Skip to main content Accessibility help
Hostname: page-component-684899dbb8-8hm5d Total loading time: 0.906 Render date: 2022-05-21T16:56:47.689Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true }

Book contents

22 - In the Pursuit of Justice: Advocacy by and for Hyper-marginalized People with Psychosocial Disabilities through the Law and Beyond

Published online by Cambridge University Press:  20 August 2021

Michael Ashley Stein
Harvard Law School
Faraaz Mahomed
Wits University
Vikram Patel
Harvard Medical School
Charlene Sunkel
Global Mental Health Peer Network
Get access


Disabled advocates’ work has resulted in many domestic and international laws enshrining equal rights to access, opportunity, and inclusion, yet implementation lags far behind. Even where disability rights laws carry force, disabled people at the margins of the margins face appalling human rights violations, many deriving from social and legal structures designed to enact harm on marginalized, exploited, and targeted communities. Yet even laws meant to protect disabled people in theory often enable abuse and harm in reality, such as guardianship and involuntary commitment laws that may contravene the Convention on the Rights of Persons with Disabilities. Additionally, ableist oppression does not impact all disabled people equally, both across different disabilities, and among disabled people differentiated by race, gender, class, sexuality, language, or nation.

In this chapter, we provide an overview of existing U.S. and international legal frameworks governing rights, freedoms, and legal capacity for people with psychosocial disabilities, and then discuss applications of those laws and policies in current contexts. In both sections, we describe harms disabled people experience in the United States, ways in which legal structures enable or fail to prevent those harms, and potential avenues for legal and nonlegal advocacy. We highlight ways in which current law fails to adequately recognize people with psychosocial disabilities as full persons with autonomy and dignity.

Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)


Addington v. Texas, 441 U.S. 418 (1979).Google Scholar
Albiges, M. (May 17, 2019). Thousands in mental health crisis are handcuffed by police. The state wants to cut that number. The Virginian-Pilot.`/virginia/article_c728d742-78ab-11e9-a85c-a733fb0ae39a.html.Google Scholar
Alexander, M. (2010). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.Google Scholar
Allely, C. (June 22, 2017). Are autistic people at greater risk of being radicalised? The Conversation.–76726.Google Scholar
Altiraifi, A. & Novack, V. (February 20, 2019). Efforts to address gun violence should not include increased surveillance. Center for American Progress. Scholar
American Bar Association Commission on Law and Aging (2018). Capacity Definition & Initiation of Guardianship Proceedings (Statutory revisions as of December 31, 2018). Scholar
American Bar Association Commission on Law and Aging (2018). Conduct and Findings of Guardianship Proceedings (Statutory revisions as of December 31, 2018). Scholar
American Bar Association Commission on Law and Aging (2018). Monitoring Following Guardianship Proceedings (Statutory revisions as of December 31, 2019). Scholar
American Bar Association Commission on Law and Aging (2018). Representation and Investigation in Guardianship Proceedings (Statutory revisions as of December 31, 2018). Scholar
Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101. (2009).Google Scholar
Amster, R. (2003). Patterns of exclusion: Sanitizing space, criminalizing homelessness. Social Justice, 30(1), 195221.Google Scholar
Angwin, J., Larson, J., Mattu, S., & Kirchner, L. (May 23, 2016). Machine bias. ProPublica. Scholar
Autistic Self Advocacy Network. (March 9, 2016). ASAN joins letter opposing harmful mental health bill. Scholar
Barnes, B. (August 29, 2019). Targeted: A family and the quest to stop the next school shooter. The Oregonian. Scholar
Beers v. Attorney General United States, 927 F.3d 150 (3rd Cir. 2019).Google Scholar
Beers v. Barr, Attorney General, et al., 2020 WL 2515441 (Mem) (2020).Google Scholar
Benjamin, R. (2019). Race after Technology: Abolitionist Tools for the New Jim Code. New York: Polity.Google Scholar
Ben-Moshe, L. (2020). Decarcerating Disability: Deinstitutionalization and Prison Abolition. Minneapolis: University of Minnesota Press.CrossRefGoogle Scholar
Boatner, C. (October 15, 2019). ‘They probably thought I was a criminal’: Baker Acted students say wearing handcuffs worsens their experience. University Press. Scholar
Bowman, S. (November 25, 2019). Mental health and homelessness: An update. Resources to Recover. Scholar
Brady Handgun Violence Prevention Act, 18 U.S.C.A. §§ 921–922.Google Scholar
Brief for the American Civil Liberties Union et al. as Amicus Curiae, City and County of San Francisco v. Sheehan, 575 U.S. __ (2015), Scholar
Bristol Township School District v. Z.B., 2016 WL 161600 (E.D. Pa. 2016).Google Scholar
Chen, M. Y. (2012). Queer Animality. In Chen, M. Y., Animacies: Biopolitics, Racial Mattering, and Queer Affect. Durham, North Carolina: Duke University Press. 89126.CrossRefGoogle Scholar
Chisholm, G. D. (2013). A yawning black abyss: Section 35 and the equal protection of women in the Commonwealth of Massachusetts. Suffolk University Law Review, 46(4), 10331065. Scholar
Cohen, A. (2016). Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. New York: Penguin Press. 318319.Google Scholar
Conservatorship of Davis, 124 Cal. App. 3d 313 (1981).Google Scholar
Cottrol, R. J. & Diamond, R. T. (1991). The second amendment: Toward an Afro-Americanist reconsideration. Georgetown Law Journal, 80, 309361. Scholar
Cramer, C. E. (1995). The racist roots of gun control. Kansas Journal of Law and Public Policy, 4(17). Scholar
Dearden, L. (March 2, 2018). Autistic teenager who planned Isis-inspired terror attack in Cardiff jailed for life. The Independent. Scholar
Definition of “disability,” 28 C.F.R. § 35.108 (2016).CrossRefGoogle Scholar
District of Columbia v. Heller, 554 US 570 (2008).Google Scholar
Ditkowsky, M. (2019). Choice at risk: The threat of adult guardianship to substantive and procedural due process rights in reproductive health. National Lawyers Guild Review. Scholar
Doward, J. (May 25, 2008). Inside bizarre world of the Big Friendly Giant. The Guardian. Scholar
Ellen, B. (November 29, 2015). Austerity, not ignorance or laziness, lies at the heart of eating problems in the young. The Guardian. Scholar
Erevelles, N. (2014). Crippin’ Jim Crow: Disability, Dis-location, and the School-to-Prison Pipeline. In Ben-Moshe, L., Chapman, C. & Carey, A. C., Disability Incarcerated: Imprisonment and Disability in the United States and Canada New York: Palgrave MacMillan. 8199.Google Scholar
Existing facilities, 28 C.F.R. § 42.521 (2003).CrossRefGoogle Scholar
Fluellen, R. & Trone, J. (2000). State sentencing and corrections program issues in brief: Do drug courts save jail and prison beds? Vera Institute of Justice. Scholar
Foscarinis, M. (1996). Downward spiral: Homelessness and its criminalization. Yale Law & Policy Review, 14(1), 163. Scholar
Franklin v. Sessions, 291 F.Supp.3d 705 (W.D. Pa., 2017).Google Scholar
Gray, H. (2016). State laws related to involuntary commitment of individuals with substance use disorder and alcoholism – part 2 of 2. National Alliance for Model State Drug Laws. NAMSDL News: Subject Matter Analysis. Scholar
Hamilton-Smith, G. (September 4, 2018). The endless punishment of civil commitment. The Appeal. Scholar
Heatherton, C. & Camp, J. T. (October 28, 2016). Broken windows policing and institutionalised racism: An extract from ‘Policing the planet: Why the policing crisis led to #BlackLivesMatter.’ The Institute of Contemporary Arts. Scholar
Hill, S. A. (2021). Bail reform and the (false) racial promise of algorithmic risk assessment. UCLA Law Review 68 (in press).Google Scholar
Inadmissibility on Public Charge Grounds, 84 FR 41292.Google Scholar
International Justice Resource Center (2019). Forced sterilization: Developments in international human rights law 2016–2018. Scholar
In re Det. of R.H., 178 Wash. App. 941 (2014).Google Scholar
In re Grady, 426, A.2d 467 (N.J. 1981).CrossRefGoogle Scholar
In re Hayes, 608 P.2d 635 (Wash. 1980).Google Scholar
In re J.C., 803 So. 2d 38 (La. 2001).CrossRefGoogle Scholar
In re Guardianship of Moe, 81 Mass. App. Ct. 136 (2012).Google Scholar
Johnson, M. & Strauss, V. (April 25, 2017). Why are we criminalizing behavior of children with disabilities? The Washington Post. Scholar
Kaba, M. (December 7, 2014). Police “reforms” you should always oppose. TruthOut. Scholar
Kansas v. Hendricks, 521 U.S. 346 (1997).Google Scholar
Keyes v. Sessions, 282 F.Supp.3d 858 (M.D. Pa., 2017).Google Scholar
K.W. ex re. D.W. v. Armstrong (D. Idaho 2016; 9th Cir. 2015).Google Scholar
Landberg, J. & Ciolfi, A. (May 2016). Suspended progress report. Legal Aid Justice Center, JustChildren Program. Scholar
Lewis, T. A. (June 2019). Concerns re disability/deaf rights communities’ responses to policing systems’ violence. Scholar
Lewis, T. A. (January 2020). Creating disability justice: Understanding the fullness of Deaf/Disabled communities. Session presented at the National LGBTQ Task Force’s Creating Change conference, Dallas, TX.Google Scholar
Lewis, T. A. (n.d.). Perspectives in belonging: Talila Lewis. Othering & Belonging Institute We Too Belong Report. Scholar
Lewis, T. A. (August 27, 2019). Trump’s rule attacking disabled and low-income migrants has violent history. TruthOut. Scholar
Lurijio, A. J. (2008). The first 20 years of drug treatment courts: A brief description of their history and impact. Federal Probation Journal, 72(1). Scholar
Mai v. United States, 952 F.3d 1106 (9th Cir. 2019).Google Scholar
Meronek, T. & Meiners, E. (May 31, 2018). The prison-like public hospital systems disproportionately packed with gay men. The Advocate. Scholar
Metzl, J. M. (2010). The Protest Psychosis: How Schizophrenia became a Black disease. Boston, Massachusetts: Beacon Press.Google Scholar
Mont. Code Ann. § 53-21-126 (2005).CrossRefGoogle Scholar
Moore, L. (March 28, 2016). Mother/activist, Kerima Çevik, tells why police crisis/disability training is not the answer. POOR Magazine. Scholar
Morgan, J. (January 2017). Caged in: The devastating harms of solitary confinement on prisoners with physical disabilities. American Civil Liberties Foundation. Scholar
Morgan, T. (August 30, 2018). The NRA supported gun control when the Black Panthers had the weapons. History Stories. Scholar
Muench, J. & Hammer, A. M. (March 1, 2010). Adverse effects of antipsychotic medications. American Family Physician, 81, 617622. ScholarPubMed
Netherland, J. & Hansen, H. (2017). White opioids: Pharmaceutical race and the war on drugs that wasn’t. Biosocieties, 12(2), 217238. ScholarPubMed
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).Google Scholar
New York Lawyers for the Public Interest, Inc., (2005.) Implementation of “Kendra’s Law” is severely biased. Scholar
Patrick v. Success Academy Charter Schools, 354 F.Supp.3d 185 (E.D. NY 2018).Google Scholar
Pickens, T. A. (2019). Black Madness: Mad Blackness. Durham, North Carolina: Duke University Press.Google Scholar
Pishko, J. (September 8, 2016). The FBI accused him of terrorism. He couldn’t tie his shoes. Esquire. Scholar
Price, M. (2011). Assaults on the Ivory tower: Representations of Madness in the Discourse of U.S. School Shootings. In Price, M., Mad at School: Rhetorics of Mental Disability and Academic Life. Ann Arbor, Michigan: The University of Michigan Press. 141175.CrossRefGoogle Scholar
Rehabilitation Act of 1973, 29 U.S.C.A. § 701. (2014).Google Scholar
Richardson, R., Schultz, J., & Crawford, K. (February 13, 2019). Dirty data, bad predictions: How civil rights violations impact police data, predictive policing systems, and justice. New York University Law Review Online, 24, 192234.Google Scholar
Ridgely, M.S., Borum, R., & Petrila, J. (2001). The effectiveness of involuntary outpatient treatment: empirical evidence and the experience of eight states. Rand Institute for Civil Justice. Scholar
Rogers, S. & Rosenthal, H. (December 12, 2013). Mental health advocates blast Rep. Tim Murphy’s bill as a costly step backward, to the days when a mental illness diagnosis was a life sentence. National Coalition for Mental Health Recovery, National Disability Rights Network, Bazelon Center for Mental Health Law. Scholar
Salzman, L. (2011). Guardianship for persons with mental illness – a legal and appropriate alternative? Saint Louis University Journal of Health Law & Policy, 4(249), 314327. Scholar
Schweik, S. M. (2009). Race, Segregation, and the Ugly Law. In Schweik, S. M., The Ugly Laws: Disability in Public. New York: New York University Press.Google Scholar
Seevers, R. (June 16, 2016). Making hard time harder: Programmatic accommodations for inmates with disabilities under the Americans with Disabilities Act. Disability Rights Washington, AVID Prison Project.–pdf-version.pdf.Google Scholar
Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535 (1942).Google Scholar
Smith, s. e. (February 1, 2017). ‘When you try to stop it, nothing happens’: A Q&A on the history of coerced sterilization in California. Rewire. Scholar
Steiner, B. D. & Argothy, V. (2001). White addiction: Racial inequality, racial ideology, and the war on drugs. Temple Political and Civil Rights Law Review, 10, 443.Google Scholar
Stern, A. M., Novak, N. L., Lira, N., O’Connor, K., Harlow, S. & Kardia, S. (2017). California’s sterilization survivors: An estimate and call for redress. American Journal of Public Health, 107(1), 5054. ScholarPubMed
Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978).Google Scholar
Treatment Advocacy Center. (2011). Emergency hospitalization for evaluation: Assisted psychiatric treatment standards by state. Scholar
Turner, M. M, Funge, S. P. & Gabbard, W. J. (2018). Victimization of the homeless: Perceptions, policies, and implications for social work practice. Journal of Social Work in the Global Community, 3(1), 112. Scholar
Tyler v. Hillsdale County Sheriff’s Department, 837 F.3d 678 (6th Cir. 2016).Google Scholar
The United Nations. (2006). Convention on the Rights of Persons with Disabilities. Treaty Series, 2515, 3.Google Scholar
U.S. Department of Education. (March 2014). Civil Rights Data Collection: Data snapshot: School discipline. Scholar
U.S. National Council on Disability. (2016). CRPD. Scholar
U.S. v. Rehlander, 666 F.3d 45 (1st Cir. 2012).Google Scholar
Vallas, R. & Fremstad, S. (September 19, 2014). Disability is a cause and consequence of poverty. Talk Poverty. Scholar
Ware, S., Ruzsa, J & Dias, G. (2014). It Can’t be Fixed because It’s Not Broken: Racism and Disability in the Prison Industrial Complex. In Ben-Moshe, L., Chapman, C. & Carey, A. C., Disability Incarcerated: Imprisonment and Disability in the United States and Canada. New York: Palgrave MacMillan. 163184.Google Scholar
Wiltz, T. (September 11, 2019). ‘Gravely disabled’ homeless forced into mental health care in more states. Pew Trusts. Scholar
Withers, A. J. (2012). Disability Politics and Theory. Black Point, Nova Scotia: Fernwood Publishing.Google Scholar
Wright, S. E. (1993). Blaming the victim, blaming society or blaming the discipline: Fixing responsibility for poverty and homelessness. The Sociological Quarterly, 34(1), 116.CrossRefGoogle Scholar
Yusuf, T. (May 24, 2017). A close call with homelessness shatters victim-blaming myths. The Seattle Globalist. Scholar

Save book to Kindle

To save this book to your Kindle, first ensure is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the or variations. ‘’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats