Disability Law Journal at UCLA Law

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 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.

About the Author

Professor Jamelia Morgan is an award-winning and acclaimed scholar and teacher focusing on issues at the intersections of race, gender, disability, and criminal law and punishment. Her scholarship and teaching examine the development of disability as a legal category in American law, disability and policing, overcriminalization and the regulation of physical and social disorder, and the constitutional dimensions of the criminalization of status. Prof. Morgan received a B.A. in Political Science and a Master of Arts in Sociology from Stanford University, and her J.D. from Yale Law School. A prolific and award-winning speaker and author, her publications include several articles on disability rights law and civil rights that have appeared in leading journals including the Columbia Law Review, Stanford Law Review, California Law Review, and Michigan Law Review. Before joining the UCLA Law faculty, Morgan served as a professor at Northwestern Pritzker School of Law, UC Irvine School of Law, and the University of Connecticut School of Law. Prior to law school, she served as associate director of the African American Policy Forum, a social justice think tank that works to bridge the gap between scholarly research and public discourse related to affirmative action, structural racism, and gender inequality.