Gautam Gulati, Brendan D. Kelly, Alan Cusack, Shane Kilcommins, and Colum P. Dunne
There are over 10 million people in prisons worldwide and people with disabilities are grossly over-represented among them. The prevalence of intellectual disabilities, for example, amongst incarcerated populations ranges from 7-10% depending on jurisdiction.1 The United States, with just 4% of the planet’s population, houses a quarter of the world’s prisoners, of whom one third have at least one disability.2
In this context, there are multiple, overlapping injustices: people with disabilities are not only more vulnerable to miscarriages of justice compared to people without disabilities, but they also experience especially poor physical and psychological wellbeing in penal institutions.3 This is a long-standing public health problem that has become more urgent during the COVID-19 pandemic, which resulted in elevated mortality rates for people with disabilities in institutions.4
One way to reduce the scale of these problems is to incarcerate fewer people in the first place, especially people with disabilities. Prison should be a sanction of last resort. The crux of the matter is whether disability is adequately recognised and managed in the criminal justice system, especially at the policing stage, when pathways other than imprisonment might be identified. Evidence suggests that it is not.5
The United Nations’ (UN) Convention on the Rights of Persons with Disabilities (CRPD), which was adopted in 2006, offers a rights-based approach to this problem. The CRPD states that, “in order to help to ensure effective access to justice for persons with disabilities”, governments “shall promote appropriate training for those working in the field of administration of justice, including police and prison staff” (article 13(2)). Although 184 states have ratified the CRPD, how many have implemented such training?
States that are party to the CRPD must report on their compliance after two years initially and at least every four years thereafter. To evaluate adherence to article 13(2), we searched the UN Treaty Body Database, for the most recent reports submitted by all 184 state parties.6 We translated reports to English and extracted data relating to disability awareness training for law enforcement officers, additionally noting whether such training focused on people with intellectual disabilities.
Overall, 136 states (73.9%) submitted reports to the UN between 2010 and 2021, comprising 126 initial reports and 10 periodic reports. Seventy-six states (55.8%) provided information on disability awareness training, of which one quarter confirmed training police officers (n=34; 25%). In addition, certain countries trained members of the judiciary (n=42; 30.8%), court staff (n=16; 11.7%), prison officers (n=13; 9.5%), prosecutors (n=10; 7.3%), defence solicitors (n=8; 5.9%) and probation officers (n=4; 3%).
Of the 136 states who submitted reports, seven (5.1%) specifically mentioned awareness of intellectual disabilities, and five (3.7%) reported aspirations to develop easy-to-read materials or alternative formats for people with intellectual disabilities. In terms of specific initiatives, there was a wide range of programs for law enforcement officers in certain countries and jurisdictions, such as the United Kingdom, New South Wales (Australia), Israel, Singapore and the Republic of Korea.
The reports of 60 states did not provide evidence of awareness programmes. Some countries, such as Malawi, Namibia, Latvia, and Palau, highlighted additional barriers for people with disabilities in their criminal justice systems; for instance, removal of assistive devices (Namibia) and lack of legal representation (Uganda). Concerningly, Palau reported that there had been no cases of persons with disabilities trying to access the court system.
Overall, our analysis of countries’ reports to the UN indicates that, 15 years after the CRPD was developed, almost half the states party to the Convention do not report compliance with article 13(2). It is possible that more countries are compliant in practice but did not include this in their reports. Equally, some of the reported compliance might be aspirational rather than actual. Either way, many countries ought to place greater emphasis on article 13(2) and provide accurate reports on progress.
Police training matters. If disability is not recognised early in the criminal justice process, there can be no safeguards for equal access to justice, no active consideration of disability-specific alternatives to incarceration, and no assurance of physical and mental healthcare on an equivalent basis with others, as envisaged in the Nelson Mandela Rules.7
This issue has never been more urgent, given the large number of prisoners with disabilities, their increased risk of physical and mental ill-health, and their elevated risk from COVID-19. It is essential that disability is recognised as early as possible in the criminal justice process if we are to reduce the risks of inappropriate incarceration, poor health, and even death from COVID-19 in people with disabilities. Training law enforcement officers may in itself be a public health intervention.
Gautam Gulati, MD, is Adjunct Professor at the School of Law, University of Limerick, Ireland. Email: firstname.lastname@example.org
Brendan D Kelly, PhD, is Professor of Psychiatry at Trinity College, Dublin, Ireland.
Alan Cusack, PhD, is Director of Policing Studies at the University of Limerick, Ireland.
Shane Kilcommins, PhD, is Professor of Law at the University of Limerick, Ireland.
Colum P Dunne, PhD, is Director of Research at the School of Medicine, University of Limerick, Ireland.
- M. Hellenbach, T. Karatzias, M. Brown, “Intellectual Disabilities Among Prisoners: Prevalence and Mental and Physical Health Comorbidities”, J Appl Res Intellect Disabil.30/2 (2017), pp. 30-241.
- Learning Disabilities Association of America, Disability and Criminal Justice Reform. Available at https://ldaamerica.org/lda_today/disability-and-criminal-justice-reform/
- United Nations Office on Drugs and Crime, Handbook on Prisoners with Special Needs (2009). Available at: https://www.unodc.org/pdf/criminal_justice/Handbook_on_Prisoners_with_Special_Needs.pdf
- Office of the High Commissioner for Human Rights, Covid-19 and the Rights of People with Disabilities (2020). Available at: https://www.ohchr.org/Documents/Issues/Disability/COVID-19_and_The_Rights_of_Persons_with_Disabilities.pdf
- G. Gulati, A. Cusack, J. Bogue, A. O’Connor, V. Murphy, D. Whelan, W. Cullen, C. McGovern, B.D. Kelly, E. Fistein, S. Kilcommins, C.P. Dunne, “Challenges for people with intellectual disabilities in law enforcement interactions in Ireland; thematic analysis informed by 1537 person-years’ experience,” Int J Law Psychiatry 75 (2021), pp. 101683.
- United Nations, Treaty Bodies Database. Available at: https://tbinternet.ohchr.org/SitePages/Home.aspx.
- United Nations Office on Drugs and Crime, The Standard Minimum Rules on The Treatment of Prisoners (2015). Available at: https://cdn.penalreform.org/wp-content/uploads/1957/06/ENG.pdf