Thursday, November 12, 2020
Jasmine Harris (UC Davis), COVID-19, Disability, and the Rise of a Modern Deinstitutionalization Movement, 106 Cornell L. Rev. Online (2021, Forthcoming):
This Article argues that the current pandemic has raised the stakes (and, in some respects, has cleared the way) for a modern deinstitutionalization movement. The hotbeds of COVID-19 continue to be congregate “custodial spaces” such as nursing homes, prisons/jails, psychiatric hospitals, group homes, and immigration detention centers. This project makes three unique contributions to the emerging legal literature on COVID-19 and equality law. First and descriptively, I show how the design of congregate facilities makes them ill-suited for effective responses to the current pandemic by interrogating early design choices as illustrative of penal intent and control. By juxtaposing the criminalization and institutionalization of disfavored bodies and minds through multiple bodies of law – criminal law, immigration law, and disability laws – a clearer image of structural subordination emerges that unites the often-siloed movements for racial and disability justice. Second, this Article offers a typology of legal interventions designed to address the growing COVID-19 risks to particularly vulnerable groups of people with pre-existing disabilities and older adults with compromised immune systems. This typology allows for a more critical examination of the ability of existing laws to address the systemic inequities of the current public health crisis. Third, with the previous lessons and framework, I join the normative conversation on reform versus abolition of largescale institutions as service providers with particular attention to the role of race and disability.