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Disabled Rights

The fact is that Americans entering prison are already sicker and poorer than other Americans.

According to reports from Washington, the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) may come up for a vote in the Senate (again) this week. The last time it came up, two years ago, it did not pass.

On the face of it, the Convention does not seem in conflict with American laws or values. The core principles spelled out in the Convention are respect for the inherent dignity of all persons, the right to individual autonomy including the freedom to make one’s own choices, non-discrimination against persons on the basis of disabilities, full participation and inclusion in society, equality of opportunity, accessibility, respect for the evolving capacities of children with disabilities, and respect for the right of children with disabilities to preserve their identities.

Initially negotiated under President George W. Bush and signed by President Barack Obama in 2009, the Convention has been ratified by 146 countries and is backed by virtually all US disability organizations, veterans’ organizations and women’s organizations. According to supporters, the Convention reaffirms many of the same safeguards already legislated in the Americans With Disabilities Act, including access to education and prohibitions of discrimination in hiring. And while it does not in any way weaken US domestic law or surrender US sovereignty, it provides a clear statement that America has joined with the international community in recognizing the rights of all people regardless of abilities or disabilities.

The most vocal opponent, pressing Republicans to vote nay, has been the Home School Legal Defense Association which maintains that the Convention could undermine the rights of parents, supersede US law and compel government funding of abortions. (There is nothing in the Convention that suggests this would be the case, but “abortion” is always a good buzz word for ginning up opposition to just about anything.).

Our failure to ratify UNCRPD is consistent with US refusal to sign other human rights treaties. For example, the US is one of only three countries not to have signed the Convention on the Rights of the Child. (The other two are South Sudan and Somalia.) We haven’t ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the world’s primary document on women’s equality. And we haven’t signed The Convention against Enforced Disappearance, which prohibits the secret detention and abduction of people by the state.

Opposition to ratifying all of these treaties follows a fairly consistent line of argument: International treaties infringe on US autonomy and sovereignty, and anyway, “we” don’t need these treaties since we already are “better” than the rest of the world. Regarding the UNCRPD, Will Estrada, HSLDA’s Director of Federal Relations declared, “Our country has been a world leader for people with disabilities. We don’t need to ratify this treaty to do that.”

Disability and Poverty

Mr. Estrada is incorrect. In the United States close to 38% of working age adults with severe disabilities live in poverty; the children of poor parents are substantially more likely than children of non-poor parents to have a physical or mental disability that limits their activities and having a child with chronic illnesses or disabilities is associated with greater poverty for parents.

American responses to disability are based on needs rather than on rights; that is, we allocate resources to help individuals on the basis of shifting definitions and thresholds of “neediness” rather than on a stable foundation of inherent rights to goods such as food, housing and healthcare. We also tend to be suspicious of claims of neediness. Services for those who are disabled typically require recipients to spend great amounts of time and energy certifying their eligibility and place a great deal of power in the hands of doctors, courts and bureaucrats to decide whose needs are legitimate. Our safety nets for people too disabled to work – SSDI (Social Security Disability Insurance) and SSI (Supplemental Security Income) – allot average monthly stipends of $1,186.60 and $536.75 respectively. That is not enough to cover the cost of daily necessities of life in most American cities, let alone sufficient for disabled people to live with dignity.

The higher SSDI are provided to individuals who have worked a sufficient number of years for employers who paid into Social Security; SSI is for those who have either been unable to work or whose employers did not pay into Social Security. At this time nearly 8.4 million people receive SSI. More than half of those recipients have been diagnosed with a mental disorder, and the majority of recipients are women (about 55%). These large numbers suggest either that as a nation we are losing our minds and / or that millions of Americans submit to being labeled mentally ill in order to receive the $536.75 per month that allows them access to (minimal) food and shelter in an economic climate that has not been friendly towards the 90% of us who are not born into wealth.

Disability and Punishment

The number of Americans receiving SSI went up at about the same rate as the number of Americans receiving welfare went down in the wake of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (so-called “welfare reform”). Shifting people from welfare to SSI may be seen as a simple bookkeeping ploy, but by labeling certain people or groups as “needy” or “disabled,” we in fact define them as weak, as lacking in the attributes that we as a society admire. Indeed, given the negative qualities associated with need and weakness in American culture, disabled individuals are more likely than other Americans to become targets of correction and punishment.

According to a recent report by the National Center for Special Education Research forty-seven percent of young adults with disabilities report having been stopped by police for other-than-a-traffic violation and twenty-three percent report having been arrested. These rates are twice those for youth in the general population. Young adults with disabilities enter the juvenile correctional system at rates four to five times those of non-disabled youth. An estimated 37 percent of youth in state juvenile corrections facilities are eligible for special education and related services under IDEA, yet 16 percent of youth in short-term youth detention facilities, 52 percent of those in long-term youth corrections facilities, and 71 percent of those in adult corrections facilities were not enrolled in any kind of educational program during their incarceration. And the school to prison pipeline disproportionately picks up disabled youth of color.

Involvement with the juvenile justice system increases one’s probability for involvement with the adult correctional system. With the highest incarceration rate in the world, over seven million Americans are under some form of correctional supervision. Over half of the incarcerated population has a serious mental health issue and 40% suffer from chronic physical illness. Among women the numbers are even bleaker. Of the 47 formerly incarcerated Massachusetts women whom I have come to know over the past six years, 81% live with chronic physical illnesses including asthma, high blood pressure, heart disease, liver disease, Hepatitis B, Hepatitis C, HIV, chronic headaches, chronic pain, arthritis, disk degeneration, cancer and unresolved gynecological problems. Most live with more than one of these health challenges and more than half also have been identified as having learning disabilities. While unhealthy prison conditions coupled with the poor employment prospects facing ex-offenders partly explain the substandard health profile of Americans involved with the correctional system, the fact is that Americans entering prison are already sicker and poorer than other Americans.

Health, Wealth and Moral Worth

Americans are no more mean-spirited than people in the 146 countries that have ratified the United Nations Convention on the Rights of Persons with Disabilities. When I read books or see movies that describe cultures in which disabled people are mocked, teased or even killed, I am thankful for our sense of decency, for the Americans With Disabilities Act, for the accommodations (however deficient they may be) for disabled people. At the same time, however, I can’t help but notice that we are criminalizing disability. And that trend, while particularly dramatic during this age of mass incarceration, is deeply rooted in American culture. Since the time of the Puritans, Americans have identified good health (as well as wealth) with moral worth – with living an estimable life style, with working hard, “taking care of oneself,” doing the “right thing.” This association between health and moral worth is neither natural nor universal; in many cultures people who struggle with pain, illness or disability are recognized for having greater spiritual gifts, for being closer to or chosen by God or for developing greater sensitivity to the suffering of others. In our culture people living with disabilities are recognized as having greater needs – and we do a great deal to meet those needs. But we have not yet recognized that while needs make one “needy,” rights give pride, autonomy and dignity.

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