Assistant Attorney General Kristen Clarke Delivers Remarks at Program to Commemorate 33rd Anniversary of Americans with Disabilities Act

Remarks as Delivered

Good morning. I am Kristen Clarke, Assistant Attorney General of the Civil Rights Division at the U.S. Department of Justice, and I am pleased to be here with all of you to celebrate the anniversary of the Americans with Disabilities Act. I want to acknowledge all of our distinguished guests – Congressman Hoyer, Chair Charlotte Burrows of the EEOC, Justice Department leaders and more. We are pleased to host all of you today.

Thirty-three years ago, Congress sought to safeguard the rights of people with disabilities to “fully participate in all aspects of society” and to assure “equality of opportunity… independent living and economic self-sufficiency.” This landmark law has afforded countless numbers of people with disabilities the opportunity to vote without architectural barriers, to work in an environment that supports their success through reasonable accommodations and to live in their own homes and communities instead of shuttered away in institutional settings. Today, we celebrate on the real progress that has been achieved and reflect on the hard work that remains to be done.

One area that demands greater attention and focus, however, is the interaction between people with disabilities and the criminal justice system. It’s what brings us all here today. Millions of disabled people have undesired and unnecessary interactions with law enforcement in our country.

I’m talking about people like a Black man in Louisville, who in under two years, had more than 25 police encounters and hospitalizations associated with behavioral health issues. He died in a jail, four days after being arrested for trespassing and failure to appear in court on previous charges.

I’m talking about a white man in Minneapolis who was in his own front yard, shirtless, shoeless, in pajama pants and experiencing a behavioral health episode when police were called. Police showed up, fired a taser at him, causing him to drop to the ground in pain.

I’m talking about Jamycheal Mitchell, a young Black man with psychosis that caused him to believe that his father owned a store where he stole $5-worth of snacks. He was arrested and placed in solitary confinement for 100 days while awaiting an evaluation on his competency to stand trial. He starved to death.

I’m talking about Neli Latson, a young Black man with severe autism and intellectual disabilities, whose journey to a public library while wearing a hoodie was diverted to solitary confinement in a Virginia prison when he injured a police officer who stopped and restrained him following a suspicious person report.

I’m talking about Abreham Zemedagegehu, a deaf Black man, who was arrested on charges of stealing an iPad – charges that were later dropped. He was jailed for 40 days without access to a sign language interpreter.

People with speech disabilities also face significant risks of harm when law enforcement can’t provide them with effective communication.

For many people with mental health disabilities, substance use disorders and developmental disabilities, we are at a split screen moment in history. Many are thriving in the community and are truly integrated in all aspects of public life – work, school, recreation and transportation – and have no negative interactions with the criminal justice system.

But, unfortunately, many others are entangled in that system, experiencing the very harms Congress tried to cure 33 years ago with passage of the ADA: discrimination, isolation, segregation and relegation to lesser services, lesser programs and, ultimately, lesser opportunities. Racism, poverty, intergenerational trauma also come into play, causing further harms to the daily experiences of people with disabilities.

And I want to be clear, when we talk about the criminalization of people with disabilities in our country, we are talking about a racial justice issue. In the United States, 50% of people killed by law enforcement are disabled. And more than half of disabled African Americans have been arrested by the time they turn 28, double the risk in comparison to their white disabled counterparts. Daniel Prude. Elijah McClain. They should all be alive today.

We know that people with mental health disabilities and substance use disorders make up a substantial share not just of people who experience police interactions but also of those who experience incarceration. The statistics speak for themselves. About a quarter of people in jail and 14% of people in prison have a serious mental illness, compared to about 6% of all adults. Based on the 2021 incarcerated population, that means that over 330,000 people with serious mental illness are behind bars today. Once incarcerated, people with serious mental illness are also 1.7 times more likely to spend extended time in solitary confinement and 7.4 times more likely to die by suicide.

We see these same patterns when you look at those who become involved or entangled with police. While people with serious mental illness make up only about 6% of the population, they are involved in as many as 10% of all police calls, make up 17% of all uses of force and 20% of people injured in police interactions. Even more disturbing, since 2015, about one-fourth of all people killed by police have been people experiencing mental health issues.

People with behavioral health disabilities are often pulled deeper into the criminal justice system through a revolving door of repeated jail admissions, probation violations and continued criminal justice system oversight, with few offramps to community-based services that have been proven to stop the cycle or prevent it from occurring in the first place. These critical and effective services are often in short supply – including mobile crisis teams, which respond quickly to people in crisis and can help to de-escalate situations; supported housing, which provides a housing subsidy and supportive services; assertive community treatment, which provides a comprehensive set of services coordinated by a mobile team; and peer support services, provided by people who through their own lived experience through mental health or substance use disorders provide services to build relationships of trust to people who need support.

People with disabilities in our country have the right to live in their own homes and communities without the threat of arrest or incarceration, segregation or institutionalization. In the last two years, the Civil Rights Division at the Justice Department has launched investigations. We’ve mounted litigations. We have secured consent decrees, filed friend of court briefs and issued guidance with federal partners to address the criminalization of people with disabilities. And we will not stop. We will continue to fight for greater access and greater equity for people with disabilities.

For example, we found that, in Louisville and Minneapolis, police officers are the primary and often sole responders to behavioral health calls, even when safety does not require a law enforcement response. In the 1960s, we developed the Emergency Medical Services, or EMS, a system that recognizes the importance of having a specialized health response, rather than a law response in certain emergencies where someone is experiencing a heart attack, or stroke or other trauma. Just the same, a specialized health response to behavioral health needs is similarly needed in our country. Mobile crisis teams have long been recognized as effective in resolving immediate crisis. We will seek appropriate alternative responses for people with behavioral health issues in Minneapolis and Louisville to remedy this unequal treatment. We also have pending investigations in Oklahoma City and Phoenix, where we are examining the same issues.

But I want to say a brief word about the role of the state because, no doubt, state systems play an important role in providing services that help people with serious mental illness. States are critical to ensure that they can succeed in the community and to help prevent law enforcement encounters altogether. When state mental health systems rely on institutionalization and local law enforcement responses rather than providing crisis and long-term services, they may run afoul of the ADA’s integration mandate. In 2021, we found that Alameda County, California, violated the ADA by failing to provide community-based services, leading to needless hospitalization and incarceration. And our ongoing investigation in Louisville and Oklahoma City are examining whether the states of Oklahoma and Kentucky are providing community-based services to avoid the needless institutionalization and incarceration of people with mental health disabilities.

This work builds on groundbreaking work that we did in Baltimore, where we secured a recent consent decree that calls for the “least police-involved response possible” for behavioral health incidents by moving those calls for service away from police and instead to mobile crisis services where appropriate.

The Civil Rights Division has also been busy filing friend of court briefs in private litigation over the past year to ensure that courts are appropriately interpreting and applying the law in this area. We weighed in on a case where a young Black man in a mental health crisis parked his car in a McDonald’s drive-through in Montgomery County, Maryland, and was shot 23 times by police, killing him; we weighed in on a case against a Florida school district on behalf of kids with disabilities, who were removed from school by the district’s police officers after experiencing behavioral challenges; and a lawsuit brought by parents of a 16-year-old with autism in Louisiana, who died while the defendants were responding to the child’s disability-related acute sensory episode, or “outbursts.” In all three of these suits, the facts alleged scenarios where reasonable modifications, such as de-escalation or an alternative response, may have prevented the tragic outcomes.

And we recently secured a settlement in Dayton, Ohio, where police discriminated against a driver with a mobility disability, when they pulled him from his car even though he didn’t have his wheelchair with him, where reasonable modifications were available that would have allowed him to allow him to safely get out.

Substandard behavioral health care while in jails and prisons, the use of restrictive housing and the denial of equal opportunity for programming may violate the Constitution and the ADA. We are currently enforcing nine settlements regarding behavioral health care in correctional facilities and have an additional five ongoing investigations. All of these settlements call for connections to community services so that people have the critical behavioral health care that they need upon release.

Finally, while not directly related to criminal justice issues that are the focus of our program today, I did want to bring your attention to a key piece of work that we would like to announce on this ADA anniversary. Last Friday, the Justice Department sent to the Federal Register a proposed rule on website accessibility. Long overdue. This important rule would set technical standards for website and mobile app accessibility in the services, programs and activities of our state and local governments. We are excited about this announcement and believe that this proposed rule, if finalized, will have an enormous and transformative impact in making public services and programs equally available to people with disabilities across our country.

Through vigorous enforcement of the ADA, strong partnerships with the disability and criminal justice communities and racial justice advocates and greater awareness of the devastating effect of stigma and low expectations, we can fulfill the promise of the ADA to achieve true inclusion and equality for people with disabilities. Attorney General Merrick Garland could not be here today, but we will now hear recorded remarks from him on this important anniversary.