively minor the nature of the precipitating contact. (19) Thus, despite ostensible police intentions, their interactions and behavior towards non-compliant and non-deferential suspects of color often escalate the exchange, thereby creating a paradoxical downward spiral, which is subsequently (and perhaps opportunistically) used by police to justify an arrest or the use of force. (20)
The corollary concern that will be explored in this Article is the way in which people of color, who may not be noticeably mentally impaired, or who might suffer from episodic or latent mental illness, can be provoked into a state of mental illness through brutalizing police encounters. (21) I explore both of these connected concerns through an examination of the Sandra Bland case, as her life and death may evidence the felonization process, and straddle situational defiance dynamics. (22)
Ms. Bland's interaction with the arresting officer, specifically her questioning of his rationale for stopping her, and her contestation of his rationale, may have been interpreted by the officer as insufficiently deferential (for a Black woman). Thereafter, subjectively in the mind of the officer, his interpretation of this lack of deference may have justified his use of escalating police tactics, and led to Ms. Bland's subsequent arrest. (23) Given Ms. Bland's death in police custody from an apparent suicide, any latent mental vulnerabilities (24) from which she suffered were no doubt exacerbated by her arrest and jailing for an incident that commenced with an improper lane change. (25)
Part I of this Article briefly explores disabling constructions that create a reality of disparate police...