Mass incarceration is a term that has moved from academic papers into the American mainstream. For years, America has been on an imprisonment binge that has blighted millions of lives and drained government budgets.
The disparate racial impact of so much jail time is now well known. But there are also other groups that have been hard hit by trends in the criminal justice system.
In this post, we will call use a Q & A format to call attention to one such group: people with disabilities.
What are the most common types of disabilities?
Disabilities can of course be physical or mental. The Centers for Disease Control uses a more inclusive term: functional disability. This refers to types of disability that include mobility issues and cognitive issues, among other things.
In other words, the term “disability” is not synonymous with the Americans with Disabilities Act or with the Social Security disability system.
Cognitive disabilities can include autism, Down syndrome, learning disabilities and other problems. Mental illness is of course also very common.
Is the percentage of people with disabilities behind bars greater than the percentage of people with disabilities who aren’t incarcerated?
Yes. In state and federal prisons, inmates are nearly three times as likely to have a disability as people who aren’t incarcerated. In jails, the disparity is even higher.
Untreated mental illness is a key driver of such disparities. The data on prison inmates with serious mental illness is especially striking: 1 in 5 inmates have that degree of mental disability, according to a new report by the Center for American Progress.
Does the Americans With Disabilities Act apply in the criminal justice system?
Yes. In a 1999 case called Omstead v. L.C., the U.S. Supreme Court held that the ADA does apply in an institutional setting.
But the challenge of protecting the rights of disabled people goes well beyond things like making sure a prisoner who needs a wheelchair gets one. In particular, infrastructure of the mental health system needs to be greatly improved, so that jails and prisons don’t become the default place to send people with mental disabilities.
This includes making sure there are meaningful treatment alternatives and other viable, community-based alternatives to incarceration.
What if have disabilities and are charged with a criminal offense?
For a person with disabilities, it is especially important to get a skilled criminal defense attorney on your side.