Category Archives: policy

The Challenge of Mental Illness in the Justice System Part 3: Victims

This is the third in a three-part post about a talk given by the Chief Justice of the Supreme Court of Canada, The Right Honourable Beverley McLachlin, about the interactions between people who are mentally ill (her term) and the justice system of Canada. Part 1 briefly discussed the history of the treatment of people with mental illness in Canada, and then described the current situation with regards to the criminal court system. Part 2 discussed the interactions between people with a mental illness and the civil courts. Part 3 will discuss the mentally ill as victims of the justice system.

This post will discuss violence against people with disabilities.

All quotes are from my notes and are not verbatim.

Many Canadians will be familiar with several stories of people diagnosed with a mental health condition being killed by police officers. Byron DeBassige, 28, was shot and killed by police officers in February 2008 (Toronto). Howard Hyde, 45, was tasered and killed by police officers in November 2007 (Halifax). Ashley Smith, 19, committed suicide in jail while prison guards watched in October 2007 (Kitchener). Reyal Jensen Jardine-Douglas, 25, was shot and killed by police officers in August 2010 (Toronto). While Robert Dziekanski does not appear to have had a mental illness, his “irrational” behaviour after having been detained in the airport for 10 hours is the reason police officers gave for tasering him multiple times and leaving him to die in October 2007 (Vancouver).

The Chief Justice specifically focused on the case of Byron DeBassige, reading from the Toronto Star article I linked above. She went on to state that she believes that the police wouldn’t have shot DeBassige over two lemons and a knife had they known he was ill. In light of the other cases I’ve linked to, I don’t agree with her – in several of those cases the police were firmly and repeatedly told the person they killed was mentally ill. I don’t believe police officers as a whole have risen above the ableist prejudices that lead to psychophobia (fear of people with mental health conditions), simply because there’s been no real attempt in Canada to combat it.1

The Chief Justice went on to discuss how prejudice and fear can affect people with a mental illness: “I’d like to shift the focus to millions of mentally ill people who do not break the criminal law, who remain untreated or inadequately treated, and at liberty. Too often they are simply victims: Victims of discrimination, ignorance, societal inefficiency, and sometimes of violence that too often ends with their death.”

As a woman with a diagnosed mental health condition, I’m twice as likely as my non-disabled counterparts to be the victim of a violent crime, including rape. [Source is PDF] I’m also significantly less likely to be violent than my counterparts. And yet, even on FWD (in comments that are unapproved), it’s not rare for people to equate my diagnosis with abuse. It’s not uncommon for me to be sitting in a classroom of people who know that I campaign for disability rights and have talked a lot about the prejudices that face people with mental health conditions and have my classmates talk about how “crazy” people are violent. After learning I was going to this talk, one of my classmates told me that, should she ever murder someone, she’d claim temporary insanity and just spend a few months in care and then be released. All I could think of was Ashley Smith, who threw crab apples at the postman and died in jail.

The stark truth is too often we discriminate against the ill. We pass them lying on the street but ignore pleas for housing, reluctant to give them jobs even when they’ve struggled valiantly to overcome their illness. We marganilise them.

We need to know more if we’re going to avoid the specter of mentally ill as victims. Related to this is the lack of social coordination on behalf of the mentally ill. All who play a role in an ill person’s life must find ways to communicate and talk to each other. They fall through the cracks. There must be better communication between agencies if we are to prevent more mentally ill people from becoming victims.

This last quote is, in sum, why I felt a lot of frustration with this talk. Throughout, the Chief Justice talked about agencies, she talked about police officers, parole officers, and judges, she talked about what people can do. At no point did she quote an actual person with a mental illness. At no point did she suggest that people talk to those of us who have a mental health condition, and find out what we want and need. At no point did she talk about attempts by the justice system to include people with mental health conditions on tribunals or in the discussions about how the justice system can do better on this issue. Nothing about us without us really shouldn’t be a daring concept, but it seems it is.

Despite all of my complaining, I actually did enjoy this talk. It’s not very often that people admit that prejudice and fear play a strong part in the way people with mental illnesses are treated, by society in general and the justice system in particular. As a Canadian, it makes me happy that the Chief Justice of the Supreme Court is speaking about this, because her authority lends weight to what she’s speaking of, and because I know the Supreme Court is aware of the issues that she’s raising. I also appreciate that she takes the time to speak on this issue often. I was recently emailed the text of a similar talk she gave in 2005. Making law students and lawyers (as well as the general public) aware of these issues may help prevent future cases like Ashley Smith’s suicide.

I would obviously like that more awareness of these issues was addressed in a helpful and thoughtful manner in the newspapers, in classrooms, and on the internet. Chief Justice McLachlin is doing good work, and I’m very glad of the opportunity presented by Dalhousie University to see her talk in person.

Dal News wrote about this presentation as well.

  1. There is, however, an attempt to point out that “mental illness costs Canadians $51 Billion a year“. I don’t think we battle prejudice against mental health conditions by talking about how much it costs, especially since I think it would be more accurate to say “discrimination and stigma related to mental health conditions costs the economy $51 Billion a year”, but what do I know? I’m just a crazy lady.

Figuring Out the Actual Goal of a Policy

Last time, we talked about three main areas of a policy where things can go wrong: drafting a written policy to match the envisioned goal or mission of the policy (articulation), creating an administration or structure to carry out the policy (implementation), and making sure that people are actually following the policy (enforcement). These three areas are extremely complicated when everyone involved has a common view of what the policy is trying to achieve. When there’s no clear agreement on the intended goal of the policy, things get even more confusing. For an example of that kind of confusion, let’s look at a recent policy proposal in New York State to prohibit the use of food stamps to buy soda. To understand what’s really going on here, we’ll need to take a closer look at a couple of things: what the intended goal and policy of the food stamp program is, what the proposed policy is, and how the two interact.

Let’s start with food stamps. The United States food stamp program started in 1939. Although it currently functions as an anti-poverty program, it started as a subsidy for American farmers administered by the U.S. Department of Agriculture as a way to help American food producers by making it easier for consumers to buy their goods. Originally, consumers bought coupons that could be used for food and were issued additional coupons that could be used for “surplus” food – food that was being produced but not purchased because of the problems in the economy. Even now, changes to the food stamp program take place in congressional “Farm Bills” that primarily focus on agricultural issues.

The food stamp program is also one of the primary anti-poverty programs administered by the federal government. Over time, eligibility for the stamps has been narrowed to include only low-income individuals and families. Unlike some other anti-poverty programs, eligibility is based on more than just an individual’s or household’s income and includes a calculation for how much they are paying for housing costs to determine the amount of income considered available for purchasing food. (You can go through the pre-screening on the federal food stamp website if you want to estimate your eligibility – if you’re from outside the U.S., just pick a random state.)

Although a person is approved for a certain dollar amount of food stamps per month, the benefit is not given to them as cash. Instead, they get that dollar amount of “food stamps” on an electronic debit card that can be spent only on food — it can’t be used for rent, gas money, diapers, clothing, vitamins, medicine, toiletries, or any other non-food items. There are also restrictions on the food that can be bought with food stamps: no hot or pre-prepared food (like a deli sandwich) and no alcohol or cigarettes. These rules get somewhat complicated – pumpkins can be bought if they’re edible, but not if they’re a decorative gourd.

So, given that framework, we can now understand what New York state is proposing: a demonstration project for New York City that would “bar the use of food stamps to buy beverages that contain more sugar than substance — that is, beverages with low nutritional value that contain more than 10 calories per eight-ounce serving. The policy would not apply to milk, milk substitutes (like soy milk, rice milk or powdered milk) or fruit juices without added sugar.” And the stated goal of the policy: “bring[ing] us closer to stemming the wave of obesity and diabetes in New York.”

The question of how much and whether these drinks do or do not contribute to an increase in diabetes and obesity (obesity which may or may not be a health issue) is a whole other question – for the purposes of this analysis, let’s just pretend we live in a world where that connection has actually been proven. Even if we accept that very tenuous connection, a big problem with this proposed policy is both overbroad and underbroad. Policies that are overbroad change more things than they need to in order to reach their intended goal. This policy is overbroad because there are surely people who use food stamps to buy some of the prohibited drinks who are neither obese nor have diabetes – so the policy would be prohibit purchases that do not contribute to the harm we are trying to prevent. It is underbroad partly because of what’s excluded – the sugar in fruit juice or chocolate milk is just as sugary as the sugar in soda. But it’s also underbroad because there are surely people purchasing these drinks with their own money – earned, inherited, or otherwise gotten not through food stamps – to buy these drinks that will contribute to their obesity and/or diabetes.

If we were this convinced that these sugary drinks were the root cause of an obesity epidemic, there would be a lot more effective ways to target this policy – by banning the sale of those drinks in the state, to anyone, using any method of payment. Or selling them only to adults. But this isn’t what’s being proposed. Partly because the soda companies would create a huge stink in protest and partly because the population would complain that they have the right to spend their money how they like and would likely vote out any politician that made such a policy. Instead, this is a “demonstration project” that New York promises the “effects [of which] would be rigorously evaluated.” This is really an experiment to find out if limiting purchases of these drinks makes any difference at all, either to the amount of sodas sold or any eventual health outcomes. And it’s a pretty bad experiment, because even with the tight control we have over how poor people spend their money, they could still buy a Coke with their non-food stamp income.

So what’s the real goal of this proposed food stamp policy? To further restrict the purchasing power of people low-income enough to receive food stamps in order to find out if this idea they have has any effect at all on what they want to try to change: the health of the overall population. And this kind of implementation is not at all unusual – these half-baked policy ideas that don’t have a firm scientific underpinning for their presumed causal effect are often tested out on vulnerable populations that don’t have the political power to resist them. If this was implemented on the entire population of New York City or state, there would be a giant backlash. But the poor aren’t nearly as well organized or politically active, so it’s safe to practice on them, for the good of everyone’s overall “health.”

Further reading:

“The Challenge of Mental Illness in the Justice System” – Part 2: Civil Court

This is the second in a three-part post about a talk given by the Chief Justice of the Supreme Court of Canada, The Right Honourable Beverley McLachlin, about the interactions between people who are mentally ill (her term) and the justice system of Canada. Part 1 briefly discussed the history of the treatment of people with mental illness in Canada, and then described the current situation with regards to the criminal court system. This part will discuss the interactions between people with a mental illness and the civil courts. (Everything in quotes is from my notes, which are not verbatim.)

One of the anecdotes the Chief Justice opened her talk with was about an incident that occurred when she was articling. She discussed receiving a phone call from a woman who had been institutionalized, and told her that she only had two minutes to be on the phone. “I’ve been locked up, and I need to get out,” she whispered. The Chief Justice related how this woman had been forcedly institutionalized by her very respectable husband, who decided she was “overly emotionally, somewhat hysterical, had convinced the doctor to sign the papers. The authorities had come and she was taken to the mental institution.”

I got the impression – perhaps wrongly – that the Chief Justice wanted us to see this woman as someone who had been wrongfully institutionalized because she wasn’t actually mentally ill. She told the anecdote as part of the history of institutionalization, having just described it as a way “to get rid of someone you didn’t want, like a wife giving you trouble.” [s.e. smith wrote about this a bit when reviewing Fingersmith at this ain’t living.] This is a pretty common narrative when people discuss fear of institutionalization, and you’ll often see this story play out in pop culture. It gives the impression that forced institutionalization isn’t wrong, except when it’s someone who’s totally sane. The mentally ill, on the other hand, can be treated without care.

The focus of this section of her talk was on the “difficult ethical and legal problems” arising in the civil court. “On the one hand lies liberty of the individual, and the right of the individual to make decisions. On the other lies the tragic reality that the mentally ill cannot make rational decisions. Surely, their loved ones argue, we should be able to impose treatment to the point where they can have the capacity to make rational decisions about his or her treatment.”

Again, the Chief Justice focused on the change in how people with mental illness can legally be treated as a result of the Charter. She touched briefly on the history of forced hospitalisation, and how this had originally been forced treatment as well. Now, apparently, people are only forced into hospitalisation if they’re considered a danger to themselves or others. (From what I’ve gathered talking to people in Canada who have been hospitalised as a result of mental illness, there’s a lot of pressure to agree. This can vary from loved ones saying “We just want what’s best for you!” and the attendant guilt-related issues, to “if you don’t agree we’ll call the police and you can go to the asylum instead”.)

In describing “the issue being whether the person possess sufficient cognitive ability to make rational treatment decisions about his or her health”, the Chief Justice focused on the particulars of one case, referred to as the Starson Case. [There’s a brief overview of it on Wikipedia, and here are some follow-up news articles and discussion.]

Again, according to my notes:

At the time of the action Professor Starson was detained in a psychiatric hospital as a result of a finding of Not Criminally Responsible. The physicians believed he needed medication, but Professor Starson refused. His physicians found that he was not capable of making a decision with respect to his medical treatment.

He applied to the Ontario Capacity and Consent board to review that decision. The Board agreed with the doctors. He was in almost total denial of the illness (Wikipedia tells me he was diagnosed with Bipolar Disorder) so could not relate information to his disorder.

The matter was appealed to the courts and the lower courts in Ontario ruled he was capable of making decisions. This case then went to Supreme Court and the issue was the interpretation of the test for capacity. The majority ruled that Professor Starson had the capacity to make a choice and accordingly the Board’s order was overturned.

The story doesn’t end there. After the Supreme Court decision in 2003, his condition deteriorated. In 2005, his treating physicians found him incapable of managing his care. With his mother providing substitute consent, doctor’s began medicating. In 2007 he was discharged to outpatient status. In 2009, he was still contesting the decision to be forced into treatment.

The Chief Justice then went on to describe the debate about the treatment of people who are mentally ill as being between those that argue that the law should never permit mandatory treatment, and those who argue that mandatory treatment should be expanded to cover more instances than it does. In Canada, she said, “Liberty can be curtailed only exceptionally – when there is genuine risk of harm to his or herself or others, or when a person is cleary incapable of making decisions necessary for medical care.”

One of things I noted in this section of her talk was the very distancing language the Chief Justice used throughout. While at one point she did describe how we can feel sympathy for Professor Starson’s fight to determine his own treatment versus that of his mother’s fight to get him the treatment she felt he needed, most of the time the Chief Justice spoke as though no one in the audience would ever be touched by these decisions. As I said in the first part of this, I’m uncomfortable with a circle drawn around people with a mental health condition, and another around people who work in the legal or medical profession, with no overlap. The whole thing read a bit too much like “you can tell who’s crazy by looking at them, so I know none of you are.”

There is one more part to this discussion, which focuses on the mentally ill as victims of the justice system.

“The Challenge of Mental Illness in the Justice System” – Part 1: Criminal Court

On Tuesday evening, the Chief Justice of the Supreme Court of Canada, The Right Honourable Beverley McLachlin, gave a talk in Halifax about people with a mental illness (her term, which I will use throughout) and their interactions with the justice system, both civil and criminal. For me, it was an interesting, although slightly, frustrating talk (I dislike the way people with mental illness and people who work in the medical or legal profession were treated as two different and distinct groups, with no overlap).

Like most people who follow disability-related news, I’m well aware of both the high levels of mentally ill people incarcerated in Canada and the frightening number of fatalities when someone with a mental illness interacts with the police. [Read More on this on FWD: Record of the Dead. I love policy. Publicity and the Taser. What is Justice.]

As the Chief Justice herself said, it’s an issue that many people want to sweep under the rug. I often see people wanting to pretend that each incident of a person being killed by the police as an individual issue, rather than a disturbing trend. As an activist, it’s heartening for me to know that the Chief Justice of the Supreme Court of Canada believes this is a systemic problem, and one that we need to fix.

I’m going to divide my discussion of this talk into three parts, just as the Chief Justice herself did. Part one is an introduction to the situation in Canada, as well as touching on issues that can occur when people with mental illnesses interact with the criminal justice system. Part two will focus on civil cases, specifically on people who have a diagnosed mental health condition refusing treatment and the response of the court. (I’m sure that will be fun. /sarcasm) Part three will talk about people with mental health conditions being victims of the justice system.

The Chief Justice began her talk with a brief history of the treatment and stigma around mental illness, focusing on how people used to believe that mental illness was a sin, or a sign of possession, or the fault of the mentally ill person. She then went on to detail how scientific advances have combated these stereotypes. (I wanted to move the country where mentally ill people are not blamed for having a mental health condition or considered weak or told to shut up, but I think we come at this from different perspectives.) She also touched briefly on the history of forced institutionalization in Canada, first in sanitariums outside of the city, and then in hospitals within it. She ended this section by discussing the de-institutionalization movement, which often left people with a mental illness with no skills to find a home or a job, and no ties to the community having been in the institutional setting for years. To quote my notes, which are not verbatim:

“The streets are dominated by many people with mental illness. We must now interact with them in society. Where once the legal solution was simple, now it is complex and expensive. Decent housing, drugs, hospitals, psychiatrists cost money. With so many competing demands on the health care, the claims of the mentally ill hover on the margins.”

One thing the Chief Justice highlighted in this section was the lack of hospital beds for people needing a psychiatric evaluation. When I worked in a mental health-related job, I know there were dedicated beds at the hospital for people brought in for psychiatric evaluation, but because beds were at a premium, they were sometimes given to other types of patients. This, in turn, both increases tensions between people who work within the mental health system and people who work primarily with physical illness (as though these are entirely separate things), as well as making it more difficult for police officers to bring people who may be living with a mental illness into the hospital for evaluation. Many of us can agree that a prison cell isn’t a place for someone who is having a mental health-related crisis, but sometimes there’s no place else to go.

The Chief Justice then introduced her discussion of people with mental illness and the criminal justice system by bringing up the Charter challenges to the system that existed pre-1982.

As a brief history lesson: Canada instituted the Charter of Rights and Freedoms in 1982, which guaranteed rights such as the right to be free from discrimination based on mental or physical disability. Now cases can be brought before the Supreme Court as “Charter Challenges” – the case is about whether or not the law itself is illegal by violating the Charter. In terms of people with mental illness in Canada, if they were found to be “not guilty by reason of insanity”, they were held under a Lieutenant-Governor’s Warrant, taken to an institution, and held there without any trial, without a judge, and with the case only being reviewed periodically. It was, in essence, incarceration without trial or any possibility of parole. This was Challenged as being unconstitutional, and the system had to change.

Again, to quote my not verbatim notes:

Parliament got to work and they drafted a series of provisions, known as Part 20 of the Criminal Code. These provisions are very advanced. They have set up an alternate route whereby mentally ill people who are charged with crimes are, after a hearing before a judge, declared Not Criminally Responsible. If they are declared NCR, then they do not go through the ordinary court system. They go before a NCR Board (this is Provincial). The board has an obligation to determine what is the least invasive way of looking after their illness. May give them an absolute discharge if there is no danger to the public and they can be released into society. They can give a conditional discharge, which is a discharge under medical supervision, and this can vary from part-time hospitalization to being in the community. Or they can, if the Board feels the danger to the community is such, require the person to remain in custody in a hospital.

There are reviews every year. The board deals with their cases and gets some familiarity.

This system is working very well. It works humanely. It works in a fair manner where mentally ill people can come before boards in an informal way. It is also providing adequate protection to the public. This is on the whole a positive development.

We still have problems: lack of hospital facilities. Before this system can start to operate a judge has to say that the person is NCR. Requires psychiatric assessment in a hospital. Sometimes trouble getting them into the hospital. A number of judges have spoken out about this. Reported in newspapers. Also problems in finding facilities for young people. 13 year old girl ended up having charges stayed because the authorities were unable to provide a proper youth setting for her evaluation and care. She was sent to prison instead, which was totally inappropriate. I mention these cases to show there are strains in the system.

I’ve had a bit of interaction with the Mental Health Courts from when I worked in the system. Like many things involving people with a mental illnesses, these courts are underfunded and very busy. There are very strict rules about who qualifies as “mentally ill enough” to be seen in this court, which means that people who should be here are instead sent back to the regular criminal courts. Everyone involved looks at this and knows it’s a problem, but the money isn’t there to solve it.

Institutional Research Boards, Syphilis, and You!

The United States government recently disclosed that in the 1940s, American public health doctors deliberately infected almost 700 Guatemalans, including some people institutionalized for mental illness, with syphilis. Although those infected were given antibiotics, it’s impossible to say how many died or experienced long term health consequences from the infection. The research was performed by the United States Public Health Service, which means it took place entirely under government control and oversight and used government funding from the National Institute of Health.

The worst part (well, there are lots of worst parts) is that nobody seems to have been covering this up. The main doctor involved was also involved with the Tuskegee experiments on black men and a professor researching Tuskegee uncovered details of the Guatemalan experiments in the doctor’s personal papers. The researcher presented the information at a conference in January, but the information didn’t go anywhere. It was only after she wrote it up for publication and sent a draft to a former director of the Centers for Disease Control that the government realized – or noticed – what had happened.

All of this strongly suggests that there should be some kind of rules and regulations – a policy – to prevent the government from conducting that kind of health research. To be required to treat human beings as humans, rather than non-sentient objects to be literally experimented on. To make sure that if something like this were ever to happen again, someone would have to take official responsibility and do whatever possible to make restitution. And there are. After World War II, in response to the terrible human experimentation carried out by the Nazis, the Counsel for War Crimes developed the Nuremberg Code, which is the basis of the United States’ current policy. The ethical guidelines from the Code were later made into formal law in the United States – in direct response to atrocities like Tuskegee – so there are currently federal regulations (Title 45, Part 46, if you’re interested) governing research on any human subjects. The policy has six major principles:

  • the proposed research design is scientifically sound & will not unnecessarily expose subjects to risk;
  • risks to subjects are reasonable in relation to anticipated benefits to subjects and the importance of knowledge that may reasonably be expected to result;
  • subject selection is equitable;
  • additional safeguards are required for vulnerable subjects (pregnant women, children, and prisoners);
  • informed consent is obtained from research subjects; and
  • risks to subjects are minimized.

All proposed experiments that involve experimenting on humans must be written up and submitted to the National Institute of Health, where they’re reviewed by the Human Research Subjects Advisory Committee. Most universities have their own internal board to review research involving human subjects and are accountable to the NIH for their actions.

So. Is that policy good enough to prevent another horror like this from occurring? Well, if the Guatemalan experiments had been written up and submitted for review, they certainly would not have passed. The research would unnecessarily expose subjects to risk that is far out of proportion to any potential benefit to them (none that I can see). There was significant research benefit – we learned a lot about how penicillin acts on the syphilis infection and how syphilis tests work, things we had not been able to learn from previous experiments on non-human subjects. Subject selection certainly was not equitable – the study picked extremely vulnerable people, including prisoners and PWDs, who did not receive any additional safeguards. Risk to people was not at all minimized. And most horrifically, no informed consent was obtained, because the people infected did not get any information and definitely did not consent.

But it’s easy to imagine the possibility that some horrible things could still happen. Take the prohibition on “unnecessarily expos[ing] subjects to risk.” What would the NIH consider necessary risk? Or a bigger question, what do they consider to be a risk? If they determine some risk exists, is there more incentive for them to overlook some risk when the potential knowledge benefits of the research are really big? There are more detailed regulations that discuss some of these issues, but it’s hard to craft statements that can apply to every potential situation that could come up.

Beyond that, there’s potential problems in implementation. You can imagine a group of people who believed that the quest for larger human knowledge and saving a whole lot of lives was more important than any single individual – they would make different decisions than a group of people who believed that any individual is more important than saving lives. There are complex rules governing the composition of review boards to ensure diversity, but it’s hard to ensure a good balance – and it’s also complicated by the number of different review boards that exist.

Finally – there’s the question of enforcement. The NIH can’t follow up on every single scientist and experiment to make sure they’re carried out exactly as described in the application. What is there to prevent a scientist from falsifying the writeup of their research and carrying out unauthorized experiments? This part is mainly carried out by the scientific community itself, which requires peer review in order to publish the  results of research. This method of enforcement saves the government money but might be inexact.

Despite all these potential problems, we’ve created a complicated policy like this instead of banning all experiments that involve humans for clear reasons. I’ve been a subject in a whole host of experiments, including one measuring the effect of the personality of lab personnel in desensitization experiments. I contributed to the study and now have a fondness for, rather than a terror of, tarantulas.

So have we created the right policy? The best policy? A good policy? I don’t know. Our review of the policy gave us only a little bit of answer and a whole lot of questions. It turns out that’s often how policy works, and the kinds of problems with this policy are the same kinds of problems we see in a lot of policies. There’s the problem of specificity – how do you write a policy that says exactly what you want? There’s the problem of implementation – how do you get people to do what the policy says? And then there’s the problem of enforcement – how do you make sure that people are really following the policy? It’s easy to make sure that the rules apply to the most extreme examples – the Guatemalas, and Tuskegees, the Milgrams and the Stanford Prison Experiments – but it’s harder to address the cases nearer the line between ok and not ok.

Further reading and reference:

Various National Policies on Research on Human Subjects

Deportation by Default, Part Two: United States Wrongfully Deports Disabled Citizen

In July, a study was released discussing disabled immigrants and revealing some alarming facts about who is in immigration detention in the United States. I wrote about it here, and the numbers were pretty astounding. The study uncovered the fact that 15% of the people in immigration detention in the United States had disabilities that impaired their ability to understand immigration proceedings. They were unable to defend themselves in court and unable to understand their legal rights. Some were kept for years in detention while officials debated what to do with them.

Immigration law is one of the most tangled areas of law in the United States. The system is complex and labyrinthine and it’s extremely difficult to navigate. It’s even harder when you’ve been held in detention for weeks, months, or years and you’ve been provided with inadequate care; being in confinement is stressful, and can exacerbate mental illness for some people, making it even more challenging to make your way through the court system. The ACLU set out some immediate demands in their report to get better protections for disabled detainees; as far as I know, those demands have not been met.

The report also documented cases of US citizens with disabilities who were deported because they were the wrong colour and they were unable to defend themselves in court. Just last week, I read a followup on a case I discussed; the American Civil Liberties Union is suing on behalf of Mark Lyttle, who was deported and left to fend for himself in Mexico, Honduras, Nicaragua, and Guatemala for four months before he was able to get assistance from a US embassy. This case has been dragging on for over a year.

Lyttle is of Puerto Rican descent, but he’s lived in the United States his whole life. He only speaks English. The government knew this when they deported him:

The U.S. government admitted in April that it had wrongly deported an N.C. native, but newly released documents show that federal investigators ignored FBI records and other evidence showing that the man was a United States citizen.

At the time of Mark Lyttle’s deportation, immigration officials had criminal record checks that said he was a U.S. citizen. They had his Social Security number and the names of his parents. They had Lyttle’s own sworn statement that he had been born in Rowan County. (source)

His story started when he was briefly jailed for ‘behavioural problems’ in a home for people with mental illness. Officials referred his case to Immigration and Customs Enforcement (ICE) despite being aware that he was a US citizen. ICE detained him, investigated, denied him legal counsel, and deported him to Mexico.

As he drifted homeless and penniless through Central America, he was unable to access the medications he was taking to treat his mental illness. Unstable environments contributed to a deterioration of his mental state. He considered suicide. He was imprisoned by multiple sets of officials and deported a second time when he managed to re-enter the United States. Finally, after reaching an embassy, his family was contacted and he was brought safely back into the United States.

There are layers of problems with this case. There’s the documented issue that ICE fails to serve people with disabilities in immigration detention, making it impossible for undocumented immigrants, documented immigrants, and wrongfully detained citizens alike to make their way through immigration proceedings; it’s pretty much impossible for anyone to self-represent in immigration court, let alone someone who is disabled, isolated, frightened, and not getting adequate care. It’s clear that a better system needs to be put in place to screen people when they enter detention so they can be provided with adequate services, if we are going to be detaining people at all.

And there’s the problem, not restricted to people with disabilities, of deporting people simply because they appear to be undocumented immigrants. If you have brown skin, if you ‘look Mexican,’ whether or not you are, whether or not you have documentation, there is  a potential risk of deportion. ICE raids in workplaces across the country have swept up legal immigrants along with US citizens, including some people who have never been outside the US. Despite ample documentation, these people have been deported. Because they look wrong.

Cesar Ramirez Lopez, a San Pablo truck driver, won a $10,000 settlement in 2007 after he was held for four days by U.S. Immigration and Customs Enforcement agents even after his lawyer convinced ICE investigators that he was a citizen.

Rennison Castillo, a Washington state man who was born in Belize but took his oath of citizenship while serving in the U.S. Army in 1998, who spent seven months in an ICE prison in 2006. He is suing the government with the help of the Northwest Immigrant Rights Project in Seattle.

Some longtime observers of the immigration agency say that, while citizens make up a tiny fraction of the roughly 400,000 people who pass through ICE custody each year, such cases occur with some regularity. The problem is exacerbated, they say, by the fact that immigration detainees, unlike those in the criminal justice system, lack the right to legal counsel and other due process protections. (source)

One of the cornerstones of the legal system in the United States is supposed to be the premise that people are innocent until proven guilty. Yet, in the case of deportation proceedings, people are…guilty until deported. Denial of basic legal rights to people in immigration detention is a travesty and a human rights violation. People are intimidated into complying with deportation proceedings:

The young man was bullied into signing a form authorizing his voluntary deportation, except that it wasn’t made clear to Delgado that by affixing his John Hancock he was okaying being shipped off to Mexico. His belief was that he would be allowed to return home in Houston if he just did as he was told. (source)

This is a problem that goes far beyond the issues with disabled detainees in particular. The current state of our immigration system is a travesty that needs to be addressed; it is a foreign policy issue, it is a human rights problem, it is a fundamental violation of everything the United States claims to stand for. Providing basic legal rights to all people in immigration detention should be an immediate priority for the United States, because this has got to stop.

A Study in Contrasts: Accessibility and the California State Government

I am, as some readers may be aware, in the process of moving house1 which means that I am skittering about in all directions trying to do things like getting my address changed everywhere and rounding up boxes and impatiently waiting for Moving Day.

I try to do as many things online as possible, so on the off chance that the Department of Motor Vehicles would let me, I went to their website to see if I could enter an online address change. As it turns out, I could! Hooray! But what really interested me was that the DMV’s website is covered in multiple notices about accessibility. Starting right at the top of the page: The topline navigation on the DMV website is skip navigation. Implementation of skip navigation is rather spotty, so it’s really exciting to see it on a government website.

They have a section of the website discussing disability services and accommodations at DMV locations. Yes, the headline on the page includes the cringeworthy ‘the disabled,’ but it covers a lot of topics, from getting ‘terps for doing business at DMV offices to service animals. It also refers to ‘special assistance’ as opposed to just ‘assistance’ or ‘accommodations,’ but I like that the accessibility policy for DMV locations specifically avoids the trap of only discussing certain disabilities, and that it includes information about getting your business done online or over the phone, for people who do that.

There’s also a separate website accessibility policy, which includes this statement:

The Department of Motor Vehicles’ (DMV) website has been developed in compliance with California Government Code 11135, located in Section D of the California Government Code. Code 11135 requires that all electronic and information technology developed or purchased by the State of California Government is accessible to people with disabilities. There are various types of physical disabilities that impact user interaction on the web. Vision loss, hearing loss, limited manual dexterity, and cognitive disabilities are examples, with each having different means by which to access electronic information effectively. Our goal is to provide a good web experience for all visitors. (emphasis mine)

That’s right. The state government thinks that accessibility is important enough that it requires accessibility for new electronic/information technology acquired for government use. Not only that, it recognises that accessibility is complex and multifaceted, and that multiple issues must be considered when designing accessible spaces. The website accessibility policy goes on to talk about specific design features they have implemented and how to use them, and provides general tools for web browsers that could be applied beyond the DMV site. Honestly, and I never thought I would be saying this about the DMV, it’s a resource useful enough that I would probably send people to it if they were looking for tips on basic design for accessibility, and basic browser modifications to make browsing more accessible.

Let’s contrast this with the Canadian government’s decision to go to court to avoid making their websites accessible to screen readers. Now, let’s not misstate things here: The State of California is not a perfect model of Access for All and it shouldn’t be mistaken as such. But the difference between these two situations is quite a study in contrasts. On the one hand, you  have a government deciding that spending funds on technology that everyone can’t access is not acceptable, and, in fact, so not acceptable that it passes a law about it. On the other hand, you have a government so fervently resistant to one accessibility issue that it wants to go to court to defend its right to deny citizens access.

One government decides, as a matter of policy, that taxpayer funds should not be spent on inaccessible equipment. Another does not. Is California perfect? Certainly not, but they’re making a good faith effort, and it’s a significant step in the right direction. It’s especially significant that the information is readily available and made as visible as possible, because it’s not just available to disabled users of the DMV website. It’s also visible to nondisabled users, and may get some of them thinking about accessibility, and perhaps reframing the way they define accessibility.

  1. Yes, it is very exciting! Hooray! New house! Ok, back to the original topic.

Today in Journalism: You Used the Wrong Lede

In Houston, an autistic student is being denied accommodations and his parents took the school district to court to fight. However, they ran out of money and were forced to drop the suit. The student, Chapuka Chibuogwu, remains at home, not receiving an education, because his parents didn’t have the financial clout to pursue his legal rights. This is a story that plays out in communities across the United States every day, with school districts pouring money into fighting suits filed by people who are only asking for the accommodations they are entitled to under the law.

Enter the media, which decides to frame this case in a number of, shall we say, interesting ways. Chibuogwu’s parents are immigrants, and there’s a heavy focus on the ‘broken dreams’ narrative going on here, with a side of ‘all immigrants can succeed if they try hard enough’:

Dreams brought Kenneth Chibuogwu to America and in time determination brought many of those aspirations within reach.

“I worked hard. I came to this country with nothing,” says Kenneth.

This is a common element I see in stories about problems immigrants encounter in the United States. There’s a myth here that this country welcomes ‘the right kind’ of immigrants, people who work hard and keep quiet, and these stories frame problems as simply personally unfair, rather than as evidence of more systemic issues. They remind immigrants that they just need to try and they will succeed in the United States, since obviously things like racism don’t present any obstacles at all to members of the immigrant community. These stories present the United States as a fundamentally fair, free place, as the pinnacle of human achievement, and makes sure to grab pull quotes to reinforce this:

“There was nothing I could do but cry because I was so shocked that such a thing could go on in this country,” added Neka [Chibuogwu’s mother] of the repeated conferences with Alief administrators ending in stalemate.

In this case, the school district turned around to sue the parents to demand repayment of the legal expenses it incurred fighting the original suit, and when it lost, it appealed. This isn’t personally unfair. This isn’t about broken dreams. This is evidence of a systemic problem. When a school district is so opposed to accommodating students that it retaliates with countersuits when people attempt to get the district to comply with the law, that’s indicative of deep, sustained ableism.

And, of course, this article includes lines like ‘…a child who will spend each and every day of his life challenged with autism.’ Never is Chpauka Chibuogwu himself represented, except as a shadowy figure at the fringes of the story. Interviews with both parents are present, but he is firmly relegated to the sidelines.

This quote is illuminating:

“What they are trying to do is send a chill down parent’s spine about advocating for their children,” says Louis Geigerman, president of the Texas Organization of Parents, Attorneys and Advocates.

Note that Geigerman doesn’t say ‘this case is being used to threaten disabled students who need accommodations.’ Not ‘this case is designed to send a clear message that disabled students are not deserving of accommodations,’ not ‘the fact that this school district is fighting this hard to deny accommodations is illustrative of some serious problems with our education system.’ No. It’s about the parents.

Now, obviously, a child being denied accommodations in school is probably going to have trouble self-advocating, for a variety of reasons, ranging from ageist attitudes to perhaps not having access to information about self-advocacy to being around people who refuse to communicate on the student’s terms. So, clearly, parents play an important role in securing accommodations for disabled children and in forcing school districts to comply with the law. However, the complete erasure of the student in this case, and in most cases like it, is really frustrating. It’s a reminder that people with disabilities are defined by the people around them, rather than existing as individuals.

The only direct reference to the student is this editorial line thrown in at the end of the story:

As for Chuka, he’s now fourteen, attends no school and for five years hasn’t received a single minute of the free and appropriate public education that is his right.

That should be the centre of the story. The denial of education to the student should be the focus. The fact that the school district is violating the law should be the focus. Persecuting his parents with lawsuits is definitely part of the story, and it’s an important part, since the decision to attack his parents for fighting for accommodations is illustrative of the way the district views disabled students, but the story isn’t framed that way. The story is framed as a hardship for the parents, with the student as an afterthought. ‘As for…’ is the line you use when you are making a throwaway comment. This student is not a throwaway.

I Love Policy

It’s true. I am a policy wonk. I am endlessly interested in it. I read about it, think about it, talk about it and … write about it. (As in, what I’m doing right now.) And I do all of this because I think it’s immensely important. Crucially important. Vitally important.

Public policy is how the government – whether local, state, provincial, federal, or any other level – takes action on a particular issue. It covers a whole huge range of potential state actions – allocating and spending money, setting and enforcing professional guidelines and standards, creating agencies and staff, structuring tax incentives, even defining what constitutes criminal behavior. That’s an extremely big category that clearly has an enormous and unparalleled effect on the world.

Public policy not only drives state and governmental actions, it also has enormous influence on private sector actors. Tax policy can encourage specific areas of business, grants can encourage specific methods or practices, and governments both licence and regulate businesses. This combined effect on public and private actors means that to my mind, changing public policy is the quickest and most effective way to change things for a big group of people, all at once.

Policy touches almost everything we do and everything with which we come into contact. Right now, I am sitting on my bed, the mattress of which complies with regulations to prevent it going up in flames. I am wearing a shirt made in the United States by workers subject to minimum wage laws and industrial safety protections. The US shirt manufacturer is protected from competition from international producers by trade tariffs and taxes. The soda I am drinking displays nutritional information pursuant to federal regulations. The internet I am using is regulated by the Federal Communications Commission. Even the air I am breathing is affected by pollution standards and the decisions to grant or deny permits to things like coal processing plants. Even my kitty is included – she’s protected from abuse by criminal statute and, where I live, is protected from declawing. And that’s just scratching the surface of all of the policies surrounding and affecting me right this second.

There are, of course, a lot of other factors and forces that influence how people interact with the world, both as individuals and in groups. There’s huge effects from family, religious, cultural, and ethnic beliefs and traditions. Then there’s a myriad of individual differences – the things a person reads and watches and talks about and is talked to about, for example. I would argue that each of those things could also be influenced by government policy – like how the private movie ratings system created as a reaction to public regulation prevented me from seeing R movies until I was at least 16, or what books my local public library system bought and so were available for me to read. I’d also argue that individual preferences and differences are a lot less important than public policy in determining whether an area has a functioning health care system.

There are obviously a lot of difficulties with public policy. First, it’s mainly done by politicians, so political climate and general popular opinion can limit the range of what policies can achieve. For example, the United States could never have created a government-run nationalized health care system given the current makeup of our decision makers. Second, achieving specific goals through policy can be kind of complicated and difficult – if you were the government and wanted to “fix the education system,” it’s not exactly clear what specific steps would reach that outcome, even if we could agree on what a good education system would look like. Third, the differences between a policy as carefully written down and a policy as actually implemented can be vast, so a great policy may end up being too difficult or complicated or expensive or just impossible to implement, or may end up being significantly watered down.

At the end of the day, though, policy is literally life and death. Whether a mentally ill teenager gets tased or shot by a police officer depends on law enforcement policy, training, and management. Whether a PWD can afford and access the medications and equipment they require to live. Policy determines how and why and for how long and under what circumstances people are institutionalized. Whether and how they are protected from abuse and neglect from caretakers and family. Whether and when and how they have children.

So in the coming weeks, I’ll be writing about policy. Good policy, bad policy, and everything in between. Policy often doesn’t feel as sexy or gripping as a lot of the other topics we discuss here, but I’m hoping you’ll find it as interesting and important as I do.

Signal Boost: Protesting at the Tory Party Conference

A (hopefully!) large group of disabled people will be protesting against the proposed benefits cuts outside the Tory Party conference tomorrow, Sunday 3rd October 2010. For details of where, times, etc, please see Disabled People Protest.

If, like me, you’re unable to go due to a lack of money and/or a lack of spoons then theUnited Front against benefits cuts has organised a “virtual protest”.

Read more at Where’s the Benefit? (And just read Where’s the Benefit? in general, because it is awesome.)