In Chapter 1 of this text, you were able to see how historical attempts to eradicate mental disorders, and the mistreatment and confinement of people with mental disorders, came to be challenged by both evolving social ideas and by scientific and legal developments that helped make change possible. As social activists were criticizing overflowing state hospitals, the development of psychiatric medications and the passage of the Community Mental Health Act in 1963 were making it increasingly possible for people with mental disorders to function outside of hospitals. Together, these forces led to the reduction and closure of institutions that resulted in an increase of people with mental illness and disabilities living in American communities.

Though the movement towards deinstitutionalization in the 1960s (discussed in Chapter 1) had signaled the end of routine confinement of people with mental disorders, there was still a lot of work to do. People with disabilities had limited opportunities to achieve financial independence or pay for essentials like medical expenses. Discrimination, the categorical exclusion based on a person’s status, was perfectly legal when based on disability. People with disabilities had no right to public education and were often excluded from jobs, housing, and services like restaurants or stores. As a practical matter, it was hard to leave the house for a person with a physical component to their disability, who could not get in the door of businesses, use public transportation, or find accessible toilets. Insurance typically declined to cover mental health needs, and providers of housing tended to turn away disabled people as inconvenient.

However, over the next several decades, more progressive thinking about people with disabilities, coupled with a growing body of legislation and court decisions, began to change the outlook for people with mental disorders. As part of the disability rights movement in the 1970s and beyond, advocates fought to end discriminaion, and to achieve access and inclusion, for people with all sorts of disabilities, including mental disorders. Advocacy was not enough, though. Laws were needed – and they were eventually passed – to provide a legal basis for people with disabilities to fight discrimination and demand access to education, workplaces, recreational settings, transportation, and more.

The timeline here provides an overview of these legal highlights:

As this timeline shows, some of the most important laws, especially the earlier ones, attempted to provide financial support to people with disabilities. These laws (Social Security, the CMHA, and Medicaid) were first steps in allowing a degree of independence and community opportunity for people with a variety of disabilities. Though it was an enormous and celebrated step to prohibit discrimination against people based on race and sex, the Civil Rights Act of 1964 did not address discrimination based on disability. Discrimination against people who experienced mental disorders and other disabilities – which prevented them from engaging in their communities – remained legal and unchecked for many more years.

Section 504 of the Rehabilitation Act, known as “Section 504,” was the very first law that recognized the civil rights of people with disabilities. Section 504 prohibited discrimination against disabled people by the federal government and by state entities receiving federal funding (U.S. Department of Health and Human Services, 2006). Though the law was passed by Congress in 1973, three Presidents (Nixon, Ford, and Carter) resisted signing the regulations needed to put the law into action. A month-long “sit-in” at a federal office building in San Francisco was held to protest the delay. The protest was led by Judith Heumann (figure 3.1), an activist who in childhood had been denied entry to kindergarten, and much later, entry to the teaching profession, because she used a wheelchair that was considered a fire hazard. More information about Judith Heuman is provided in Chapter 1 of this text. In the face of this protest and other pressure by the disabled community and their allies, Section 504 regulations were finally implemented, and the law went into effect in 1977.

Figure 3.1.  Activist Judith Heumann, alongside prominent disability rights attorney Barbara Ransom, is pictured here in 2019.

Supporting the Section 504 demonstrations, including the federal building sit-in, were a group of experienced civil rights activists who had long been advocating for rights of Black Americans, the Black Panthers. This group had formed to empower Black people, especially in protest against police brutality, and they now lent their voices, skills and power to the disability rights movement. Longtime Black Panther party leader Bradley Lomax (figure 3.2) had developed multiple sclerosis, which gave him a personal view into the myriad challenges of being a disabled Black man in America.

Figure 3.2. Bradley Lomax, center, a member of the Black Panther party and a disability rights activist, is pictured next to activist Judith Heumann at a rally in 1977 at Lafayette Square in Washington.

Lomax’s personal experience drew him to the disability rights movement. When he joined the Section 504 protests, along with a few other disabled Black activists, he inspired the involvement of other Black Panthers as well, who showed up to feed and supply the disabled protesters stuck in the federal building for their nearly month-long protest. The Panthers were a critical source of support for the Section 504 sit-in; it seems likely that the disability protest would have failed without the involvement of Lomax and the Black Panthers (Connelly, 2020; Thompson, 2017).

Once enacted, Section 504 applied only to select federally funded entities, but its reach was important. As noted, it first established the civil rights of people with disabilities, prohibiting discrimination and exclusion based on disability – including in federally-funded employment and access to federal programs. Section 504 began to be used – and is still often used – to secure access to public school for children with a range of disabilities, including mental disorders. It allows children, via a “504 plan” to get basic accommodations to overcome barriers. For example, a typical 504 plan might provide for breaks in the school day to help a child manage an anxiety disorder so that they can participate in school. Section 504 is often viewed as the law that allows children with disabilities to get in the door – and stay – at school.

The Education for All Handicapped Children Act (1975), later renamed the Individuals with Disabilities Education Act (IDEA), was passed in its original form just a few years after Section 504. The IDEA established “special education” services for children who experience disabilities that impact their ability to learn and function in school, often mental disorders. While 504 might allow a child to be at school, the IDEA actually requires that they be provided with an education.

The IDEA requires that the government provide a “free and appropriate” public education to all disabled children – just as it provides to nondisabled children – and the plans for that education must be outlined in a document called an individualized educational plan, or IEP . The IDEA disfavors segregation of children due to disability, preferring education of all children together where possible (figure 3.3). Families still must advocate for appropriate and inclusive education in light of their child’s disability, but, prior to the passage of Section 504 and the IDEA, children with disabilities quite simply had no right to public education at all.

Figure 3.3 shows a child receiving individual support from an adult in a classroom.

Other laws displayed in the timeline – the inclusion of disabled people specifically in the Fair Housing Act 1988, as well as the Mental Health Parity Act and the Air Carrier Access Act, both passed in 1996 – are remarkable for staking out basic opportunities for people with disabilities (housing, air travel, and health insurance) in very recent history. Likewise, the Americans with Disabilities Act (the ADA), which is discussed in detail in the next section, was passed in 1990. The year 2008 in the United States is better known for the election of Barack Obama as president, but it was also the year that the ADA was amended to ensure protection for people with most mental disorders (such as mental illness or intellectual disability) or brain-related disorders (such as epilepsy).

You may wonder, how does access to education, employment, and other activities relate to our topic of people with mental disorders in the criminal justice system? People who find themselves being processed in the criminal justice system were not always there, and most will not always be there. The same people found in the criminal justice system are (or were) also involved in the educational system; they may have been employed (or wish to be); they ride buses and trains; and they live in neighborhoods. These community experiences are intertwined with their eventual involvement in criminal justice. How people are treated and supported in their communities impacts whether or not they will find themselves engaged in the criminal justice system. You can imagine many examples of this connection but, as one example, we know that lack of school success due to unmet educational needs is an enormous risk factor for juvenile or criminal system involvement, and this effect is even more pronounced for children with less social privilege, such as students of color or students in the foster care system (Leone et al., 2003).

Likewise, those who work in the criminal justice system – whether they are law enforcement officers, lawyers, corrections staff, or any other role – are all part of our larger society. Their view of people with disabilities, including mental disorders, is shaped at home and at school, and refined as they continue into adulthood. If, for example, a young student is led to believe that people with mental disorders do not belong or are not welcome in typical classrooms at school, how might that same person, now a law enforcement officer, treat a vulnerable person with a mental disorder that they encounter in the course of their work? Will that officer understand that the person with a mental disorder is deserving of respect and entitled to inclusion in their community, and that they need accommodations to do so? Alternatively, if a victim advocate has ridden the bus to work every day alongside a neighbor who experiences an intellectual disability and goes to their job, might that advocate be more able to appreciate the needs of a similarly situated person who appears in their office, needing help? Though the specific focus in this textbook is the criminal justice system, that system has to be considered in the context of our larger society, of which it is both a part and a product.