Legal measures designed to help people with disability in the court system can in fact work against them.
The practice of moving people with disability out of institutions and into the community began more than 35 years ago after the recommendations of several inquiries and a Royal Commission. The changes saw the introduction of a range of specific measures.
One example is the use of court diversion; when a person with disability appears in court on a criminal matter, a judge has the power to make an order moving the defendant out of the court system and into specialised services for treatment and support. This occurs instead of sentencing and sometimes without even a conviction.
It seems a well-intentioned way to keep people with disability out of prison and ensure they get the support they need but UTS Law’s Dr Linda Steele says the practice is not as humane as it appears:
The reality is that the policy and practice can strip people with disabilities of their human rights.
Dr Steele has a strong research background in disability law, human rights and social justice and argues that court diversion can use a person’s disability to effectively circumvent the right to equality before the law.
She also says for many people with disability, diversion means trading the potential violence of the prison system for specialised facilities where the use of restrictive practices is often equally as harmful:
While court diversion is conventionally understood as protecting criminalised disabled people from harm in criminal justice systems, this assumption overlooks the fact that diversion moves people into a system where violence and control is pervasive.
Viewed in this light, the practice simply continues disability oppression and the process of control and punishment of people with disability who are not sentenced and might not even be convicted of any criminal offence.
Dr Steele argues it’s time to re-consider court diversion and formulate new policies and practices:
As court diversion becomes further entrenched and normalised as part of how disabled people in the criminal justice system are to be treated … it is timely to pause and subject court diversion to sustained critical scrutiny of its broader political implications and effects.
Further reading: Disability, Criminal Justice and Law: Reconsidering court diversion by Linda Steele, Routledge 2020