Disability, Criminal Justice and Law

Reconsidering Court Diversion

Linda Steele

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351240314
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

Chapter 1

Introducing court diversion

1.1 What is court diversion?

Disability, Criminal Justice and Law provides a sociolegal analysis of court diversion, with particular attention to the jurisdictional and legislative dynamics of court diversion schemes and the legal dynamics of judicial decision-making and enforcement of specific orders made under a scheme. In this chapter I depart from the existing court diversion literature, which focuses on the operational interface of the court system and mental health and disability systems, to home in on the legal dynamics of court diversion—notably, the legal criteria, forum and process through which court diversion takes place and the benefits and drawbacks of these dynamics.

I begin in Section 1.2 by introducing the problem of overrepresentation that court diversion is conventionally seen as addressing. Section 1.3 focuses on court diversion, which I define as a judicial order in lieu of sentence/conviction with treatment and support. It offers a legal taxonomy of court diversion that identifies two legal frameworks within which this diversion typically occurs, differing in process and forum. One framework is the statutory powers of involuntary mental health treatment and intellectual disability care available at all criminal court locations. The other is a new and separate mental health ‘court’ system, encompassing both standalone courts and separate ‘lists’ within (some) mainstream criminal courts.

I then turn to some of the arguments for and against court diversion. Section 1.4 discusses key points raised by scholars in support of court diversion—notably, that court diversion reduces recidivism by facilitating access to disability and mental health services that can address the underlying reasons for offending—while Section 1.5 discusses some of the concerns over the limits or negative impacts of court diversion, including its coercive and ‘net widening’ aspects, its failure to address structural issues and its procedural limitations vis-à-vis criminal law.

1.2 Overrepresentation of disabled people in the criminal justice system

It is widely observed that disabled people (those with cognitive impairments and psychosocial disabilities) are overrepresented in prisons across Anglo jurisdictions (see, for example, Fazel, Xenitidis & Powell, 2008; Jones, 2007). Correctional Service Canada (CSC) recently found that 79.2% of federally sentenced women met criteria for a current mental disorder (Brown et al., 2018: p. 14). In relation to federally sentenced men, CSC found that ‘[e]ighty-one percent of offenders (n = 899) met the diagnostic criteria for at least one mental disorder in their lifetime, whereas 73% of participants met the criteria for a current disorder (in the last month)’ (Beaudette, Power & Stewart, 2015: p. 15). In the United States, a survey of 18,185 federal and state correctional inmates found that 41% self-reported as disabled, of whom 31% reported having a learning disability (Gonzalez et al., 2016: p. 109), and it has been reported that in California ‘45 per cent of state prison inmates have been treated for severe mental illness within the past year’ (Steinberg, Mills & Romano, 2015: p. 1). In Australia, a survey of 1011 Australian prison entrants found that ‘[a]lmost one-half (49%) … reported ever having been told they have a mental health disorder, including alcohol and drug misuse’ (Australian Institute of Health and Welfare, 2015: p. 37), and a study of 1325 Queensland prisoners who were within six weeks of release found that 9% were identified as having an intellectual disability (Dias et al., 2013: p. 940). A study of 10% of the population of a major UK prison found that 7–10% had an intellectual disability (Hayes et al., 2007: p. 165). A study of 1209 prisoners in Aotearoa/New Zealand across 13 prisons found that ‘[n]early all (91%) prisoners had a lifetime diagnosis of a mental health or substance use disorder and 62% had this diagnosis in the past 12 months’ and that this meant ‘[p]risoners were three times more likely than the general population to have a 12-month diagnosis of any mental disorder (62% compared to 21%)’ (Indig, Gear & Wilhelm, 2016: p. v).

Noting our caveats in the Introduction about applying diagnostic disability categories to Indigenous and First Nations people, research suggests that Indigenous and First Nations disabled people are overrepresented in the criminal justice system. In Australia, ‘Indigenous Australians experience higher rates of mental illness than other Australians and this appears to be mirrored in criminal justice systems’ and ‘Indigenous people with cognitive impairment are over-represented in criminal justice settings across Australia’ (Baldry et al., 2015: p. 16). In Aotearoa/New Zealand, it is suggested that ‘an unacceptable percentage of Maori are within the criminal justice system with a corresponding higher incidence of mental illness’ (Toki, 2010: p. 440). In Canada, the CSC recently found that 95.6% of federally sentenced First Nations women ‘met criteria for a current mental disorder’ (Brown et al., 2018: p. 1). While racialised minorities are overrepresented in prisons across many Anglo jurisdictions (see Lammy, 2017: p. 3), there is scant research on the prevalence of disabled racialised minorities in prison (Bradley, 2009: p. 21). This lack of data might reflect racial discrimination embedded in criminal justice and mental health systems rather than an actual absence of such populations (Prison Reform Trust, 2017: p. 29).

Criminalised disabled people in prison receive inadequate mental health and disability services and inadequate assistance from staff who lack the skills and knowledge about disability to support them (Sharma, 2018). Criminalised disabled people can also experience discrimination and other barriers in accessing legal assistance and participating in the court system (Australian Human Rights Commission, 2014).

According to conventional accounts, the overrepresentation of disabled people in the criminal justice system is attributable to a lack of mental health and disability services caused by the failure of deinstitutionalisation. Beginning in the 1960s and 1970s—dates vary between Anglo jurisdictions—governments adopted a policy of closing large-scale psychiatric hospitals and disability institutions, moving former residents into the community. However, this process was not accompanied by provision of sufficient community-based disability and mental health services, housing and other basic social supports (Ben-Moshe, 2017). Consequently, many former residents could not access the treatment and support they needed and ended up coming to the attention of police and being ‘transinstitutionalised’ into prison (Luther, 2016: pp. 283–284). In subsequent decades, the continued lack of disability and mental health services has resulted in many disabled people ‘cycling’ in and out of courts and prisons for low-level offences. While in prison, individuals might access (generally substandard) treatment. Some have proposed that for criminalised disabled people the prison has replaced the asylum and large-scale disability institution as a key institutional place of treatment and support (Harcourt, 2006; Richardson, 2016: pp. 3–4, 30; Schneider, Crocker & Leclair, 2016: pp. 304–305). Others go so far as to refer to prisons as ‘de facto mental health institutions’ (Redlich, 2008: p. 710), the ‘new asylums’ (Ben-Moshe, 2017) and the ‘dumping ground for the seriously mentally ill who have not received adequate or successful treatment in the mental health system’ (Bozza, 2011: p. 169).

In the North American context, some scholars have argued that an additional factor in the overrepresentation of disabled people in the criminal justice system was the reform of civil commitment laws in the 1970s and 1980s, which occurred alongside deinstitutionalisation. In the view of these scholars, ‘dangerousness’ replaced need for treatment as the basis for involuntary detention and treatment, making it more difficult to detain people in hospital who required treatment but were not considered a risk to the public. These reforms were made because the earlier criteria gave too much discretion and authority to the medical profession with little procedural oversight by the justice system. However, some argue that such reforms set the bar for involuntary treatment too high and left people untreated in the community, resulting in increased use of criminal law, or police powers under mental health laws, to access treatment (Schneider, Bloom & Heerema, 2007: pp. 14–18). What were purportedly improvements in civil liberties for disabled people in North America are viewed in retrospect as having the opposite effect, leaving many detained in prisons and police stations without adequate treatment, rather than in hospitals where they (presumably) were receiving the treatment they needed (Snedker, 2018: pp. 9–10).

Although some have questioned the causal relationship between deinstitutionalisation, criminalisation and criminal justice incarceration (see, for example, Ben-Moshe, 2017), narratives intertwining lack of treatment and support on the one hand with contact with and harm in the criminal justice system on the other have endured. Indeed, this grouping of disability, incarceration and treatment underpins the disability-specific strategies conventionally identified as a key means for preventing incarceration and recidivism of criminalised disabled people. These strategies focus on individualised treatment and services to address disability-related behaviour. Such solutions include enhanced mental health and disability services in prisons, community-based treatment and support alternatives to prison, disability screening at police stations, courts and prisons, police or pre-trial diversion and—the focus of this book—court diversion.

Decades on, in the twenty-first century, the introduction, improvement and expansion of court diversion schemes has become a key strategy for responding to the specific circumstances and needs of disabled people in the criminal justice system. This is evidenced by the attention given to court diversion in law reform and government reports across a number of Anglo jurisdictions.¹ For example, in England and Wales, Lord Bradley’s (2009) ‘review of people with mental health problems or learning disabilities in the criminal justice system’ and Baroness Corston’s (2007) earlier ‘review of women with particular vulnerabilities in the criminal justice system’ both recommended significant roll-out of court diversion and liaison schemes across all magistrates courts. In New South Wales (Australia), the Law Reform Commission has held two major reviews on disabled people in the criminal justice system, both of which recommended the enhancement of court diversion schemes (New South Wales Law Reform Commission, 1996; 2012b). The popularity and significance of court diversion is also evident in its support among disability, prisoner and human rights advocacy organisations.² Court diversion has also been seen as playing a key role in reducing deaths in custody (Prison Reform Trust, n.d.), including self-inflicted deaths of women (Corston, 2007: p. 13; Coles, Roberts & Cavcav, 2018: p. 20) and Aboriginal deaths in custody (Pyne, 2016).

1.3 Court diversion

This book is focused specifically on court diversion, which I define as a legal process whereby a judge is able to make an order that moves a disabled person appearing before them on criminal charges into treatment and support provided by disability and mental health services, in lieu of a sentence and sometimes even a conviction.

1 See, for example, Australian Human Rights Commission, 2014; Corston, 2007; Garda Síochána and Mental Health Commission, 2009; Interdepartmental Group (Republic of Ireland), 2016; Law Commission, 2013; Law Commission, 2014; Mental Health Commission of New South Wales, 2017; New South Wales Law Reform Commission, 2012b; Northern Territory Law Reform Committee, 2016.

2 See, for example, Centre for Addiction and Mental Health, 2013; Edgar and Rickford, 2009; First People’s Disability Justice Consortium, 2016; Intellectual Disability Rights Service Inc, Coalition on Intellectual Disability & Criminal Justice & New South Wales Council for Intellectual Disability, 2008; Irish Penal Reform Trust, 2001; John Howard Society of Ontario, 2015; Parsonage, 2009.

In this part I draw readers’ attention to the legal forms taken by court diversion in different Anglo jurisdictions. While there are some operational and service features which are generally common to court diversion schemes (which I will also set out here), schemes do differ in terms of their finer legal details. I take the time here to set out some of the legal features of court diversion schemes not only for the benefit of readers who are new to court diversion but also to orient all readers towards law in a context where existing literature on court diversion has tended to focus on disability and mental health systems’ administration of court diversion orders. Awareness of the legislative, procedural and jurisdictional dynamics of court diversion is central to the book’s exploration of the political complexities and implications of court diversion for criminalised disabled people, as will become apparent in my analysis of a New South Wales court diversion scheme in Chapters 5, 6 and 7. As a word of caution, the discussion in this part is of a largely descriptive nature—some readers who are more interested in the critical and analytical discussion that occupies the majority of this book might like to skip ahead to Section 1.4.

In the contemporary disability context, diversion is generally associated with moving criminalised disabled people into treatment and support in lieu of or during an individual’s passage along the conventional criminal justice trajectory of charge, trial, conviction and sentence (Bartlett & Sandland, 2014: p. 285; Council of State Governments, 2002: p. 11; Laing, 2000: p. 45). Diversion of criminalised disabled people might be informal (through the exercise by police and prosecutors of their general discretion (Redlich, 2008: p. 710)) or formal (that is, pursuant to specific laws, policies or procedures). Formal diversion occurs at various stages of the criminal justice process: prior to police charge, prior to prosecution, at court but prior to conviction, at court after conviction and prior to sentence and after sentence (Richardson & McSherry, 2010: p. 250). This book’s focus on court diversion encompasses diversion that occurs at court prior to conviction and prior to sentence.

In broad terms, I approach court diversion as the legal process through which criminalised disabled people move between the court and disability and mental health services, rather than seeing it as the end point of treatment and support itself. I adopt this focus because I am interested in the legal dynamics of court diversion and the way in which court diversion is a process through which coercive intervention is authorised as lawful and just—in short, law’s complicity in both enabling and masking carceral control of criminalised disabled people. My legal approach to court diversion has two implications for the analysis that follows in subsequent chapters. One is that I focus on the role of courts and the judiciary in criminalised disabled people’s coercive intervention (rather than focusing on disability and mental health service involvement in the aftermath of judges ordering court diversion). The second implication is that I am interested in the specific legal basis for coercive intervention through court diversion. The decision to divert is a discretionary one based on the appropriateness and availability of treatment and support because of an individual’s disability (sometimes weighed against criminal justice factors such as public safety and seriousness of the offence). I am interested in how the legal basis for diverting an individual is distinct from criminal responsibility as a basis for criminal legal intervention through sentence.

Traditionally court diversion has primarily operated in lower courts or in relation to less serious and non-violent charges (James, 2006: p. 533; Schneider, Crocker & Leclair, 2016: p. 314; Slinger & Roesch, 2010: p. 260). Its fundamental purpose is to reduce future contact with the criminal justice system by facilitating access to disability and mental health services. It is assumed that these services can provide individuals with treatment and support to address the underlying causes of contact with the criminal justice system (Redlich, 2008: pp. 710–711; Stefan & Winick, 2005: p. 507). Court diversion might also link individuals with other services such as substance use, education, housing and welfare support (Redlich, 2008: p. 711).

Generally court diversion schemes share five features:

1. Court diversion schemes apply specifically to people on the basis of disability, defined in diagnostic or more loosely medicalised terms. Schemes differ in relation to the scope of disabled people included. Generally, court diversion schemes at a minimum apply to people with mental illness diagnoses; some might also include people with personality disorders, substance use disorders and cognitive impairments (e.g., intellectual disability).
2. Court diversion schemes facilitate access to disability and mental health services. Schemes differ in relation to the scope of support and treatment available. At a minimum, schemes generally provide referral to mental health treatment. Some schemes only provide access to mental health treatment in hospital for mental illness, others extend to mental health treatment in the community. Court diversion schemes might also provide access to care in secure or community settings for intellectual disability. Some schemes also include substance use treatment and social services such as assistance with housing and employment.
3. In court diversion schemes, disabled people are dealt with by reference to different legal considerations from those regulating conventional criminal legal intervention by reference to criminal responsibility for a specific offence and sentence by reference to that offence. Court diversion schemes are not dependent on individuals being legally unfit or not guilty by reason of mental illness. In court diversion schemes, the legal considerations relate to the appropriateness of treatment and support taking into account such factors as the individuals’ disability and need for treatment, as well as criminal justice factors such as the likely outcome of criminal proceedings, seriousness of the offence and public safety.
4. Court diversion schemes—at least those considered here—involve coercion. Individuals might no longer be required to participate in a trial, be detained in prison, have to pay a fine or be subjected to some other criminal legal intervention. However, court diversion is premised on diversion to rather than diversion from. As such, individuals are not free in the sense of being able to choose to live how they wish and what happens to their bodies. Instead, their freedom from criminal legal intervention is conditional on engaging with disability and mental health services and sometimes also attending court for review of their compliance with court orders or being subjected to supervision by justice or health professionals. Moreover, in some schemes criminal charges can be revived if people fail to comply with their treatment and support requirements (Redlich, 2008: p. 712). In mental health courts (where treatment occurs prior to discharge), discharge is not guaranteed and might not eventuate even if they successfully complete the treatment progr...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Preface
• Introduction: Reconsidering court diversion
• 1. Introducing court diversion
• 2. Problematising court diversion
• 3. Theorising court diversion: Disability
• 4. Theorising court diversion: Carcerality and legality
• 5. The finer details of debilitation through law: Introduction to an Australian diversion scheme
• 6. Jurisdiction, disability and lawful relations
• 7. Choosing carceral control
• 8. Disability, criminal justice and law: Beyond court diversion
• Conclusion
• Bibliography
• Index