Ableism in the Criminal Legal System
The criminal legal system targets people who are autistic, neurodivergent, or who live with disabilities. It is more punitive towards them, and is also the cause of thousands of new disabilities every year in Ontario.​
Listen to Andy, Jada, and Peter's experiences of ableism within the criminal legal system
Content Warning: ableism, mistreatment, language, suicidality
Targetting Those with Disabilities
Those with mental health issues are at least 3 to 5 times more likely to have a police-involved situation end in an arrest and detention than someone without. They are then less likely to be released on bail and more likely to receive a prison sentence even when factors such as severity of offense and criminal records are adjusted for.
In part, this is because the world in which we live is ableist. Most people have a very narrow idea of what “normal” behaviour is. These ideas of “normal” are based on the opinions of people who are not disabled or neurodivergent. Their ideas of normal do not include an outburst from an autistic person, tics from someone who has Tourette’s syndrome, or suicidal ideation from someone struggling with their mental health – even when these are very normal parts of someone living with those conditions, or adjacent to those who do.
When people encounter behaviour that is different or unusual, they have been taught to call for police. When police respond, they too respond from a narrow understanding of what “normal” behaviour is. They have also been trained to use escalation of force. For example, if someone is not cooperating with their verbal commands, they will react by using physical force with their hands. If someone resists being grabbed, police will increase the level of force and use a weapon, such as a baton, pepper spray, or a firearm. They are allowed to do this.
It is easy to see how quickly police responding to any situation with someone who experiences and navigates the world even a bit differently can escalate to a dangerous situation.
Racism means the danger exponentially increases if the individual who is disabled or neurodivergent is Black, Brown, or Indigenous.​
Some estimates say that up to 79% of adult prisoners have mental health issues, and that 40% of prisoners will experience at least one major mental health crisis while in prison.
Ableism in the CLS
There are a number of ways in which ableism happens within the criminal legal system (CLS). We’ve laid out some examples below to help you envision or understand some of the additional barriers someone who is disabled or neurodivergent may face
​
Cognitive Barriers
​
Navigating the CLS requires the ability for you to understand and follow a complicated process, and all the choices that are available. Protecting your own interests – even when you have a lawyer – requires the ability to read through and understand your legal documents. This is something that the legal system assumes you are capable of, however almost every conversation we have had with a prisoner (or past prisoner) expressed confusion about their rights and the court process stemming from various conditions including: ADHD, brain injuries, mental health issues, those on certain medications, memory/cognition issues, dyslexia and other reading disabilities, substance users, and more.
​
Escalated Police Interactions
​
Autism, neurodivergence, or disabilities can impact how someone communicates with words or body language, putting them at a risk of an escalated police response that risks injury or death. This can include someone who is d/Deaf, someone who is neurodivergent, or who is having an episode of mania, delusions, or psychosis – or many others.
​
Making Bail
​
Those who have documented and serious mental health issues such as bipolar or schizophrenia may face difficulty in being released on bail. The rationale is that someone who struggles with serious mental health issues may not return to court, or they may endanger someone. Courts sometimes also remand people to custody to await a bed in a psychiatric facility. This is the court weaponizing someone’s disability against them, and is ableist.
Case Outcomes and Harsher Sentencing
​
Those who have different communication styles as part of their disability or neurodivergence – such as not making eye contact, verbal outbursts, body tics, or a flat affect – are more likely to be found guilty or face harsher sentencing. This is because those behaviours can be read as someone being un-apologetic, or uncooperative in a situation where there is a high level of scrutiny towards someone’s behaviour.
​
Segregation
​
It’s not uncommon for jails and prison staff to segregate those who have disabilities, in particular those with mental health issues. While facility staff say it is for the individual’s “protection” this is ableism. Segregation is often used to address issues of overcrowding and a lack of access to appropriate medical care. Its use denies individuals the ability (and right) to socialize. Long periods of segregation are known to cause serious harm to people’s mental and physical wellbeing.
​Physical Barriers
​
Those requiring mobility aids will face additional scrutiny during search procedures, and potentially inappropriate handling of you and your aids or prosthetics. Most jail and prison facilities are not physically accessible – prison cells are small, beds are bunked, there are stairs, lips, edges, and no grab bars etc. They are often left up to the individual to navigate – who then sometimes must rely on other prisoners for assistance. Most parole facilities are not physically accessible, which means that individuals who should be released from prison can’t be.
​
Lack of Appropriate Medical Care and Supports
​
Those with disabilities that require medical supervision often face extreme barriers receiving equipment, support, or care they require for their conditions. This can include access to medication or counselling, diabetes test strips or appropriate diabetic diets, special equipment, or mattresses, and more.
Prison Causing Disability and Death
Navigating the criminal legal system is stressful for most people – even those who have had experience in it. For those who have mental health conditions, having to navigate the system or spend time in jail or prison can catalyze a crisis.
Overall, spending any amount of time in custody – including pre trial custody – reduces an individual’s life expectancy.
Prison agitating existing disabilities and conditions
-
Removing assistive devices, like eyeglasses, hearing aids, canes, walkers, wheelchairs, communication technology, or medication
-
A lack of healthy food choices and nutrition resulting in uncontrolled blood sugar
-
Existing mental health issues being agitated, potentially to the point of crisis or completed suicide
Prison creating new disabilities and conditions
-
Poor nutrition and exercise lead to poor cardiovascular health and incidents of diabetes
-
Changing medication, or over or under medicating someone impacts capacity
-
Physical trauma and acquired brain injuries from violence in prison
-
Prison – or segregation especially - catalyzing a new mental health condition such as PTSD, anxiety, or depression
-
Prison conditions such as air quality, overcrowding, and lack of medical care resulting in severe infections, respiratory issues, lung damage, and death