By Ariana Arzani
Historically, societies and states have systematically overlooked, ignored, and wholly denied the human rights of individuals with disabilities. In particular, the punitive nature of penal systems around the world only heightens the social control and abuse prisoners with disabilities face. According to former UN Special Rapporteur on Torture, Manfred Nowak, social norms traditionally held that the existence of a disability justified ‘far-reaching restrictions and interventions by the State into the dignity of human beings.’ This blog post explores the rights of incarcerated individuals with disabilities, and argues that their access to justice violates international legal frameworks.
Disability and the Law
“Access to justice” is a broad concept which encompasses people’s effective access to “the systems, procedures, information, and locations used in the administration of justice.” According to the UN, access to justice is a basic principle of the rule of law, and in its absence, people are “unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable.” Equal access to justice for all is particularly crucial for members of vulnerable groups, such as individuals with disabilities.
International human rights law has countlessly established that prisoners and detainees have human rights. Originally adopted in 1955 by the UN Congress on the Prevention of Crime and the Treatment of Offenders, the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs), or Nelson Mandela Rules, constitute the universally acknowledged minimum standards for the treatment of prisoners. The SMRs are broad in scope, addressing issues such as untried prisoners, personal hygiene, discipline, instruments of restraint, and more.
The rights of persons with disabilities is a comparatively new concept in the field of international law, but the bodies of persons with disabilities have been regulated by the state for centuries. Indeed, much has progressed since the internationally-codified “ugly laws” of the 16th through the 20th centuries, which made it illegal for “any person, who is diseased, maimed, mutilated or deformed in any way, so as to be an unsightly or disgusting object, to expose himself to public view.” The Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006, and prior to its adoption, very few conventions made mention of the rights of persons with disabilities, or did so in dismissive ways which did not acknowledge the full rights of such groups. For example, Article 5 (1) (e) of the 1950 European Convention on Human Rights accepted that detention of “persons of unsound minds” was an explicit exception to the right to personal liberty.
In contrast, the language of Article 13 (1, 2) of the CPRD discusses access to justice for persons with disabilities in a manner which retains the inherent dignity of persons:
- Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings.
- In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
The SMRs and the CPRD emphasize the importance of recognizing that persons with disabilities must enjoy full and effective access to human rights and fundamental freedoms, and both treaties underscore the inherent dignity and value of all persons, be they persons with disabilities or persons incarcerated in prisons.
Heightened Vulnerability for Prisoners with Disabilities
As human beings subject to domestic legal systems, persons with disabilities may be deprived of their liberties for a variety of reasons. However, prisoners with disabilities are entitled to enjoy their human rights on an equal basis with other prisoners, with no discrimination on the basis of their disability or any other grounds, as codified in international law. This following section analyzes the right of prisoners with disabilities to habeas corpus, a fair trial, and access to justice.
A. The Right to Habeas Corpus, a Fair Trial, and Access to Justice
Any person deprived of his or her liberty is entitled to “take proceedings before a court” that will decide on the lawfulness of the detention. All persons “shall be equal before the courts and tribunals,” and have the right to be treated without discrimination on any grounds while also being entitled to procedural equity. One of the minimum guarantees afforded to all prisoners under international human rights law is the right to be informed—in a language they understand —of the nature and charges against them, their right to legal counsel, and to the free assistance of an interpreter if they cannot understand the language used in the court. Such rights are particularly salient for prisoners with disabilities, who face different barriers in the enjoyment of such guarantees of equality. Some detainees with intellectual disabilities may face challenges which arise from the formal language, complex formulations of questions, and use of legal terms during court proceedings, precluding them from enjoying their right to a fair trial. In his 2017 paper published in the Southern California Interdisciplinary Law Journal, author Peter Blanck emphasizes the “non-obvious” nature of many disabilities, such as “cognitive disabilities, intellectual or mental disabilities, traumatic brain injuries, and learning impairments from which inmates cannot effectively read, write, and understand informational documents.” Further, some detainees with sensory disabilities may face serious barriers if no sign language interpreters are available for interpretation, infringing on their rights to habeas corpus, a fair trial, the right to be informed in a language they understand.
In an article published in the International Journal of Prisoner Health, author Jenny Talbot details her research into the UK prison system. Over a period of two and a half years, Talbot consulted professionals and practitioners of the criminal justice system in the UK and conducted interviews with prison staff and prisoners. The study highlighted several significant statistics: 20-30% of offenders have learning disabilities or difficulties that interfere with their ability to cope within the criminal justice system, 25% have an IQ of less than 80, and 20% of the prison population has a “hidden disability” that “will affect and undermine their performance in both education and work settings.”
The main finding in Talbot’s research was that “people with learning disabilities or difficulties are discriminated against personally, systematically and routinely as they enter and travel through the criminal justice system.” Without necessary accommodations, many prisoners with disabilities are denied their civil and political rights as enshrined in the ICCPR, CPRD, SMRs, as well as domestic legal instruments.
B. General prison conditions
Rule 1 of the SMRs states that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.” Article 10 (1) of the ICCPR affirms this notion, stating that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. As codified in the SMRs, states are required to provide detainees in their custody with access to health, exercise, drinking water, personal hygiene, windows and artificial light, and more. An analysis of jurisprudence and case studies demonstrates that such minimum rules for prisoners with disabilities are frequently not met.
In a 2017 article, Megan Gabbard Bruyns examines the accommodations provided to prisoners in South Africa’s correctional centers. She notes that the primary legal framework is found in Section 35 of the South African Bill of Rights which guarantees to “those who have been detained the right to conditions of detention that are consistent with human dignity, including exercise, adequate accommodation, nutrition, reading material, and medical treatment.”
The South African Department of Correctional Services policy states that “within the first six hours of admission” to a prison facility, the needs and risks of prisoners with disabilities must be assessed. Following this assessment, the incarcerated individual must provide the authorities with “all necessary information” related to their disability. This policy is problematic for prisoners with disabilities in several ways: first, the policy forces prisoners to disclose potentially sensitive information in situations with extreme power differences, and second, it assumes that prisoners are able to articulate their disabilities and are aware that they must share them.
Despite the codifications of accommodation policy, financial restraints have forced inmates in South Africa’s correctional centers to share assistive devices, such as wheelchairs. The sharing of assistive devices can cause extreme hardships for prisoners, and forces them to adapt to life without necessary accommodations, including “having to wear diapers because of inability to access a bathroom” or, as stated by a former Department of Correctional Services employee “walk around on [their] hands.” Such policies which do not provide reasonable accommodations for prisoners with disabilities violate both Rule 5 (2) of the SMRs and Article 2 (2) of CRPD. Such treatment is pervasive worldwide, as evidenced by recent Human Rights Watch reports on abuse and neglect of prisoners with disabilities.
Prisoners with disabilities undoubtedly retain human rights while also being entitled to increased rights for accommodation and access to justice. Despite this, states continue to intentionally or unintentionally accept that the presence of disabilities allows for far-reaching restrictions and regulations on the dignity of persons with disabilities. Direct and indirect discrimination also often pockmark the treatment of prisoners with disabilities. Despite these challenges solutions do exist, such as heightened transparency in detention centers and greater ratification of the CRPD Optional Protocol. With these protections, drastic changes can and must be made to account for severe gaps in human rights for persons with disabilities.
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