Disability, Criminal Justice and Law Reconsidering Court Diversion
Through theoretical and empirical examination of legal frameworks for court diversion, this book interrogates law’s complicity in the debilitation of disabled people.
In a post-deinstitutionalisation era, diverting disabled people from criminal justice systems and into mental health and disability services is considered therapeutic, humane and socially just. Yet, by drawing on Foucauldian theory of biopolitics, critical legal and political theory and critical disability theory, Steele argues that court diversion continues disability oppression. It can facilitate criminalisation, control and punishment of disabled people who are not sentenced and might not even be convicted of any criminal offences. On a broader level, court diversion contributes to the longstanding phenomenon of disability-specific coercive intervention, legitimates prison incarceration and shores up the boundaries of foundational legal concepts at the core of jurisdiction, legal personhood and sovereignty. Steele shows that the United Nations Convention on the Rights of Persons with Disabilities cannot respond to the complexities of court diversion, suggesting the CRPD is of limited use in contesting carceral control and legal and settler colonial violence. The book not only offers new ways to understand relationships between disability, criminal justice and law; it also proposes theoretical and practical strategies that contribute to the development of a wider re-imagining of a more progressive and just socio-legal order.
The book will be of interest to scholars and students of disability law, criminal law, medical law, socio-legal studies, disability studies, social work and criminology. It will also be of interest to disability, prisoner and social justice activists.
Introduction: Reconsidering court diversion
Chapter One: Introducing Court Diversion
Chapter Two: Problematising Court Diversion
Chapter Three: Theorising Court Diversion: Disability
Chapter Four: Theorising Court Diversion: Carcerality and Legality
Chapter Five: The Finer Details of Debilitation Through Law: Introduction to an Australian Diversion Scheme
Chapter Six: Jurisdiction, Disability and Lawful Relations
Chapter Seven: Choosing Carceral Control
Chapter Eight: Disability, Criminal Justice and Law: Beyond Court Diversion
"Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion is a must read for activist-scholars and anyone concerned with disability, criminalization, and interlocking oppression. Using Puar’s theoretical work on debility/capacity alongside Foucault, disability carceral scholarship, trans and queer abolitionism, settler colonial studies, and beyond, Steele stages a skilful conversation between these varied provocations, which guides her critique of policy and practice surrounding actual experiences of court diversion and the implications for struggles for social justice. Steele shows how a seemingly humanitarian measure is complexly implicated in the disproportionate criminalization and oppression of disabled, Indigenous, racialized, and poor peoples."
Chris Chapman, Associate Professor of Social Work at York University Canada; editor of Disability Incarcerated: Imprisonment and Disability in the United States and Canada and author of A Violent History of Benevolence: Interlocking Oppression in the Moral Economies of Social Working (2019)
"Disability, Criminal Justice and the Law is a tour de force. Providing a much needed critical account of court diversion, Steele analyses the coercive and ‘net widening’ effects of a process that is often unthinkingly regarded as beneficial. Based on novel empirical research, and employing interdisciplinary research methods, Steele documents the violence and injustice entailed in reliance on diversion, drawing connections between law, disability and settler colonialism, and exposing the ways in which law debilitates criminalised disabled people through diversion. This book deserves to be read widely – not just by criminal justice and critical disability studies students and scholars, but also by legal professionals and justice advocates working in the field of law and disability. Steele’s powerful assessment demands an urgent rethinking of the value and effects of court diversion. "
Arlie Loughnan, Professor of Law at University of Sydney; author of Manifest Madness: Mental Capacity in the Criminal Law (2012) and Self, Others and the State: Relations of Criminal Responsibility (2020)
"Linda Steele's book offers a much needed disruption to the common assumption that people with disability are over-represented in criminal justice systems due to a lack of treatment and support in the community post their deinstitutionalisation. Steele's book not only shows us how law plays a particularly pernicious role in debilitating criminalised disabled people, but also how this role of law can expand and mask settler colonial control and violence of Indigenous and First Nations people and other racialised minorities. Grounded in a careful analysis of court diversion, this book further invites us to explore the bifurcation of the political category of disability, showing us the edges of the chasm that is forming between rights-bearing disabled citizens and their debilitated, corrosively-disadvantaged counterparts. Disability, Criminal Justice and Law is a must read for anyone who wants to understand the multiple, complex and often contradictory relationships between people with disability and law."
Claire Spivakovsky, Senior Lecturer in Criminology at University of Melbourne; author of Racialized Correctional Governance (2013) and editor of Critical Perspectives on Coercive Interventions: Law, Medicine and Society (2018)
"Linda Steele’s Disability, Criminal Justice, and Law does exactly what its understated subtitle says it does; namely, reconsider court diversion schemes for criminalised disabled people. But in methodically and forensically (in all senses) reconsidering a particular aspect of the criminal justice system, this wonderful book opens up a series of powerful and systemic questions about disability, identity, criminal responsibility and social justice in contemporary settler colonial societies. Armed with insights from Foucauldian legal theory, critical disability studies and socio-legal studies, and with a keen eye both for the finer points of theory and the lived experiences of disabled people, Steele’s book takes a legal mechanism we thought we knew and casts fresh, and critical, light on it. In so doing, Disability, Criminal Justice, and Law, forces us to reconsider many of our assumptions about law – beyond court diversion itself. "
Ben Golder, Associate Professor of Law at University of New South Wales; author of Foucault and the Politics of Rights (2015) and Foucault’s Law (2009)
"This is an extraordinary book. Linda Steele's meticulously researched and carefully theorized account of court diversion shows how ableism operates in interaction with racist, heteropatriarchal and colonial oppressions to produce therapeutic courts and other so-called diversionary legal regimes -- regimes that, in turn, reproduce structural violence and "lifelong precarity" in the lives of disabled persons. We come away with a better understanding of how court diversion extends and masks coercive interventions in the lives of persons already marked off for subjugation, and how human rights, including the rights protected under the Convention on the Rights of Persons with Disabilities, have been complicit. Ultimately, Disability, Criminal Justice and Law succeeds in disrupting diversion, reanimating critical imaginaries and exposing buried connections among liberation projects across the carceral archipelago. It is essential reading for scholars and advocates working in criminal law, critical disability studies and carceral studies."
Sheila Wildeman, Associate Professor, Schulich School of Law, Founding Fellow, MacEachen Institute for Public Policy and Governance, Dalhousie University