In February 2022, New York City Mayor Eric Adams unveiled a new plan to get unhoused people off the streets, out of the subway system, and into hospital beds.
The plan is multipronged and involves “grow[ing] the number of acute psychiatric beds” at hospitals,
criminalizing conduct like sleeping in subway cars,
and increasing police presence in subway stations.
This plan expands surveillance of unhoused people with disabilities in New York City by increasing police oversight in public spaces
and permitting information sharing between city agencies to facilitate hospitalization and treatment of people who are deemed unable to meet their “basic needs.”
It could result in the involuntary institutionalization of many people who do not pose a danger to the community.
In proffering this plan, Adams’s rhetoric is a curious mix of punitive and therapeutic. The program will, he argues, discharge a duty of care toward vulnerable people with disabilities.
But targeted New Yorkers will not have a choice about whether to accept the government’s intervention. Rather, Adams ominously informed unhoused New Yorkers: “No more just doing whatever you want. No, those days are over.”
Mayor Adams is not alone in his impulse to watch and control. Actors at all levels of government are increasingly pursuing policies that use surveillance mechanisms to manage people with disabilities. Over the past decade, state and federal laws have started to permit, and occasionally mandate, the increased surveillance of people with disabilities. These surveillance practices are a continuation of a historical trend of the oversurveillance of people with disabilities. Branded as criminals
and scrutinized with suspicion because of their dependence on public aid,
those labeled as disabled were subject to surveillance, removed from public spaces,
and funneled into penitentiaries, prisons, residential schools, and workhouses to be managed, worked, and treated.
Once within these institutionalized spaces, surveillance was critical to the mission of correcting or rehabilitating “abnormal” behavior.
Those who were excluded from the workhouse, including enslaved and colonized people, were wrapped up in other punitive systems of “unrestrained violence” that also used totalizing surveillance to control and manage.
Policies that promoted the isolation and segregation of people with disabilities remained in place until well into the twentieth century.
In the mid-twentieth century, social policy shifted from isolating people with disabilities in large institutions to closing those institutions and integrating people with disabilities into the community.
Integration was first codified in section 504 of the Rehabilitation Act of 1973 (Section 504)
and then in the Americans With Disabilities Act of 1990 (ADA).
These statutes mandated that states and entities receiving federal funding provide people with disabilities services within the “most integrated setting” appropriate for the individual’s needs.
The move toward community integration was given an additional boost when the Supreme Court decided Olmstead v. L.C. ex rel. Zimring, a landmark case interpreting the ADA’s integration mandate.
The Court held unequivocally that people with disabilities have a right to live within their communities and receive services in the most integrated setting possible.
Integration entailed a seismic shift in thinking about the position, both geographical and social, occupied by people with disabilities in society.
If surveillance was an important characteristic of the institutions that warehoused people with disabilities to control and cure them,
integration called for protecting the privacy, autonomy, and freedom of people with disabilities so that they could live a “normal” life within the community.
This Essay’s contribution is twofold. It first tracks the historical development of surveillance mechanisms over time, highlighting the carceral logic underpinning those practices. It then uncovers the tension between the integration mandate and modern surveillance policies that have the potential to isolate and segregate. Specifically, this Essay analyzes three modern examples of surveillance. First, it considers state laws that permit the installation of sophisticated surveillance technology in group homes for people with disabilities.
Second, it considers surveillance mechanisms adopted by states under federal laws such as the 21st Century Cures Act, a federal law requiring all states to implement Electronic Visit Verification (EVV) systems to screen for Medicaid fraud.
Finally, it considers state laws and regulations that mandate surveillance of students with disabilities through threat-assessment processes as part of a proactive school-shooting-prevention strategy.
A careful look at these modern surveillance policies and the reasons underpinning them demonstrates how the use of surveillance continues to promote and reproduce the same carceral logic that once drove the historical warehousing of people with disabilities. Surveillance can be deployed in service of carceral ableism—“the praxis and belief that people with disabilities need special or extra protections, in ways that often expand and legitimate their further marginalization and incarceration.”
Legislation that permits, and in some circumstances requires, the installation of cameras in the homes of people with disabilities is an example of an ostensibly protective measure that undermines and dehumanizes people with disabilities. Surveillance can also be deployed as a means of identifying and punishing the disability con—“the cultural anxiety that individuals fake disabilities to take advantage of rights, accommodations, or benefits.”
EVV systems are the outgrowth of a carceral logic that is suspicious of recipients of public benefits; the systems monitor and punish people with disabilities and their home health aides out of suspicion that they are committing fraud. Finally, surveillance may be driven by carceral humanism—a term coined by activist and scholar James Kilgore to describe a discourse that repackages punishment as part of service provision and entrenches the role of law enforcement, sheriffs, and corrections officers as caring service providers.
Threat-assessment processes are an example of a surveillance structure that feeds a culture of punishment involving “heavy monitoring of a person’s behavior”
coupled with a threat of exclusion and incarceration for exhibiting behavior deemed risky or problematic.
The integration mandate provides a framework to expose and challenge the carceral logic at play within these systems. Olmstead jurisprudence increasingly reflects the recognition that the integration mandate is not merely about the location of services but about the right to self-determination, choice, and the ability to freely interact with other members of the community.
But surveillance can isolate and segregate, undermining this goal of integration.
Overprotective surveillance policies in group homes adversely impact people’s ability to enjoy privacy and autonomy in their homes.
Surveillance used to police and prevent Medicaid fraud prevents recipients from freely accessing the community for fear of triggering a fraud alert and losing essential services.
Finally, surveillance policies that target people with disabilities based on ableist notions of dangerousness can result in their exclusion from school settings and their incarceration in prisons or hospitals.
To avoid these outcomes, one must ask critical questions about whether surveillance systems will actually solve the problems that drive their use, how surveillance may be experienced by people subject to it, and whether the motivations behind these policies are rooted in prejudice. Failing to ask these questions before deploying these systems in community-based settings can result in superficial, rather than meaningful, integration within the community.
Conversely, asking these questions will allow policymakers to think more critically about surveillance systems and how they fray community bonds, feed negative stereotypes, and segregate and isolate people with disabilities.
To that end, this Essay proceeds in five parts. Part I outlines how surveillance is intertwined with the history of incarceration of people with disabilities. Part II outlines the ADA’s clear remedial mission and the integration mandate’s potential to disrupt carceral systems. Part III unpacks the arguments frequently made to justify surveillance of people with disabilities and uncovers the ableism underpinning those surveillance systems. Section III.A demonstrates how group home surveillance creates settings within the community that look like the institutions of the past, within which residents were deprived of privacy, self-determination, and autonomy. Similarly, section III.B uncovers how surveillance that looks like an innocuous bureaucratic tool for recording how services are provided in the community legitimizes old and unwarranted fears about the disability con while degrading the quality of those services and risking the reinstitutionalization of people currently receiving them. Section III.C describes how surveillance of students with disabilities to prevent dangerous behavior in schools makes it easier to remove them from integrated settings and place them in psychiatric hospitals or in jail. Part IV applies the integration mandate to these systems to demonstrate how the mandate can be used to disrupt and dismantle these surveillance systems, functioning as a tool of resistance. This Essay concludes with questions that must be asked before society turns to surveillance as a response to disability.