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

Law’s Time and Space in ‘Indefinite Detention’

Law’s designation of individuals as disabled has for centuries enabled the heightened indefinite detention of bodies across Australia (the focus of this article) and other Western jurisdictions. This is by reason of ‘disability-specific’ laws, such as civil mental health laws enabling detention for the purposes of medical treatment and care, guardianship laws enabling detention in locked accommodation, forensic mental health laws enabling detention following a finding of unfitness or not guilty by mental illness and laws permitting restrictive practices typically within institutional spaces such as group homes, aged care facilities, schools and mental health facilities. Recent scholarship has begun to explore the colonial and racial underpinnings of the historical emergence, evolution and contemporary operation of disability-specific laws enabling indefinite detention (see, e.g. Blagg et al., 2017; Joseph, 2015). This recent scholarship can be situated in a broader context of critical disability scholarship which has argued that constructions of disability as ‘abnormality’ or ‘unfitness’ are located in ongoing and ever-evolving settler colonial projects of rule (see, e.g. Erevelles, 2011; Hollinsworth, 2013).

This article explores how contemporary practices of indefinite detention of disabled people relate to settler colonialism, particularly as these practices pertain to Indigenous women who are disabled. In doing so, this article is informed by the scholarship of Australian Indigenous women, which has illuminated the serious issues of violence, criminalization and institutional injustice confronting Indigenous Australian women (see, e.g. Behrendt, 2000, 2005: 249; Porter, 2016; Watson, 2007: 7–8). Indeed, Watson has noted the failure of the Australian state and legal system to acknowledge and remedy colonialism per se (Watson, 2007: 7) and has argued that Australian settler colonial law is itself illegitimate because it is founded on violent imposition through terra nullius (Watson 2014: 52–53), while Moreton-Robinson (2004) has argued that ‘patriarchal white sovereignty’ has infused personhood in law. Writing in the North American context, Dian Million (Tanana Athabascan) has argued that settler colonial legal and political systems respond to Indigenous historical injustice pursuant to a neoliberal and interventionist logic that draws on medicalised notions of trauma. These medicalised notions of trauma in turn individualize harm and further impede self-determination (Million, 2013: 11–12, 40). Million also notes that state legal jurisdiction is increasingly being extended over Indigenous people’s land and lives as a strategy of colonial rule (Million, 2000: 102). A similar point has been made by some Indigenous Australian women scholars, notably in relation to the Northern Territory intervention (Watson, 2007).

These issues of violence, criminalization and institutional injustice confronting Indigenous Australian women have been explored in different ways by non-Indigenous Australian scholars. These settler colonial and critical disability approaches offer an explanatory framework for ongoing dispossession and systemic subordination. For example, Baldry et al. (2015a, 2014) have argued that Indigenous Australian women are subjected to ‘colonial patriarchy’ and that patriarchal colonialism has the ‘power to adapt and endure’ (Baldry and Cunneen, 2014: 285), including recent manifestations in the increasing incarceration of Indigenous Australian women (Cunneen and Rowe, 2015). Canadian scholars such as Chapman (2014a) and Voronka (2013) have tracked the ways in which disability diagnoses and interventions are increasingly being used to manage First Nations populations, rendering carceral interventions medically necessary, beneficial and ‘noncolonial’ (on colonization, mental health and the Global South, see Mills, 2014). Canadian feminist and critical race scholar Razack (2015) has discussed the way in which pathologizing the precarity of First Nations offenders’ contact with the justice system renders inevitable and legitimate their exposure to institutional violence and death. Together, this Indigenous and non-Indigenous scholarship directs critical attention to the interrelationships between violence, criminalization and institutionalization and the ways in which control of Indigenous people’s lives and bodies is facilitated and legitimated not only through race but also through the legal prisms of disability and health.

Some critical legal scholars have argued that appreciating the full scope of institutional injustice requires questioning law’s complicity in harms, not only materially through what law permits to be enacted on bodies but also law’s cultural or representational dominance in the meaning given to these material practices and the material bodies on which they are enacted (Cover, 1986; Veitch, 2007). To this end, one dimension of critical legal scholarship which this article draws upon is attentiveness to legal representations of space and time. Legal authority and action can be understood as not being open ended but rather as ‘defined by limitations that [law] defines for itself’ and that [law’s] representations of its own legal and material boundaries circumvent claims made to its legitimacy (Douglas et al., 2005: 9, emphasis in original). Some critical legal scholars have explored how injustices done to marginalized groups can be illuminated through understanding the marginalized body as a space (Delaney, 2003; Steele, 2017a) or the way in which the marginalized body has a porous relationship with material space which is mediated by law such that bodies ‘take space with them’ (Keenan, 2018). Moreover, some critical legal scholars have argued that law does not act on objective understandings of time, but produces time in ways that align with law’s objectives and affirm law’s legitimacy. Mawani (2014: 71) has noted that ‘juridical concepts, legal discourses, and legal authority are underwritten by and draw their meanings from the production, specification, and arrangement of time’. Yet, Mawani (2014: 69) comments that ‘[a]lthough time is crucial to [law’s] force and legitimacy, and its onto-epistemology – in legal scholarship, law’s time has too often been assumed rather than problematized’. Law can produce time in ways that fragments relations between events, spaces and people and, in doing so, negate injustices (Mawani, 2014: 93). Critical legal scholarship on law, space and time orients us towards questioning the political limits of representations of space and time in conventional legal conceptualizations of indefinite detention.

In analysing indefinite detention specifically in relation to disability, it is important to consider how law represents disabled bodies it (lawfully) detains. Critical disability studies scholarship provides tools for critiquing constructions of disability as individual, biomedical deficit and illuminating disability’s status as a socially constructed abnormality. In turn, this scholarship can make apparent the contingency of law’s representations of disability to broader historical and geopolitical dimensions of power and inequality related to such dynamics as colonialism, neoliberalism and globalization. Drawing on critical disability studies scholarship means that disability is not analytically approached as a discrete, additional category of difference but instead is always coming into existence corelationally with other dimensions of difference such as gender, race and sexuality in ways that reproduce the White male ‘normate’ subject (and in turn nation) (Connell, 2011; Erevelles, 2011; Hollinsworth, 2013; Soldatic, 2015; see also a similar point advanced in the disability justice approach developed by US activists such as Patty Berne, Mia Mingus and Lydia XZ Brown).

Furthermore, analysis of law’s representation of disability as abnormality considers the legal possibilities for control and violence enlivened both in relation to those designated as disabled and the mutually constituted normate legal subject (see, generally, Campbell, 2009; Goodley, 2014). Such consideration includes the colonial and racial dimensions of the legal frameworks and practices of confinement and other non-consensual interventions in relation to bodies designated as disabled which can expose certain racialized subpopulations of disabled people to greater risk of violence and death (see, e.g. Puar, 2017; Wadiwel, 2017). Analysis also extends to considering the carnal dimensions of law’s representational and material approach to disability in two respects. One respect is how lawful techniques for regulating disability work through the body (notably through diagnosis and therapeutic interventions). The other is how discourses of care, humanitarianism and benevolence that mobilize certain affective responses to the disabled body are harnessed to mask the regulative, punitive, violent and indeed even lethal effects of these interventions in relation to disabled bodies.

Some critical disability scholarship has drawn attention to the significance of temporality, in relation to the construction of disability as abnormality, the devaluing of disabled people, and disabled people’s subjection to greater levels of permissible violence (Kafer, 2013; Steele, 2017c; for a historical perspective, see Baynton, 2011). For example, Kafer (2013) has argued that disability is understood as an unwanted form of existence such that disabled people cannot be valued in the present and can only be valued in the future if they are no longer disabled. Thus, according to Kafer, where ‘disability is conceptualized as a terrible unending tragedy…[a] better future…is one that excludes disability and disabled bodies’ (p. 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’ (p. 27, emphasis added). Critical disability scholarship, notably Kafer’s concept of the ‘curative’, encourages us to question the self-evidence of indefinite detention and other coercive interventions, notably when these are justified on the basis of support and therapy and when they are of an ongoing and routine nature. Moreover, the notion of disabled people as ‘fixed’ in time resonates with the temporal construction of Indigenous people as pre-modern and inevitably destined for premature death and annihilation (Razack, 2015; for a historical exploration of the emergence of these intersections, see Baynton, 2011) and directs critical attention to the racialized and settler colonial dimensions of the indefinite detention of Indigenous Australians who are disabled.

Recent critical disability scholarship is drawing out the carceral quality of coercive interventions and control of disabled people (what I refer to as ‘disability carceral scholarship’). For example, in their introduction to a groundbreaking edited collection on disability and incarceration, Chapman et al. (2014: 14) propose that the diversity of sites in which disabled people have been confined over the centuries constitutes an ‘institutional archipelago’. They argue that across individuals’ lives and across macro policy shifts, disabled bodies have been confined within and moved between sites of confinement such that any ‘freedom’ from one site of confinement generally results in entry of these bodies into and confinement in another (Chapman et al., 2014). Disability carceral scholarship troubles accepted understandings of institutionalization and incarceration in order to illuminate the carceral quality of a broader range of sites such as family homes, disability group homes, mental health facilities and special education schools. Many of these sites are particular to disabled people and are typically viewed as therapeutic, benign and even empowering. 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. As such I argued 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, 2017c).

Drawing on these critical legal and critical disability approaches, I propose that the divisions made between indefinite and definite detention and between detention and liberty are referrable to legal representations of time and space. ‘Indefinite detention’ is ‘indefinite’ because a legal order (e.g. court order, administrative order) for a specific instance of detention provides no end date and it is ‘detention’ because it involves confinement in a closed material, architectural space, legally authorized and designated to provide such detention (e.g. a prison, mental health facility, immigration detention facility). What is conventionally understood as indefinite detention is defined with reference to law’s understanding of time – how law sets (or does not set) the period of confinement and with reference to a detention ‘event’ circumscribed by the individual legal order and its related legal process. The principal injustices of what is conventionally understood as indefinite detention are the temporal uncertainty of the singular legally ordered event of detention and being confined in a walled space as compared to being ‘at liberty’ in the ‘community’. My analysis will signal the need to exercise caution both in taking at face value law’s representation of indefinite detention and, in turn, in measuring the ‘justice’ of carceral control against the legal temporal ordering of detention into in/definite detention or more broadly against the legal principles of liberty, non-arbitrariness and procedural fairness. Caution is required because a legally oriented approach could risk erasing other forms of institutional injustice beyond those that are referrable to law’s own temporal and spatial points of reference.

I now turn to explore one disabled individual’s indefinite detention in the context of broader institutional dynamics of detention and coercive intervention as a way to trouble law’s representation of time and space in indefinite detention and illuminate broader institutional injustices done to disabled people who have had contact with the criminal justice system.

Methodology for Troubling Law’s ‘Indefinite Detention’

Methodologically, I take as my focus one embodied individual’s travels across different legal spaces, modes of intervention and periods of carceral control as a way to work outside of the temporal and spatial logic of law’s representation of indefinite detention. I do so through a case study of the institutional life course of one Indigenous Australian woman who is disabled (Wendy ² ), as represented in official administrative records held by various government departments. Wendy’s case study was drawn from the ‘People with Mental Health Disorders and Cognitive Disabilities in the Criminal Justice System in New South Wales’ data set (MHDCD data set), which is a cohort of 2731 men and women who have been in prison in New South Wales, Australia, most of whom have been designated in the data as having cognitive impairment and/or mental illness diagnosis. The MHDCD data set contains linked data on the lifelong human services and criminal justice involvement of each individual and was constructed by merging extant administrative records from criminal justice and human service agencies such as Attorney General’s, Corrective Services, Police, Health and Community Services. Data indicate demographics, criminal justice contacts, social and health factors, and disability service usage. ³

‘Wendy’ is a 46-year-old, Indigenous Australian woman. Wendy is designated by health and justice agencies as having cognitive and psychosocial disabilities. The majority of the data on Wendy were quantitative detailing episodes of service use. However, the data also include police events narrative which is the qualitative written running record of specific instances of contact an individual has had with police over their life – as an alleged offender (‘person of interest’ or ‘POI’), victim and as a ‘mentally ill person’ under civil mental health legislation. Drawing on these data, a case study was constructed of Wendy’s institutional life course. In this article, I trace the official state representations of Wendy’s movements in and out of indefinite detention and between different forms of contact with criminal justice, health and human service agencies.

In drawing on institutional data, the intention is not to displace or negate the scholarship and perspectives of Indigenous Australian women on their lives and experiences, particularly because of the lack of recognition of the perspectives of Indigenous women and privileging of Western epistemologies (see, e.g. Moreton-Robinson, 2011; Porter, 2017; Watson, 2011; in the specific context of Indigenous women who are disabled and who experience violence, see Cripps et al., 2010: 4). Certainly, relying upon institutional data of the administration of law is itself to draw on a set of representations which are laden with their own logics about legitimacy of law (Rajah, 2016). As such, I use institutional data not to indicate a normative truth of the subjective experiences of ‘Wendy’ or of disabled Indigenous Australian women more broadly but instead for the purpose of challenging law’s self-representation of indefinite detention and, in destabilizing this self-representation, open up a space for others to contribute their alternative representations and experiences of carceral control and its injustices.

Wendy’s case study has been selected as the focus of discussion in this article because the high number of contacts with police, incidents of incarceration and involvement with mental health and disability services enable a particularly powerful and nuanced illumination of the complexity and multilayered nature of disabled carceral control. While Wendy’s institutional life course is particular to her, it is significant to note that research by Baldry et al. on the MHDCD data set more broadly indicates that Wendy’s pattern of control is not unique to her. Baldry et al. (2012) have identified that cohort members had ongoing police contact as persons of interest (as well as victims of crime and under civil mental health legislation) and periods of incarceration over their lives. Cohort members also experienced significant social disadvantage as adults and early childhood disadvantage through poor education outcomes, high rates of out of home care and contact with juvenile justice. Baldry et al. (2015b) also found that Indigenous Australians in the MHDCD cohort, particularly Indigenous Australian women with multiple diagnoses, were some of the most criminalized and disadvantaged.

I now turn to draw out a number of dimensions in Wendy’s institutional contact. This discussion is structured thematically rather than chronologically.

A Range of ‘Indefinite Detention’ Options

Wendy is subjected to periods of indefinite detention under civil mental health legislation, guardianship law and on remand in New South Wales, Australia, as well as being subjected to multiple periods of definite detention and other forms of coercive intervention by a range of criminal justice and human service agencies. ⁴ My discussion of Wendy begins in the ‘familiar’ territory of conventional indefinite detention. Wendy is subjected to a number of periods of indefinite detention (as this term is conventionally understood) under civil mental health legislation. One of these is at age 32 where she was involuntary detained in a mental health hospital upon release from a 1-year period of sentenced incarceration. During this period of indefinite detention, hospital staff reported Wendy as having ‘absconded’ and request police to immediately return her if she is found. This period of indefinite detention lasts only 2 weeks because Wendy is charged with property-related offences and is remanded in custody. Wendy is not only subjected to disability-specific indefinite detention, she also has 41 adult prison custody episodes over a space of 19 years. Around half of these are instances of indefinite detention on remand awaiting trial (21) for periods ranging from 1 day to 7.5 months.

The forms of detention just mentioned do not depart from the familiar territory of conventional indefinite detention – all involve undefined periods of confinement in legislatively purposed places of detention. Yet, even within the contours of conventional indefinite detention, it is apparent that disability enables additional opportunities for indefinite detention. For Wendy, civil mental health indefinite detention is not an alternative to mainstream indefinite detention through remand. Rather across her life, she is legally designated at various times as legally capable or incapable, travelling between different jurisdictional domains of criminal law and forensic and civil mental health law, and is ultimately subjected to multiple forms of conventional indefinite detention.

Multiple and Generative Nature of ‘Definite’ Disabled Confinement

Wendy is also subjected to 20 instances of sentenced definite detention in prison, cycling in and out of relatively short periods of detention ranging from 5 days to 13 months. Thus, in addition to conventional indefinite detention, she is also subjected to definite detention which, in its frequency and its nature of generating further opportunities for additional detention, is rendered ‘indefinite’ in the sense of being recurring and routinized. As such, the indefinite/definite detention divide is largely artificial where one is subjected to multiple successive periods of detention with no clear end to this cycle. In its submission to the Indefinite Detention Australian Senate Inquiry, the First Peoples Disability Network (2016) referred to the ‘recurrent and indefinite detention’ to capture this phenomenon of ongoing periods of definite detention (see also Steele, 2016b).

While in adult custody, Wendy is charged with 127 offences, primarily for intimidation, disobeying directions and abusive language. Wendy is noted as being a ‘management problem’ in custody and as having a ‘[h]istory of aggression and harm to others’. She spends a number of periods in ‘protective’ custody, as well as periods in segregation for disciplinary reasons. Therefore, in addition to multiple periods of imprisonment, it is significant that these periods of imprisonment are themselves generative of new possibilities within prison for detention in different spaces and subjection to coercive interventions (‘micro carceral practices’) (see also Spivakovsky, 2017). Wendy is not only segregated for disciplinary reasons, she also has 40 recorded instances of self-harm during her short prison episodes; she is segregated for a number of these. Wendy’s self-harm and her subsequent isolation is reflective of the argument that the complex relationship between pre-existing disability, the circumstances of prison per se and the use of segregation and isolation for those at risk gives rise to a ‘maddening’ effect of prison (Ben-Moshe, 2017: 280–282) – and, for our purposes, state complicity in the disablement and injustices against incarcerated Indigenous Australians who are disabled.

While in prison, Wendy reports to police incidents of violence by other inmates. For example, just before her 31st birthday, Wendy reports having been sexually assaulted by two female inmates while serving a custodial sentence. She discloses these incidents during a court appearance. The police events narrative states:

It is the belief of the prison staff that the victim will be sentenced to a mental institute for a period of time and that she only brought up the allegation of sexual assault to the judges attention so as the judge would go easy on her.

Due to the victim’s mental capacity, the fact that the descriptions of the cell mates do not match the actual cell mates, the times of the incident and the continued changing of the victim story, it is doubtful that any sexual assault took place.…The victim is a rather large female who has a history within the prison system of being violent towards herself, other prisoners and prison officers. The description given by the victim of the two offenders does not fit with the victim being so easily over powered. The victim is a rather large, strong female.

For Wendy, police custody constitutes a further carceral space. When Wendy is not in Department of Corrective Services’ custody, she has multiple police custody episodes generally while she is waiting to be charged or interviewed, including for breaches of bail. For the 12-year period of available data (from the age of 27 to 39), Wendy has around 76 police custody episodes. As her contact with police begins when she is 13 years old and hence the available data are for only half of the years of her police contact, it is likely that she has had many more police custody episodes than what is in the data.

A number of scholars, across Australia and Canada, have argued that a medicalized approach to disability opens up new criminal justice possibilities for Indigenous people in settler colonial contexts (see, e.g. Chapman, 2014a; Baldry et al., 2015b; Voronka, 2013). These new criminal justice possibilities are evident in relation to Wendy’s subjection to conventional indefinite and definite detention. The fact that these additional possibilities for incarceration are by reason of her designation as legally incapable (via diagnosed disability) rather than directly by reason of her Indigeneity allows the state through law to represent incarceration as ‘noncolonial’ (Chapman, 2014a) and disconnected from larger political issues of race and colonization, including intergenerational and historical dimensions.

My analysis so far challenges the limits of in/definite detention as a framework for articulating institutional injustice by troubling the temporal assumptions in this dichotomy. The focus on the ‘indefinite’ legal order, as the site of in/justice focuses on the clean, desk-based moment of the order of detention itself, hides the material and carnal effects of incarceration regardless of its time period and casts these effects beyond law’s responsibility (Cover, 1986) and legal understandings of injustice. ⁵ In focusing on the order, the ‘disabling effects and legitimacy of the prison remain intact’ (Ben-Moshe, 2017: 285). Indefinite detention, as conventionally understood, contributes to a ‘legally ordered suffering’ (Veitch, 2007; on law’s complicity in historical suffering of Indigenous Australians, see van Rijswijk and Anthony, 2015). I will now problematize the spatiality of indefinite detention, which rests on a detention/liberty divide. I focus on the community (and, indeed, the body) as a carceral space for Wendy.

Beyond ‘Detention’ Spaces: The Community and the Body as Carceral

Wendy’s first recorded police contact as a POI is at 13 years of age for stealing. Wendy has around 240 charges principally for low-level property-related offences, assault and breach of bail in the space of 25 years of available data. However, she has around 330 recorded contacts with police as a POI and an additional 30 contacts as a victim and 25 contacts as a ‘patient’ under civil mental health legislation. Wendy has more frequent contact with police than her formal criminal charges suggest, and this contact begins at an early age. As such her detention is but one aspect of a broader pattern of control through the criminal justice system, such that the ‘community’ is itself a carceral space for Wendy.

There are two key features that characterize Wendy’s contact with police as a POI which enrich and complicate the spatial dynamics of conventional ‘detention’. I will now turn to discuss these features.

Confinement Through Movement

Police have powers under civil mental health legislation and guardianship legislation to deal coercively with individuals if they appear to have a mental illness. In particular, where police believe a person is experiencing a mental health issue, police can take an individual to a hospital for assessment by a medical practitioner with the view of possibly ‘scheduling’ the individual to a mental health facility for involuntary containment and treatment. The authority lies with medical and psychiatric professionals to determine whether assessed individuals ultimately remain in the mental health facility or if they are instead shifted back into the hands of police. Thus in addition to individuals being moved by police into hospitals, there is a real possibility of movement back out and into the responsibility of police, leading to a constant state of suspension between agencies.

When Wendy is 34 years old, she resides (as a condition of various criminal legal orders including probation, bail and diversionary orders) in institutional disability supported accommodation based in a hospital. Hospital staff, clearly frustrated with Wendy’s behaviour (including her regularly running away from the centre), seek police assistance to move Wendy out of this accommodation through reporting her breaches of the various criminal legal orders which have placed her there and through seeking she be taken elsewhere to be assessed under civil mental health laws. In responding to such requests by hospital staff, the police events narrative notes the complexities that interactions and tensions between criminal law and civil mental health law present for comprehensive control of Wendy. For example, 7 months into her stay, police are called after Wendy is returned to the hospital after having absconded and then subsequently refuses to take her medication and becomes aggressive towards staff:

Police attended to sight the [missing person ‘MP’]. Upon arrival Police viewed the MP she did appear agitated and a little aggressive. The Nurse Unit Manager [NUM] then stated that Police were to take the MP and have her charged as she had breached her bail conditions. Police observed the bail conditions and it was noted that in fact her conditions had not been broken as the MP was residing at the [centre]. There were no such bail condition in which stated that the accused was to be under mandatory supervision 24 hours a day. After Police informed the NUM of this the NUM then attempted again to have police remove the MP from the facility by taking her to [public mental health hospital] as they believed that if Police took the MP then [public mental health hospital] would mandatorily just accept her. The Staff were advised that this is not the case. Due to the MP already being in a Government facility Police believed that there was no need for the MP’s location to be altered.

The Carceral Disabled Body and Legal Ordering of (In)Justice

By tracking Wendy’s movements through the administrative data in and ‘out’ of indefinite detention and between different forms of contact with criminal justice, health and human service agencies, I have illuminated a continuous control dispersed across material and legal spaces and mediated by different institutions as ‘care’, ‘punishment’ and ‘protection’. Wendy is exposed to an ongoing continuum of carceral control as both a disabled body and (depending on institutional and other dynamics of a specific institutional contact) a ‘normal’, criminal non-disabled body.

Critical criminologists and critical disability studies scholars have argued that following de-institutionalization there has been the ‘trans’-institutionalization of bodies designated as disabled due to a continuity and fluidity of institutional spaces (Ben-Moshe, 2017; Ben-Moshe et al., 2014). This article is novel insofar as it shows the limits of the legal concept of indefinite detention to encapsulate the complexity and insidiousness of the carceral continuum specifically for disabled people who are charged with criminal offences. In particular, conventional liberal understandings of indefinite detention does not encapsulate ‘benevolent’ or ‘empowering’ forms of control that are typically proposed as progressive reform alternatives to indefinite detention. My analysis through Wendy’s case study suggests that it is not merely the availability of multiple spaces within which disabled individuals can be confined but rather that disability itself is carceral. As such the designation of disability to Wendy provides the heightened, indeed hyper, possibility for carceral control wherever she might be. Disability makes space carceral because of the control that is attached to disabled bodies both by reason of legal orders (e.g. through guardianship and civil mental health orders) and because of the biopolitical regimes of diagnosis and ‘therapeutic’ intervention pertaining to disability generally. As such people designated as disabled who are in the criminal justice system might be paradigmatic subjects of Foucauldian discipline (Steele, 2017a), including reflecting the temporal shift from the episodic control of sovereign power (here in its modern form of state-ordered period of indefinite detention) to the more dispersed and ongoing control of biopower through continuous policing mediated by different institutions (Foucault, 1979: 293–308). ⁶ Moreover, law not only governs individual instances of control but also sits at the border points between different systems of control, thus facilitating a seamless movement between institutions and forms of control (on a similar point, see the argument that criminalized disabled people exist in a ‘liminal, marginalised community/criminal justice space’ (Baldry, 2010: 261; see also Baldry et al., 2013: 227)).

My analysis of Wendy’s case study also suggests that we need to be attentive to the intersections of Indigeneity and disability not only in the identities of the individuals subjected to disabled carceral control but also in the practices of carceral control themselves. The article builds on the argument by Chapman about the ‘noncolonial’ possibilities of disability-based carceral interventions and Million’s argument about the increased jurisdiction over Indigenous land as a form of colonial rule. Here, it is the jurisdiction over the Indigenous body as a disabled body that both extends and deepens colonial rule and masks its continuities of control (and see also Blagg et al., 2017: 345) through the apolitical and pathological prism of disability. The colonial patriarchy that once explicitly operated through segregation and institutionalization (Baldry et al., 2015a) on the basis of Indigeneity is now more diffused and medicalized as disability and health. Far from being a ‘solution’ to addressing Indigenous over-representation in the criminal justice system, coercive health-based interventions are part of the problem. My analysis suggests the need for more careful consideration of how ‘colonial patriarchy’ relates to and harnesses disability in its ongoing adaptation and endurance (Baldry and Cunneen, 2014: 285) through non-race specific measures (286).

Moreover, I have shown that carceral control of Wendy manifested in different material and institutional forms (both disabled and ‘non-disabled’) and was situated in different rationalities but remained consistent and pervasive in her life. This finding suggests that shifting from a dominant racial to disability legal, political and social discourse to rationalize criminal justice and human service interventions in some Indigenous Australians’ lives and bodies does little to disrupt the control and violence they are subjected to. Indeed, the shift from race to disability might consolidate and extend control and violence through tapping into scientifically ‘objective’ and purportedly depoliticized (Kafer, 2013) temporal and carnal rationalizations of the carcerality of the disabled body. The switch from one mode of control to another (portrayed in progressive reformist agendas as shifting individuals into ‘treatment’ and ‘support’ and out of prison) ignores the larger task of decolonizing both criminal justice and health/disability service systems (Blagg et al., 2017: 335). In particular, the ‘solution’ of the community group home is highly problematic (Chapman, 2014b; Spivakovsky, 2017: 380; Steele, 2017a).

My analysis suggests that disability as a discrete category of subjects of indefinite detention ‘matters’ here in a legal sense because of the disability-specific legal options, and that in turning to material disabled and racialized bodies, the legal category of disability consolidates and extends the necropolitical management of Indigenous Australians. The designation as disabled of Indigenous Australians who have contact with the criminal justice system at its minimum results in a mundane and routinized ‘slow death’ (Nixon, 2013), as those designated remain caught within a complex legal network of incarceration and other forms of carceral control and their experiences of interpersonal and institutional violence remain unacknowledged. Yet at the other extreme, this designation can result in actual death in those situations when police resort to lethal shooting to deal with a mental health crisis, where individuals experience fatal institutional violence or when individuals self-harm and commit suicide in custody (see, e.g. Razack, 2015). Where Indigeneity itself is ‘lethal’, the carcerality of disability then heightens the exposure of Indigenous Australians to violence and death at the same time that the inherent racism and colonialism of this violence and death is negated under the guise of individual health issues that render inevitable these circumstances of heightened exposure (Chapman, 2014a; Razack, 2015; Puar, 2017).

Positioning the disabled body itself as the site of carcerality (Steele, 2017a) highlights the dangerous possibilities of control enlivened by disability which go even beyond Keenan’s observation (2018) of the mobile carcerality of electronic tagging – here no electronic tag is necessary, only a diagnosis (or even a perception of a diagnosis in the case of police) and the disabled body can (to borrow from Keenan) take carceral space with it. Yet the notion of the body as a carceral site falls outside of the legal concept of indefinite detention which my analysis suggests might be an ableist (and arguably also ‘patriarchal white sovereignty’ (Moreton-Robinson, 2004)) disembodied approach because it is based on the autonomous and closed body which is typically free from intervention beyond specific criminal legal orders and beyond the limitations imposed by the walls of specific places of detention.

My analysis of disability and indefinite detention is significant not only for illuminating the ongoing carceral control of criminalized bodies designated as disabled, but also framing this control as an injustice. Mawani (2014: 71) argues that ‘Law draws its meanings and gains its authorizing force through specifications and limits on time (minimum/maximum sentences or statute of limitations, for example) and through the temporalities it inhabits and brings into being’. Ultimately, Wendy’s case study troubles legal understandings of incarceration to be too narrowly focused on temporal and spatial circumstances of particular legally ordered instances of detention. These legal understandings obfuscate causality and continuities between periods of detention and other forms of control, across jurisdictional domains and material spaces and from both outside and within the body. As Mawani (2014: 69) states, ‘law produces, engages, and inscribes discontinuities between past, present and future to fortify its own authority, sovereignty, and legitimacy’. Law’s ordering of time results in an ‘organised suffering’ (Veitch, 2007: 1) and, indeed, in the context of Indigenous Australians an organized annihilation (Razack, 2015). Law’s dispersing of control of bodies designated as disabled across different jurisdictions, different legal orders and different material spaces and modes of intervention gives a sense of incoherency across these and renders it difficult to attribute responsibility to the state and to law for harm that occurs over time, notably ‘suffering that accrues as part of an eviscerating daily life’ (van Rijswijk, 2015: 332) by reason of indefinite (in the sense of ongoing, continuous, routine, recurrent, cyclical) carceral control.

Using indefinite detention as conventionally understood as a reference point for justice demands and progressive reforms only works in a liberal politics where people are viewed as autonomous, impermeable bodies which are otherwise free from coercive interventions beyond limited legal circumstances such as sentenced penalty. Such a liberal approach takes law’s account of itself at face value. In its deference to legal rights and process, this liberal approach erases law’s own complicity in carceral control and hides the relational and compounding nature of multiple legal instances of confinement and other forms of control associated with diagnosis, treatment and service provision, doing nothing to confront the carceral nature of the disabled body itself. A liberal approach to indefinite detention does not address and prevent future broader institutional injustices at stake that are hinted at in the administrative data on Wendy: intergenerational child welfare interventions, impunity for sexual violence and over-regulation by disability services. Through the individualizing and pathologizing effect of disability, Wendy’s possible injustices as deeply embedded structural effects of ongoing settler colonialism simply become her problems caused by her criminality and disability. Reforming indefinite detention of Indigenous Australians into disability support in the community reduces structural and historical injustices of settler colonialism and ableism to individual medical issues (for a similar argument in the context of humanitarian immigration practices specific to asylum seekers requiring medical care, see Tiktin, 2011). There is no questioning of the political, historical and legal circumstances in which Wendy’s disability came about, including state, legal and institutional complicity in her disablement (Puar, 2017). Moreover, the very fact of the lack of attention in the administrative data to state-perpetrated disablement, violence and injustice through coercive interventions (writ instead as nonviolent, mundane and routine administration of a body) is telling of how ‘legitimate’ official state administrative records themselves compound official judicial and legislative representations and epistemologies of the justice of indefinite detention and other forms of carceral control. As such, these administrative record-keeping systems themselves might be important sites of political intervention (Steele, 2017b).

Legal reform focused on moves from indefinite to definite detention risks working within and affirming binaries sustaining rather than undermining law’s legitimacy: indefinite/definite periods of detention, arbitrary/procedurally individualized and confinement/community. While such reform agendas are important in reducing the discrimination that results in the unequal distribution of indefinite detention within the population, my concern is that these reform agendas should not be an exhaustive strategy because they operate within oppressive ableist and settler colonial conditions of structural injustice (Anthony, 2018) which are masked as objective, apolitical and medical. In shifting from a legal vantage point to determine the (in)justice of indefinite detention, to a carnal and material vantage point of the racialized and disabled body, it might be possible for law reform agendas to move beyond the legal subject bounded by one sentence, one place and one point in time, to see a body moving through time and space caught in a continuous control that is attached to the body.

In thinking about the ‘unevenness of how populations live and get to live time’ (Puar, 2009: 166), we must move beyond the limitations of legal understandings of temporality and spatiality of indefinite detention. As Adams and Erevelles argue, we need to think beyond rights and the liberal individual to an ontology of disabled life as valued and worth living (Adams and Erevelles, 2017: 362). To this end, we need more complex relationships between disability, law, institutions and violence in order to invigorate meanings of in/justice, including a greater appreciation of the complicities of law, institutions and services in the existence and representation of injustice (Baldry et al., 2013: 227) and in disability itself (Ben-Moshe, 2017: 282). In doing so, we can see and demand accountability for a wider set of institutional injustices.