Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation

19 Pages Posted: 23 Jul 2019

See all articles by Jamelia Morgan

Jamelia Morgan

University of Connecticut School of Law

Date Written: July 22, 2019

Abstract

Over the last five decades, advocates have fought for and secured constitutional prohibitions challenging solitary confinement, including ending the placement and prolonged isolation of individuals with psychiatric disabilities in solitary confinement. Yet, despite the valiant efforts of this courageous movement to protect the rights of incarcerated people with disabilities through litigation, the legal regime protecting these rights reflects a troubling paradigm: ableism.

Ableism is a complex system of cultural, political, economic, and social practices that facilitate, construct, or reinforce the subordination of people with disabilities in a given society. In this Essay I argue that current Eighth Amendment jurisprudence in prison conditions of confinement cases in some ways requires lawyers to engage in ableism to protect their clients from harsh and inhumane treatment. The complexity of this arrangement — as between protecting and expanding the rights of people with disabilities and reinforcing practices that facilitate their exclusion and subordination — is both a cause and effect of ableism, particularly in the area of Eighth Amendment jurisprudence. Though entrenched in our legal institutions, the overrepresentation of people with disabilities in the criminal legal system calls for a new approach to the representation of these individuals. Toward that end, this Essay proposes a series of interventions in both law and professional practice to reduce the reliance on, and effect of, ableism in representing people with disabilities in the prison reform litigation.

Keywords: disability, prison, ableism, discrimination

Suggested Citation

Morgan, Jamelia, Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison Reform Litigation (July 22, 2019). Denver Law Review, Vol. 96, No. 4, 2019. Available at SSRN: https://ssrn.com/abstract=3424341 or http://dx.doi.org/10.2139/ssrn.3424341

Jamelia Morgan (Contact Author)

University of Connecticut School of Law ( email )

55 Elizabeth Street
Hartford, CT 06105
United States

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