Feature Issue on Engaging Communities Underrepresented in Disability Research
My Perspective: Who Are We Failing?
The main visiting room in Los Angeles County’s Men’s Central Jail has its own ecosystem; a perpetual breeze malodorous with sweat, desperation, and institutional cafeteria cooking greets you the moment you step inside. It’s a large space, roughly the size of half a football field, with several rows of twin benches, separated by short partitions. The benches are low, almost child-sized. Nobody uses the separate attorney visiting booths because their plexiglass partitions make it impossible to hear anything quieter than a shout. This is where, in 1999, I met my last client as a deputy public defender.
Wearing a blue county jumpsuit, he was in his mid 40s, his hair cut short and thinning a little at the hairline. Despite what looked like terror and disorientation in his eyes, he was polite and soft spoken. According to the police report, the arrest came after my client gave an undercover officer a small rock of cocaine in exchange for $5. For this offense, he was charged with possession for sales of a controlled substance, a felony, which under most circumstances carried a term of probation and a six-month jail sentence. He was facing a prison term of 25 years to life under California’s Three Strikes law because of a previous more serious conviction as a teenager.
Over the course of our multiple meetings, I tried to get more information from my client to build his defense, but we didn’t get very far. He tended to agree with everything I said but didn’t offer much in return. I suspected he was fearful of implicating others, but there was more. I wondered about intellectual disability. Miraculously, the school district hadn’t purged his records from many decades ago and in those mimeographed pages, I found repeated references to classroom troubles, being held back a grade, and at one point, a referral to the regional center.
As someone practicing solely in criminal defense, I wasn’t familiar with regional centers, California’s system for providing services to individuals with intellectual and/or developmental disabilities (IDD). There was a lone advocate assigned to the many souls who were considered regional center clients in LA County’s massive jail system. I gave him a copy of my client’s school records, highlighting the section that mentioned the regional center. After some wrangling, the advocate was able to get him requalified into their system so he could receive the social supports he needed. Supported with this mitigating evidence and another bureaucracy that was willing to take responsibility for my client, I persuaded the deputy district attorney to offer and the judge to agree to a brief period in custody with probation. They seemed convinced by the argument that my client was manipulated by others into literally holding the goods, as his school records confirmed that he had not mastered basic mathematical computation skills.
This experience convinced me to shift my legal career and I became a staff attorney at Protection and Advocacy, Inc. I hoped to focus on correcting the failures of the systems that seemed to shunt so many people with disabilities, particularly those from historically marginalized racial and ethnic backgrounds, like my client, into the criminal legal system. Now known as Disability Rights California, we are part of the network of agencies throughout the United States designated by Congress to serve as a watchdog after horrific abuses were uncovered at Willowbrook, an institution that warehoused people with IDD.
There have been a few notable changes since this case. California’s Three Strikes Law now requires the third case to be a serious, violent felony. Some regional centers more proactively follow clients who are arrested. Public defenders receive more training about systems such as the regional centers and how disability affects their clients.
Unfortunately, much remains the same, and racial disparities exacerbate the experience of individuals with IDD and their families, even before an initial contact with the criminal legal system. In California, Black, Latino, and Asian people with IDD receive significantly fewer public services than white recipients.
The failure to provide basic services to people with IDD from historically marginalized communities, particularly those with co-existing mental health conditions, has real implications. The Prison Policy Institute’s 2019 report found that “people who are repeatedly arrested and jailed are arrested for lower-level offenses, have unmet medical and mental health needs, and are economically marginalized.
Once arrested, people with IDD face serious obstacles to aiding in their own defense. Instead, they frequently aid in their own convictions after being coerced to give false confessions .
The Supreme Court recognized this pattern in Atkins v. Virginia, which found imposing the death penalty on people with intellectual disability violates the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment. The Court observed “people with intellectual disability (are) at higher risk for wrongful convictions and are more likely to confess to crimes they did not commit.”
People with IDD are similarly trapped when they are determined to be incompetent to stand trial. They are thrust in a legal limbo and housed in restrictive, prison-like settings until their competency is “restored.” Scholars and policymakers are only now beginning to seriously investigate what it means to restore a person with IDD to legal competence, particularly when the barrier is intellectual disability.
Individuals with IDD who are sentenced to a term of custody are more likely to be mistreated by corrections staff because of a perceived refusal to respond to commands, and taken advantage of by people whose worst impulses are brought forth by living in punishing environments. If held in “protective custody,” they are often isolated, and sometimes locked in a cell the size of a parking space, with no human contact for 23 hours a day.
Our team once received a desperate phone call from the mother of a Black teenager with intellectual disability, whose son had been arrested on a charge of indecent exposure after an incident on a school bus. We learned the boy was touching himself, unaware this behavior should not be done in public. We advocated for the student to receive proper sex education, with accommodations for his disability. The district attorney concluded the charge could not be proven beyond a reasonable doubt and chose not to prosecute. It was a win, but I often wonder how many others, without this intervention, have suffered unjust consequences. Although we could not prove race was a factor in the decision to immediately arrest this teenager and refer his case for prosecution before exploring other alternatives, researchers have found that, compared with white students, Black students are disproportionately disciplined and arrested; some studies have found Black students with disabilities, even more so.
As we consider budgets and priorities, we must ask what will best serve all of us: funneling more money into carceral systems that have not proven to keep us safe? Or, is funding services for people with disabilities the better path forward? We need more research into the intersectional implications of ableism and race, class, gender, and sexuality, and on disparities in incarceration, violence, and homelessness. More and better data gathering from social service systems, policing agencies, and detention facilities will help us see exactly who it is we are failing to serve, and who we are instead locking up. I believe the patterns will speak for themselves. It is up to us to push for the changes we need.