Thirty. Five. Seconds. It took 35 seconds to set into motion events that killed Elijah McClain in 2019. In what started as a quick trip to a local convenience store in Colorado, ended in tragedy. On a crisp August evening an onlooker, when observing the face covering McClain used to regulate his temperature due to a blood circulation disorder, decided that McClain looked “sketchy.” The caller’s decision to weaponize the phrase “looks sketchy” and “put his hands up” in that fateful 911 call criminalized Elijah McClain’s disability.[i] The caller reported, “When I passed by him, he put his hands up”… “I don’t know he looks sketchy”… “He has a full on mask on.” This abhorrent obfuscation of McClain’s behavior allowed the police to demonize him when they arrived on the scene.
Influenced by the observer’s report of “suspicious hand waving,” the police descended upon McClain in an attack that resulted in his murder. The illicit act of “handwaving” was not a new justification for presumptions of “criminal behavior.” In Illinois, John Doe Number 24 (JD) was institutionalized in 1945 for almost half a century for the same accusation. The pathway to violence and institutionalization for Black disabled people has been ongoing since the late 19th century. Though our contemporary landscape has changed, state violence remains eerily reminiscent of the past.
The automatic suspicion of McClain’s presence in public and immediate presumption of criminal conduct has deep historical roots across the country.Similar vernacular was assigned to disabled people in the 1880s as Denver, Colorado, witnessed the eruption of “ugly ordinances”.[ii] Ugly laws” were edicts that strictly prohibited disabled people from public spaces. These laws were routinely enforced, and when defied, punishment was institutionalization. The criminal suspicion earmarked for disabled people made them most vulnerable to police and institutional violence well into the mid 20th century.
In 1945, the Illinois legal system carted JD off the streets in what arresting officers classified as “crazy” for “waving his hands.”[iii] The suffering that JD endured following his arrest revealed the abominable consequences of institutionalization. . His story disturbingly chronicles the various ways his civil and constitutional rights of due process were continually forfeited based on a misdiagnosis of mental retardation. State officials did not initially identify JD as deaf with low vision; instead, they labeled him as defective, propelling him into a lifetime of confinement. This categorization stole more than five decades of his life. JD’s experience was not an isolated case; but rather astoundingly similar to the educational mass incarceration war that rages across the U.S. today.
“You don’t even notice us to realize when we are missing. You hide us away in nursing homes and institutions, for this exact reason, so that when we are killed, you’re already used to us not being around.”[iv]
Imani Barbarin
The earliest manifestations of incarceration developed simultaneously with universal education sweeping the nation. Under the guise of educational reform, practices of early 20th-century education became tools to disappear disabled Black children into state-run institutions. These state-sponsored enterprises prohibited schooling and instead exploited disabled children for labor and subjected them to abuse, medical neglect, and experimentation. The catch-all term “defective” allowed states carte blanche authority to designate disabled Black children for confinement. Early 20th-century practices demonstrate that if you were disabled and Black, you had a better chance of being incarcerated than being sent to a singular state school designed to help educate disabled individuals.
Now, as laws around the country continue to mandate police presence in schools, disabled Black children remain the most vulnerable.[v] School safety officers have replaced state patrol officials, and widespread zero-tolerance policies now adjudicate education disciplinary infractions through the criminal justice system.[vi] The reformation of laws ensures juveniles are charged as adults and sanctions youth placement into local penitentiaries. The incessant monitoring of student behavior at school means that disciplinary punishment has shifted from suspension and expulsion to the consignment of adult prisons. Similar to what transpired under the term “defective,” the vast spectrum of ‘disorderly conduct’ is used to maintain the school-to-prison pipeline.
The 2019 U.S. Commission on Civil Rights found that:
73 percent of youth with emotional disabilities who drop out of school are arrested within five years of leaving school. Based on federal data, in 2011–12, researchers found that black students with disabilities constituted 19 percent of all students with disabilities, but were over-represented as 50 percent of students with disabilities in correctional facilities.[vii]
In the 1940s, the simple act of waving your hands in public resulted in decades of forced institutionalization; today, it can mean death. JD was condemned to a lifetime of confinement, but McClain was executed. In our social hierarchy, we situate disabled people as less than. The result is their exclusion, confinement, and sometimes death with little to no punishment. The intertwined oppressions of disability and Blackness raises new questions about early circumstances of incarceration and police brutality, which activists have fought since the 1960s.[viii] Yet, whether we are policing disabled people in the street or funneling them out of the classroom into carceral spaces, one thing is clear – No public space is safe for Black disabled people – then or now.
[i] “Independent Review of Elijah McClain Case.” City of Aurora Colorado. https://www.auroragov.org/residents/public_safety/commitment_to_progress/the_elijah_mc_clain_case. After a violent encounter with the Aurora Police Department, Elijah McClain died in the hospital 6 days later. During police detainment, McClain was placed in a choke hold and paramedics injected him with Ketamine. An autopsy confirmed McClain died from Ketamine complications.
[ii] Schweik, Susan M. The Ugly Laws: Disability in Public. New York: New York University Press, 2009, p 64-65.
[iii] Bakke, David. God Knows His Name: The True Story of John Doe No.24, Illinois: Southern Illinois University, 2000, xvii.
[iv] Barbarin, Imani, “I Was Unprepared for 2020,” Crutches and Spice (Dec 31, 2020).
[v] Our Kids Are Going to Feel Safer in Their Schools’: Gov. Polis Signs 2 School Safety Bills into Law,” 2023. April 28. https://www.denver7.com/news/local-news/gov-polis-signs-2-school-safety-bills-into-law.
[vi] “Colorado School Safety: A Legal Manual Revised Edition October 2022”n.d. https://coag.gov/app/uploads/2023/03/2022-AGs-Colorado-School-Safety-A-Legal-Manual.pdf.
[vii] U.S. Commission on Civil Rights, Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities, Washington D.C. of: U.S. Commission on Civil Rights, 2019, 37.
[viii] Dennis Billups and Brad Lomax, featured in the Black Panther Newspaper above played key roles in the 1960s disability rights movement. They, along with Joyce Ardell are most known for protests which led to civil rights legislation that prohibited federally funded agencies from discrimination against disabled. Lomax’s dual position within BPP, however, also highlighted the intertwined nature of disability and the criminal justice system. Other 1960s and 1970s activists have followed Billups, Lomax, and Ardell, including Pat Parker (also a BPP member) and Johnnie Lacy.
