Extending Justice: Strategies to Increase Inclusion and Reduce Bias
By: Bernice Donald & Sarah Redfield
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Below is an excerpt from a chapter co-authored by Elizabeth Kelley and Nick Dubin titled "Implicit Bias and People with Mental Disabilities: Taking Stock of the Criminal Justice System," taken from "Extending Justice: Strategies to Increase Inclusion and Reduce Bias," co-edited by Judge Bernice Donald and Professor Sarah Redfield.
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The criminal justice system is no exception to bias; studies show that implicit bias against those with disabilities is prevalent. One study found that preference for people without disability was among the strongest implicit and explicit biases: 76% of participants exhibited an implicit preference for people without disabilities, in comparison to nine percent for people with disabilities. Particularly disturbing, participants who themselves had disabilities still showed a preference for people without disabilities.
The significance of this implicit bias is underscored by the fact that approximately half the people in our jails and prisons have some form of mental disability; and half the use of force incidents with police involve individuals with disabilities. Indeed, to see a vivid illustration of this implicit bias across society, we need look no further than the local governmental response establishing protocols for treating and allocating treatment for those with Covid-19 in the Spring of 2020. People with both physical and mental disabilities reported disparate treatment when it came to access to facilities and care during the pandemic. These reports were especially disheartening as we celebrated the thirtieth anniversary of the enactment of the Americans with Disabilities Act (ADA). Various groups such as the American Bar Association (ABA), The Arc, and disability rights groups voiced outrage and filed lawsuits. Meanwhile, wardens and courts denied compassionate release to incarcerated individuals with disabilities while the pandemic raged, infecting many who were unable to escape enclosed and shared spaces. The Marshall Project reported that wardens in the Federal Bureau of Prisons denied practically every request made to them before these motions were sent to judges in federal courts across the country. Many of these physically ill and disabled people died while incarcerated.
We often judge people with mental disabilities based on how they act or look. Law enforcement may see a person in the middle of a psychotic episode and assume he or she is a danger to themselves or to others. They arrest or make the decision to shoot. But what about people with mental disabilities who don’t “act disabled” or look disabled?” Indeed, there are many mental disabilities which are called “invisible disabilities” because there are no obvious visible outward manifestations or because of the individual’s seeming ability to function. For example, when jurors see a defendant who fails to make eye contact, they may assume he or she has something to hide, when in fact that person may be on the autism spectrum, and eye contact may be excruciatingly difficult. So too, an autistic defendant who does not look the judge in the eye or twiddles his thumbs or her pencil during a plea colloquy or at sentencing can appear unremorseful. We do prejudge (the root of prejudice), often reaching erroneous conclusions, sometimes creating devastating, if not deadly, consequences.
If you or a loved one has a mental disability and has been arrested or convicted of a crime, you need an experienced criminal defense attorney on your side. Elizabeth Kelley specializes in representing individuals with mental disabilities. To schedule a consultation call (509) 991-7058.
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Mental Disability and the Criminal Justice System |
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A podcast which provides information - and hope - to people with mental disabilities ensnared in the criminal justice system, as well as to their families and attorneys. |
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APA calls for removal of mental health questions on applications to practice law
WASHINGTON — People seeking to be licensed as attorneys should not be required to reveal their mental health history, including whether they have ever had a mental health diagnosis, according to the American Psychological Association.
APA’s governing Council of Representatives unanimously approved a policy at its meeting Aug. 2 pledging to work alongside the American Bar Association and state bar associations to remove questions regarding mental health diagnoses or treatment history from character and fitness questionnaires.
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Opinion: California needs new rules as it forces more mentally ill people into treatment
California law has tried for almost 50 years to protect people with mental illness from forced treatment, and for just as long, critics have said that the state is leaving mentally ill people without treatment, abandoning them to die on the streets. Last week, the critics’ arguments won out, as the Legislature unanimously passed SB 43, which would allow the state to force more people into mental health care or substance use treatment.
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Man accused of murdering LA County Sheriff’s deputy pleads not guilty by reason of insanity
LOS ANGELES (CN) — Kevin Eduardo Cataneo Salazar, the man accused of shooting to death LA County Sheriff's Deputy Ryan Clinkunbroomer, appeared in court for the first time on Wednesday and pleaded not guilty by reason of insanity.
District Attorney George Gascón announced at a press conference that Salazar is being charged with murder, along with three special circumstances — killing a police officer, discharging a firearm from a moving vehicle and lying in wait. If convicted, Salazar could spend the rest of his life in prison without the possibility of parole.
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Missourians wait an average of 8 months in jail for court-ordered mental health services
Missourians who are arrested, deemed unfit to stand trial and ordered into mental health treatment are now detained in jail for an average of eight months before being transferred to a mental health facility.
And that’s “some good news,” Nora Bock, director of the Missouri Department of Mental Health’s Division of Behavioral Health, said during a monthly mental health commission meeting last week where she shared the new number.
That’s because, Bock said, the mid-September wait time is down from July, when it stood at 11 months
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People with mental illness are more likely to die in jail. A new Oklahoma County program puts them in treatment instead
After her arrest for a small amount of methamphetamine in 2017, U.S. Army veteran Krysten Gonzalez signed an Oklahoma County Mental Health Court contract agreeing to behavioral health treatment in exchange for the chance to stay out of prison.
The requirements were extensive: She promised to make every court hearing, treatment appointment, support group and probation check-in. She couldn’t use drugs or alcohol and would undergo regular drug testing.
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Multnomah County judge in center of Oregon’s mental health crisis
Multnomah County Circuit Judge Nan Waller once had an unorthodox request from a man in her courtroom.
He begged her tearfully to put him in jail. The Portland streets were bitter cold and he had nowhere to turn. She arranged for him to sleep on a conference room floor until her staff could find a program to help him.
Waller sits in the center of Oregon’s mental health crisis. She oversees the mental health court for the state’s largest county, a voluntary program that helps people stay on treatment, receive social services and reduce their time on probation.
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