Imagine you are reading about a case where an Indigenous Australian man is standing trial for sexual assault charges against a 16-year old girl. If convicted of these charges, the man will likely be sentenced to several years in prison. What do you see as the likely conclusions to this case? Guilty or not guilty? Prison or freedom? But in fact, the answer is neither.

This is the story of Marlon Noble, who was never tried and never convicted of sexual assault but was nevertheless detained for 10 years in a community mental health facility due to his mental impairment before being freed by recommendation of the United Nations Committee after findings of violation of his rights under the UN Convention on the Rights of People with Disabilities (CRPD). In Disability, Criminal Justice, and Law, Linda Steele (2020) systematically rips apart the often-hailed court diversion process in many Anglo-European countries. Court diversion is a legal process "involving coercive intervention that surpasses what is otherwise possible through criminal law" by the use of disability, debility, and capacity to forcibly detain criminalized disabled people (those in the criminal justice system with psychosocial or intellectual disabilities) in community or private mental health facilities for often indefinite periods of time (Steele, p. 46). Steele argues that court diversion is not the saving grace that disability rights activists claim it to be, but rather a process that perpetuates "disability-specific lawful violence" (Steele, p. 4). For Marlon Noble, court diversion created a separate legal process that segregated him from non-disabled peers, detained him without choice of treatment, location, or length, much complicated by the forced relocation, Westernized medicine, and genocide of his people by the very government that ordered this diversion.

In Disability, Criminal Justice and Law, Steele sets out to answer the following questions: 1. How is court diversion accommodated in law and politically tolerated? 2. What is the significance of disability to control and violence through court diversion? 3. To what extent does challenging oppression of disabled people in the criminal justice system require disruption of conventional understandings of disability political identity? 4. How should court diversion be repositioned in our quest to end oppression of disabled people in the criminal justice system, and how can social justice be achieved for this group if not through court diversion? 5. Can human rights provide the tools to challenge oppression of disabled people in the criminal justice system?

Throughout Steele's book, she makes intention to address the interlocking systems of oppression that are not unique to criminalized disabled people, but are important to understand in interrogating court diversion as a legal process through which an individual is treated and violated based on who they are. Steele draws on many foundational theories, such as biopower (Foucault, 2008), "scientific racism" (Foucault, 1997), critical disability studies (Altermark, 2018), queer theory (Puar, 2017), critical race theory, medical industrial complex (Mingus, 2015) and more. While Steele dedicates a section of a chapter to the perceived merits of court diversion, such as addressing overrepresentation in the criminal justice system and providing increased access to disability services, she argues that court diversion is overall an unjust process that must not continue. In actuality, court diversion as a means for carceral control further contributes to the perceived criminality, incarceration, and overrepresentation of people with disabilities in the crimination justice system.

Rather than turning to court diversion, Steele advocates for "transformative strategies directed towards dismantling the institutional archipelago (including prison) and supporting criminalized disabled people's individual and collective self-determination and flourishing, rather than channeling energy into tinkering, expanding, and fine-tuning court diversion schemes" (Steele, p. 198). Steele (2020) argues that any alternatives to court diversion for disabled Indigenous and First Nations peoples must be grounded in collective self-determination, nation-building, and cultural inclusion.

As a solicitor and well-published disability studies researcher, Steele lays out her arguments methodically and systematically. If you are not an avid reader of criminal court cases, law briefs, or despise vocabulary quizzes and lots of in-text citations, then you are going to have a bad time. But if you are like me and deeply enjoy the methodological destruction of oppressive systems through logic and evidence, you will revel in Steele's arguments which are backed by evidence, case studies, and testimony with wide range and applicability, and she is careful to note limitations of her authors and data.

As a fair reviewer, I must admit an underwhelming aspect of Steele's arguments, even though I agree with her main arguments against court diversion itself. She begins the book describing commonalities between criminal justice systems across Anglo-European nations that all adopt court diversion processes. These assumptions about the homogeneity of Anglo-European court systems and the logic behind court diversion is oversimplified for the sake of Steele's argument. For instance, the United Kingdom has adopted the social model of disability, universal health care, and has signed the UNCRPD. In contrast, the United States of America still operates predominantly from the medical or 'diagnostic' approach to disability and has yet to provide universal health care or sign the UNCRPD. These two nations likely interact with two varying ideas of disability as a political identity, and thus the strength of Steele's argument against court diversion as an oppressive, violent system may differ in countries that do not place the same value on disability identity or recognize ableism as an oppressive force. Steele herself admits these limitations and their effect on adopting change in various nations.

It must also be noted for the sake of the reader there are many ableist and violent depictions of treatment of criminalized disabled people by virtue of the discriminatory practices involved in the legal process. As a trigger warning for racialized, poor, Indigenous or First Nations, disabled folks who have been subjected to discrimination, and/or the violence of the criminal justice system, this book provides much evidence of the continued harm and institutional problems with prisons, mental health treatment centers, and community support programs. If you would like to still read the book and bypass these details, you can skip these passages that mention specific injustices and violence against criminalized disabled people: Introduction, 2.2, 3.3, 3.4, 4.2, and 5.3.

All in all, Disability, Criminal Justice and Law is a must-read for any disabled rights activist, attorney, and educator. As a Disability Services professional at a research university in the United States of America deeply entrenched in medicalization and diagnostic record of disability as identification, I am consistently interrogating systems and processes that may further contribute to harm and injustice faced by marginalized disabled people. As we look at these systems, we must ask ourselves whether we contribute to the injustices we seek to eradicate, and whether the interlocking institutions – legal, criminal justice, medical, healthcare, education – are creating or perpetuating processes and procedures like court diversion that seem prima facie inclusive and humane but are actually violently unjust.

In any case, Steele made me reflect ad nauseum about the ways in which institutions and systems perpetuate control and dominance over marginalized disabled people and try to envision a world in which transformative justice is truly a reality. In the absence of criminal justice, incarceration, and policing, will community-based transformative practices truly live up to the expectations of non-violent, consensual, inclusive (as opposed to segregated) practices? And will these practices be able to address structural issues related to interlocking systems of oppression while simultaneously "making things right" and without perpetuating violence or harm? Unfortunately she doesn't thoroughly interrogate these alternatives that she presents in the remaining 30 pages (although Steele contributes 198 pages to demolishing court diversion). Well, I suppose that's another review for another book.

References

  • Altermark, N. (2018). Citizenship, inclusion and intellectual disability. Routledge, London and New York. https://doi.org/10.4324/9781315109947
  • Ben-Moshe, L. (2014). Alternatives to (disability) incarceration. In L Ben-Moshe, C Chapman, & AC Carey (eds), Disability incarcerated: imprisonment and disability in the United States and Canada (pp. 255–272). Palgrave Macmillan, New York. https://doi.org/10.1057/9781137388476_14
  • Foucault, M. (1979). Discipline and punish: the birth of the prison (A Sheridan, Trans.). Penguin, London.
  • Foucault, M. (2008). Lecture 21 November 1973. In J Lagrange (Ed.), Psychiatric power: lectures at the Collège de France 1973–1974 (G Burchell, Trans.) (pp. 39-61). Palgrave Macmillan, Basingstoke & New York.
  • Lamble, S. (2014, November 19.). Transformative justice and community anti-violence initiatives, presentation to roundtable Violence against women and girls: from intervention to prevention. Centre for Crime and Justice Studies.
  • Mingus, M. (2015, February 6). Medical industrial complex visual. Leaving evidence. https://leavingevidence.wordpress.com/2015/02/.
  • Mingus, M. (2019, January 9). Transformative justice: a brief description. Leaving evidence. https://leavingevidence.wordpress.com/2019/01/09/transformative-justice-a-brief-description/.
  • Puar, J. (2017). Right to maim: debility, capacity, disability. Duke UP, Durham & London. https://doi.org/10.1215/9780822372530
  • Steele, L. (2020). Disability, criminal justice, and law. Routledge. https://doi.org/10.4324/9781351240338
  • Wildeman, S. (2016). Agonizing identity in mental health law and policy (part II): a political taxonomy of psychiatric subjectification. Dalhousie Law Journal, (vol. 39, no. 1, pp. 147–193).
Return to Top of Page


Copyright (c) 2021 Brittany Otter

Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

Volume 1 through Volume 20, no. 3 of Disability Studies Quarterly is archived on the Knowledge Bank site; Volume 20, no. 4 through the present can be found on this site under Archives.

Beginning with Volume 36, Issue No. 4 (2016), Disability Studies Quarterly is published under a Creative Commons Attribution-NonCommercial-NoDerivatives license unless otherwise indicated. 

Disability Studies Quarterly is published by The Ohio State University Libraries in partnership with the Society for Disability Studies.

If you encounter problems with the site or have comments to offer, including any access difficulty due to incompatibility with adaptive technology, please contact libkbhelp@lists.osu.edu.

ISSN: 2159-8371 (Online); 1041-5718 (Print)