Abstract

Excerpted From: Camille A. Nelson, Frontlines: Policing at the Nexus of Race and Mental Health, 43 Fordham Urban Law Journal 615 (April, 2016) (350 Footnotes) (Full Document)

A surprising void exists in three bodies of literature, each probing similar justice concerns from different vantage points. Criminal law scholars, analyzing a broken justice system, have proposed solutions to police misconduct and questionable uses of force against vulnerable populations. Critical Race scholars and activists have questioned the exercise of police discretion as it disparately impacts people of color, particularly African Americans and Latino/as, with whom police engage. Disability scholars and activists, with few exceptions, have mainly focused on physical disability to the exclusion of mental health, and have largely ignored the compounding impacts of racism on disability.

This Article explores the interacting constitutive dynamics at work in the construction of the criminal subject and, further, encourages study of the ways that disability is racially constructed, just as racism is disabling in the criminal justice system. Race and disability morph into one another to construct the perfect criminal who is perceived as requiring the use of disciplinary force and punishment. This Article analyzes the ways in which disability, especially mental illness, and negative racialization (read non-White, in particular Black and Latino/a), are mutually reinforcing and constitutive of the conceptual offender in policing interactions. I refer to this process as “felonization,” the move to construct criminality, ideally in heightened form. This is the dynamic through which a defiant suspect is constructed as a subjectively deviant and dangerous criminal who is, in turn, the proper focus of heightened law enforcement scrutiny.

I posit two different intersecting criminal justice concerns, both intricately intertwined with issues of race and mental health. First, picking up from where my earlier Article, Racializing Disability, Disabling Race: Policing Race and Mental Status, left off, this Article will explore a plausible explanation for policing incidents that have attracted national attention. My theory is that Suspect Identity Construction (SIC) is a contingent variable in policing interactions. Negatively racialized suspects who are seen by police as defiant or disrespectful are constructed by police as “crazy,” the suspect's judgment implicated by their lack of deference, regardless of their actual Diagnostic and Statistical Manual of Mental Disorders-5 (DSM) status.

This construction, in turn, increases the likelihood that the encounter will escalate or devolve. I refer to this as a “felonizing” process, which is to say that felonization (the process by which a suspect is transformed into a more serious offender deserving of harsher criminal justice responses) is a negative spiral that tracks identity and consequent marginalization. It encompasses the strategic police moves to construct suspects into misdemeanor offenders, and the more consequential move to construct misdemeanor offenders into felons. In this way, felonization is an overbroad and encompassing policing maneuver. Such interactions are particularly fraught for individuals who are mentally or physically vulnerable, as they may struggle or be unable to comport their behavior to police dictates for obedience and compliance.

According to the Department of Health and Human Services' Office of Minority Health, Black people in the United States are significantly more likely than White people, indeed twenty times more likely, to report having had serious psychological distress. Not surprisingly, people who exhibit mental health challenges are more likely to attract heightened police scrutiny and reasonable suspicion; they are less likely to respond to police in ways that comport with police behavioral expectations and may, thereby, prompt unfortunate police escalation. Moreover, even those who are not emotionally or mentally vulnerable experience the negative psychological impact of racism on their mental and physical well-being.

Further adding to a debilitating situation, police subjectively interpret these racialized and ableist encounters as necessitating a heightened, often forceful, response, no matter how relatively minor the nature of the precipitating contact. Thus, despite ostensible police intentions, their interactions and behavior towards noncompliant and non-deferential suspects of color often escalate the exchange, thereby creating a paradoxical downward spiral, which is subsequently (and perhaps opportunistically) used by police to justify an arrest or the use of force.

The corollary concern that will be explored in this Article is the way in which people of color, who may not be noticeably mentally impaired, or who might suffer from episodic or latent mental illness, can be provoked into a state of mental illness through brutalizing police encounters. I explore both of these connected concerns through an examination of the Sandra Bland case, as her life and death may evidence the felonization process, and straddle situational defiance dynamics.

Ms. Bland's interaction with the arresting officer, specifically her questioning of his rationale for stopping her, and her contestation of his rationale, may have been interpreted by the officer as insufficiently deferential (for a Black woman). Thereafter, subjectively in the mind of the officer, his interpretation of this lack of deference may have justified his use of escalating police tactics, and led to Ms. Bland's subsequent arrest. Given Ms. Bland's death in police custody from an apparent suicide, any latent mental vulnerabilities from which she suffered were no doubt exacerbated by her arrest and jailing for an incident that commenced with an improper lane change.

Part I of this Article briefly explores disabling constructions that create a reality of disparate police interactions for people of color and mentally vulnerable individuals. Admittedly, much of this literature has examined police encounters in a bifurcated manner: race, or disability. This analysis, however, ignores the interwoven constitutive social constructions of racialized disability, as well as the ways in which ableism informs social conceptions of race. This Part will also discuss societal factors that desperately impact the mental well-being of people of color in the United States.

Part II analyzes criminal law encounters in which police officers have escalated arguably minor interactions with people of color in the face of subjectively interpreted disrespect and noncompliance. It is posited in this Article that such situational disobedience has deep historical roots, and is connected to racialized expectations of deference to White authority figures on the part of people of color. When such expectations are not met, the law enforcement authorities exercise their discretion to “felonize” the person with whom they are interacting--meaning, through their escalating tactics, the authority figures transform an otherwise minor encounter into a criminal event in order to justify their heightened scrutiny, and eventual use of force.

Part III examines the Sandra Bland arrest and her death in custody. This Part asserts that for such a minor infraction, the interaction between Ms. Bland and the arresting officers should never have escalated to the point of incarceration for an offense that might merit a mere warning. It is further suggested in the section that Ms. Bland's underlying mental vulnerabilities were exacerbated by ongoing systemic racial disparities, as well as the individual disparate treatment she endured.

In conclusion, this Article calls first for interdisciplinary study of these biased interactions; secondly, for improved police policies, training, and practices underwritten by this interdisciplinary information; third, for fortified training dictates with data driven incentives and accountability; and fourth, for these undertakings to be coupled with serious interdisciplinary dialogue about the role of unconscious racism and ableism, as well as its structural and individual machinations. To continue to do otherwise has dire consequences for people of color who are mentally vulnerable, or whose victimization and structural subordination is societally disabling, as well as for policing efficacy.

[. . .]

“[T]he aggressive nature of proactive policing may have implications not only for police-community relations but also for local public health. In fact, the significant associations between both health outcomes and respondent perceptions of procedural justice suggest that police-community relations and local public health are inextricably linked.”

Based upon the aforementioned historical, medico-legal, and social milieu, I conclude that racial discrimination is abusive. Its dire consequences are significant, debilitating, destructive, and disabling. “In considering racism's impact on health, the most straightforward case is that racism makes the lives of the disadvantaged more stressful and thus leads to negative mental and physical health consequences.” From education to traffic stops, to searches and seizures, behaviors are assessed in disparate and disproportional ways, depending on the race of the actor. SIC is a weighty variable around which the assessment of both behavior and physical appearance revolves, with significant life (or death) consequences. Our continued inability to address misdiagnoses, disciplinary punishment, and (implicit) bias furthers “societal disablement.”

Such assessments take on added salience given the consequences that frequently follow these ascriptions. In policing, it is all the more troubling given the heightened stakes. As Ruth Wilson Gilmore's definition of racism as “group-differentiated vulnerability to premature death” attests, the continuum of disparate consequences range from disciplinary to lethal punishment. Thus, “[t]hese power dynamics reveal[] a sliding scale of restraint, coercion, force and violence unequally deployed against ... negatively racialized individuals with mental illness.”

The matters discussed in this article are increasingly important. Recent police shootings, as well as acts of gun violence, have again called into question concerns about mental health, both of victims and perpetrators. “[As we know], deinstitutionalization and the growing wealth gap have produced significant homeless populations in many urban areas.” As I suggested in Racializing Disability, Disabling Race, “If racialization constructs impairment, should the gaze of rights discourse not be refocused on its effects? If so, discrimination is a methodology of social disability that should be studied in this broader sense.”

In this Article, I have attempted to reveal and analyze some of the ways in which race and disability are mutually constitutive, both historically and in contemporary society. To advance the actualization of inclusive justice, these reinforcing dynamics must first be surfaced. We must be aware and critically conscious of the intersecting dynamics of racialization and disablement in order to “advance[ ] ... a race conscious challenge to ableism,” and a (dis)ability informed challenge to racism, in order to further a more holistic notion of justice, especially in the policing context.

Dean and Professor of Law, American University Washington College of Law.