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The Forgotten AmericansIMPORTANT NOTICE: This article is provided solely for research and archival purposes. MCLE self-study credit is no longer available. Even if you follow the instructions and submit payment you will not be granted MCLE self-study credit. Please note that low-cost MCLE is provided by the California Lawyers Association, pursuant to Business and Professions Code section 6056. Eliminating bias against and providing access to justice for people with disabilities By Ellen R. Peck
In the summer of 2006, Marcus Fiesel, a 3-year-old with autism, was in foster care in Cincinnati, Ohio. One weekend, his foster parents taped up his hands, wrapped him in a blanket and placed him in a playpen in a locked closet without food or water. His foster parents, who received $1,000 every month for his care, then left home for the weekend to attend a family reunion. When they got home, Marcus was dead. The foster father burned the boy's body and hid it to conceal what had happened. After the crime was discovered, the foster parents lied to officials and the public, claiming Marcus had wandered off on a trip to a park when his foster mother had fainted. Although his foster parents are facing criminal charges, another issue is how to protect children like Marcus who have disabilities. Marcus is the third child with autism to be killed in the summer of 2006 in the United States. (http://thegimpparade.blogspot.com/2006/09/) People with disabilities are more frequently victims of crime People with disabilities are primary targets of crime and abuse. Adults with substantial disabilities were victims of violent and other major crimes at rates four to 10 times higher than that of the 30.6 million crime victims in the general population. In the 1990s, about 5 million disabled people were the victims of serious crimes annually in the United States. (Dan Sorenson, The Invisible Victims (March 2000).) Sexual abuse rates of disabled men and women are also significantly higher than in the general population. (Id.) Children with disabilities fare even worse. They experience abuse at a rate of abuse 3.44 times greater than children without disabilities, and children with behavior disorders were the victims of physical abuse at rates 7.3 times that of children without such behavior disorders. Disabled children are the victims of (1) sexual assault 5.5 times more; (2) of neglect 6.7 times more and (3) emotional abuse 7 times more than children who are not disabled. (Id.) The highest rates of crime and criminal abuse of all are against children and adults with psychiatric disabilities (Id.) The crime rate against people with disabilities is proportionately the highest in the country when compared to the 8,000 hate crimes, one million elder abuse victims, and one million spousal assault victims each year. (Id.) In California, only about 4.5 percent of these crimes are actually reported to authorities, compared to an average 44 percent report rate for the general population. (Id.) An estimated 80 to 85 percent of criminal abuse of residents in institutions is never reported to authorities. (Id.) One reason that crimes and abuse against disabled persons is underreported is often because their disability makes it difficult or impossible to report. Even where crimes have been reported, victims experienced lower rates of police follow-up, prosecution and convictions. Reasons include the difficulty in investigating cases, the lack of special skills and special training required for these cases among law enforcement, the isolation of and communication difficulties for some victims, and the negative stereotypes and prejudices that continue to contribute to discrimination against these victims. (Id.) Because of law enforcement lack of training, people with disabilities are frequently mistaken for perpetrators of crimes In late summer 2006, Daniel Beloungea, a person with epilepsy, was taking a daily walk in his Michigan neighborhood when he experienced a complex partial seizure, which left him in a state of semi-consciousness. Complex partial seizures are associated with repetitive involuntary movements, sometimes for 30 minutes or even longer, with post-seizure disorientation. Daniel needed to take a daily walk as a form of rehabilitation to help restore functioning in his legs, which had been impaired following brain surgery to treat his seizures. A passerby noticed Daniel acting erratically and called police to report his behavior. When officers arrived on the scene, they apparently assumed that Daniel's failure to respond to their questions and his erratic involuntary movements amounted to resistance, and failed to recognize the obvious signs of a seizure. Furthermore, they failed to inspect the medical alert bracelet he was wearing, which indicates clearly that he has epilepsy. According to police reports, when Daniel was unresponsive to police direction, the bag he was carrying was kicked by police from his hand. When he flailed his arms involuntarily, he was tasered, sending 50,000 volts of electricity through his body (risking serious injury or death), hit with a police baton, threatened at gunpoint and handcuffed behind his back. (The handcuffing itself is dangerous for persons experiencing a seizure, as it can lead to further seizure-related agitation and struggling, possibly causing asphyxiation or even cardiac arrest.) He was then prosecuted for assaulting police officers and disorderly conduct, notwithstanding considerable evidence, including the state's own mental health evaluation, confirming that his actions were involuntary and solely the product of a seizure. Because of an anomaly in Michigan law, Daniel Beloungea was forced to plead not guilty by reason of insanity, rather than being permitted to submit evidence that he lacked the mental and physical capacity to commit the crimes for which he was charged. Because state law requires that all persons who have been adjudicated not guilty by reason of insanity be committed for a mental health evaluation, a man who posed no risk to anyone was forced to languish in a penal institution housing violent criminal offenders (where he experienced at least two subsequent seizures). He was discharged from the psychiatric facility after a stay of more than three weeks. According to the Epilepsy Foundation, in addition to Daniel, too many other people who had experienced seizures have had encounters with police that have resulted in serious permanent injuries or even death. The foundation is once again calling for police, emergency medical personnel and other first responders to undergo training and implement protocols to ensure they properly respond in these kinds of situations. (http://www.epilepsyfoundation.org/epilepsyusa/beloungea.cfm) If people with disabilities can be forgotten by the criminal justice system, how do they fare in the civil justice system? From 1942-45, Glenn Elmer Peck served in the Army Air Force during World War II as a bombardier and rifle marksman trainer. After being constantly exposed to firing range gunfire and other loud noises without earplugs, he discovered after his military service that he had become hard of hearing. When he returned to civilian status at age 24, he needed a hearing aid to hear normal conversation and other noises. He filed a claim with the United States Government for his hearing loss. His claim was denied on the basis that he had a predisposition for hearing loss, since Glenn's father was also hard of hearing. Today, people with ADA claims do not fare much better than Glenn did in the late 1940's. Only one in 10 ADA lawsuits is won by the plaintiff. Attorneys who represent claimants before the Social Security Administration report that initial claims for disabilities are denied about 80 percent of the time. If Americans with disabilities have the least access or success with the justice system, they are nearly invisible in the media A recent Wall Street Journal article discussed the lengths publishers go to in order to portray diversity in race, ethnicity, religion, age, gender and disability in textbook images so that their books will sell to diversity-sensitive school districts. When it comes to portrayals of disabled people, non-disabled children are frequently placed in wheelchairs or given crutches to stand in to portray disabled children. It was estimated that at least three-fourths of the children portrayed as visibly disabled in Houghton Mifflin textbooks actually are not disabled. Children with hidden disabilities that may nevertheless alter their appearance in subtle ways are not represented in photos at all and their disabilities are not mentioned in the captions or text. (See http://thegimpparade.blogspot.com/ 2006/09/fake-disabled-children.html Friday, Sept. 1, 2006) In the entertainment industry, the "appearance" of diversity has become a substitute replacement for the representation of actual diversity in portraying people with disabilities. In Hollywood, some of the highest-paid non-disabled actors' portrayal of disability is awarded with applause and honors. For example, the "realism" of Hilary Swank in Million Dollar Baby got attention for being truthful about disability, as did Russell Crowe in A Beautiful Mind, Tom Cruise in Born on the Fourth of July, and Laura Inness as a doctor who had polio on the television show ER. All of these actors are able-bodied people portraying people with disabilities. Don't get me wrong — I have enjoyed the performance and salute the talent of these great actors. But people with disabilities have very few role models; they seldom get to see characters with disabilities played by people who are actually disabled. There is almost nowhere in mainstream public media where we can see people with disabilities portrayed as they actually exist. People with disabilities or without need more programming featuring people with disabilities (e.g., the television series, Life Goes On (about a boy with Down Syndrome, in which the actor actually had Down Syndrome); the television series C.S.I. (in which Robert David Hall, an actor who had both legs amputated following a tragic car crash portrays a pathologist who just happens to have had both legs amputated and uses prosthetic legs), and programs featuring Marlee Matlin (a deaf actress who frequently portrays strong and vibrant female characters who just happen to be deaf in a variety of movies and television shows, including The West Wing and Judging Amy). That people with disabilities are largely forgotten by the justice system and almost invisible in the media is surprising given their population demographics. The numbers in our population One fifth of the people on this earth have some type of disability. This estimated figure is agreed upon by both the United Nations and United States Census Bureau. (2000 U.S. Census.) Just how many Americans are disabled is still a mystery. Although the 2000 census found that almost 49.7 million Americans had disabilities, there are many indications that these numbers are low. Mirroring under representation in the media, the census figures may well underrepresent the actual number of Americans with disabilities, for the following reasons:
Roughly 17.4 percent of California's population are people with disabilities. This means that many California attorneys are likely to have clients who are disabled and come into contact with people with disabilities in their practice of law. Age: The 2000 Census figures show that Americans with disabilities fell into the following age groups: ages five to 20 (5.2 million); 21-64 (30.6 million); and 65 or over (14 million). As the "baby boomer" generation ages and begins to experience disabilities associated with aging, the figures in the last category are likely to increase dramatically. The mean earnings of full-time workers with disabilities were less than comparable workers without disabilities. The mean earnings of full-time workers age 16 to 64 with disabilities were $33,109, compared to $43,269 mean earnings for non-disabled workers.
• Ellen R. Peck, a former State Bar Court judge, is a sole practitioner in Escondido and a co-author of The Rutter Group California Practice Guide: Professional Responsibility. Certification
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