Disability Law Journal

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 the rights of incarcerated people with disabilities 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. Towards 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.