OPTIONAL: Predisposed: Race, Disability, and Death Investigations

Abstract: 

Disability, preexisting conditions, or underlying conditions might seem like uncontroversial factors to cite when determining an individual’s cause of death. However, many death investigators have also cited these conditions in deaths caused by state violence or neglect. For example, a 2021 study found that medical examiners cited sickle cell trait, a gene mutation, as a cause or significant factor in the deaths of 47 Black people who died in police custody in the past 25 years. Sickle cell trait is a relatively common and benign trait disproportionately found in Black people in the United States. It is also distinct from the potentially fatal sickle cell anemia, or disease.

Death investigators’ use of disability—including perceived disability—as an explanation for Black death at the hands of the state illustrates the relationship between racism and ableism and facilitates the maintenance of both. It perpetuates the myth of genetic difference and “inferiority” based on race. It suggests that disability is a justifiable defense to homicide, which enables the development of state-created “disabilities,” such as excited delirium—a pseudo- condition supposedly based on physical traits and behaviors unique to Black people—as exculpatory mechanisms to justify social control. It also potentially establishes the slippery slope that Black disabled people—including those who might not identify as disabled—cannot legally be “killed” by external forces.

Yet, responses to the death investigation study, like other critiques of police killings of Black people, largely focused on the impact of the discovery for racial justice in the form of police accountability. For example, journalists and scholars decried the pattern of citing sickle cell trait as a troublesome ploy that has enabled police to evade prosecution or liability. In addition to police violence, however, death investigators’ attribution of the deaths of the disproportionately Black victims of natural disasters like Hurricane Katrina to heart disease ascribes a narrative of disability as internal “flaw” to otherwise external deaths.

Much of the scholarship concerning death investigation reform focuses on the purported greater reliability of medical examiner systems compared to coroner systems, developing standard qualification requirements for death investigators, or establishing death investigators’ independence from the political pressures they face. This Article, however, expounds on the racial justice consequences of death investigation by analyzing death investigators’ use of disability as a justification for the deaths of Black people who die as a result of state violence or neglect. Using examples of Black people who died from police violence and natural disasters whose causes of death were characterized as resulting from preexisting conditions, this Article employs news reports, autopsy reports, and litigation filings over five decades—from the 1980s to the 2020s—to review the history of the death investigation system and procedures and explore the extent to which disability can be and has been attributed to a person’s cause of death as well as the racial justice implications of those attributions. I call for a broadening of the death investigation reform process to include parameters concerning the use of disability to ensure it is not used as pretext for racial discrimination. Such reforms might include formal collaboration between medical and legal professionals to develop policy recommendations to assess and address the social impact of acknowledged differences between medical and legal determinations of causation.