From punishment to protection: Containing and controlling the lives of people with disabilities in human rights

Abstract

In the last decade, criminology has begun to raise concerns about people with disabilities’ problematic relationship with criminal justice systems. Yet we have ignored their problematic relationship with civil justice systems; a relationship which has seen people with disabilities subject to a range of punitive civil controls in the wake of their deinstitutionalisation. This article draws attention to one such punitive civil control, the Supervised Treatment Order regime in the Australian state of Victoria. Drawing on Foucault and his interlocutors’ work on ‘governmentality’, and engaging with Cohen’s concept of ‘magical legalisms’, the article reveals how this civil regime has become an effective mechanism for governing the lives of sex offenders with disabilities post their release from criminal justice systems. The article illuminates how this unusual function of the regime has not only been obscured from criminology’s view through claims of legislative intent, but further reconstituted as protective of people with disabilities’ human rights. The article concludes by discussing the implications of criminology’s absence from engaging with such punitive civil orders for people with disabilities and the wider penal field.

Making the abject: problem-solving courts, addiction, mental illness and impairment

“…Mental illness in general, and schizophrenia in particular, often appear within our cultural imaginary as catalysts for uncontrolled violent behaviour (Glover-Thomas 2011). Similarly, it is often suggested in court hearings that people with cognitive impairments are standing before the court because their impairment is simply, 'unruly' (Spivakovsky 2014(Spivakovsky , 2015. Yet there is a slightly different representation of the 'problem' under construction here.…”

Troubling Law’s Indefinite Detention: Disability, the Carceral Body and Institutional Injustice

“…Thus, according to Kafer, where 'disability is conceptualized as a terrible unending tragedy … [a] better future … is one that excludes disability and disabled bodies' (2). As such, therapeutic interventions become understood and accepted within a 'curative imaginary': 'an understanding of disability that not only expects and assumes intervention but also cannot imagine or comprehend anything other than intervention' (27, Spivakovsky 2014a;2014b;Steele 2017;Voronka 2013;Wadiwel 2017). In a contribution to this scholarship, recently, I argued that the possibility (and indeed the legality) of the multiple forms of disability-specific coercive intervention in relation to disabled people is not attached to a particular material architectural space or a particular court order, but instead attaches to these individuals' bodies via medico-legal designations as disabled and travels with these individuals through time and space such that it is the disabled body that is the site of carcerality and hence the disabled body makes material architectural spaces carceral (Steele, 2017a; see also in relation to restrictive practices Steele 2018 forthcoming).…”

“…In so doing, disability carceral scholars displace the prison as the exclusive or primary site of disabled carceral practices and unsettle the therapeutic logic that negates the carcerality of disability-specific spaces of confinement (see, e.g. Adams and Erevelles, 2017; Ben-Moshe, 2017; Ben-Moshe et al, 2014; Dowse, 2017; Joseph, 2015; McCausland and Baldry, 2017; Spivakovsky and Seear, 2017; Spivakovsky, 2014a, 2014b, 2017; Steele, 2017a; Voronka, 2013; Wadiwel, 2017). In a contribution to this scholarship, recently, I argued that the possibility (and indeed the legality) of the multiple forms of disability-specific coercive intervention in relation to disabled people is not attached to a particular material architectural space or a particular court order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space.…”

Disabling forensic mental health detention: The carcerality of the disabled body

“…These scholars caution that seemingly “humane” and “therapeutic” alternatives to incarceration might affirm medicalized understandings of disability and further entrench people designated as disabled in new, less visible carceral spaces (see, e.g. Ben-Moshe, 2011; Ben-Moshe et al., 2014; Dowse forthcoming; Dowse et al., 2009; Joseph, 2015; Reiter and Blair, 2015; Seear and Spivakovsky, forthcoming; Spivakovsky 2014a, 2014b; Steele, forthcoming; Steele et al., 2016; Voronka, 2013).…”

“…Committee on the Rights of Persons with Disabilities, 2013: 4[29]; see also Committee on the Rights of Persons with Disabilities, 2015: 6[21]). The status of forensic detention as “punishment”, notably in its “reformed” community manifestations has not been the subject of sustained engagement by punishment and society scholars (see, however, Spivakovsky, 2014a, 2014b). Yet, by turning to “disable” forensic detention, punishment and society scholarship can make a significant contribution to this issue.…”