The title of this post is the title of this timely new piece by Benjamin Hattem now posted to SSRN. Here is its abstract:
Traumatized people have claimed the benefits of federal disability law with increasing success in recent years. Trauma undermines mental health and cognitive functioning, and disability laws entitle individuals with such impairments to robust accommodations and government support.
But this application of disability law has so far overlooked a key site of trauma: America’s sprawling carceral system. Psychology research has shown that certain experiences that are prevalent during periods of confinement — particularly sexual victimization, nonsexual violence, and long-term isolation — routinely traumatize people who are exposed to them. This Note argues that the prevalence of such traumatic events in carceral spaces may allow many incarcerated and formerly incarcerated people to qualify as individuals with a disability for the purpose of federal disability laws. Put another way, this Note asserts that mass incarceration leads to mass trauma, and it suggests that recognizing this trauma would open new avenues of litigation to address the social and individual harms of imprisonment.
Drawing on recent precedent that articulates the relationship between childhood trauma and disability law, this Note proposes that advocates should start litigating these claims on behalf of juvenile plaintiffs. But ultimately, this Note argues that traumatic experiences during both juvenile and adult incarceration can give rise to disability claims. Millions of people are currently incarcerated in the United States; understanding carceral trauma and its connection to disability law has the potential to affect the conditions of confinement and postrelease outcomes of an extraordinary number of incarcerated and formerly incarcerated people.
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