From punishment to protection: Containing and controlling the lives of people with disabilities in human rights

Abstract

In the last decade, criminology has begun to raise concerns about people with disabilities’ problematic relationship with criminal justice systems. Yet we have ignored their problematic relationship with civil justice systems; a relationship which has seen people with disabilities subject to a range of punitive civil controls in the wake of their deinstitutionalisation. This article draws attention to one such punitive civil control, the Supervised Treatment Order regime in the Australian state of Victoria. Drawing on Foucault and his interlocutors’ work on ‘governmentality’, and engaging with Cohen’s concept of ‘magical legalisms’, the article reveals how this civil regime has become an effective mechanism for governing the lives of sex offenders with disabilities post their release from criminal justice systems. The article illuminates how this unusual function of the regime has not only been obscured from criminology’s view through claims of legislative intent, but further reconstituted as protective of people with disabilities’ human rights. The article concludes by discussing the implications of criminology’s absence from engaging with such punitive civil orders for people with disabilities and the wider penal field.

Keywords

civil law disability human rights legally hybrid practices punishment

Introduction

Only in the last decade has criminology begun to unravel and explore the problematic nature of people with disabilities’ relationship with criminal justice systems (see Baldry et al., 2011; Harcourt, 2008). While this work represents an important step forward for the discipline, there remains a critical need for criminology to engage with equally concerning relationships taking shape beyond the confines of criminal justice.

In Victoria, Australia for example, the past decade has seen the introduction of Supervised Treatment Orders (STOs) under the Disability Act (2006). STOs are civil orders which only apply to people with intellectual disabilities, and in particular, only to those who, based on a historic pattern of ‘violent or dangerous behaviour’ are:

identified as posing ‘a significant risk of serious harm’ to others;

categorised as needing to be removed from the community; and

classified as requiring ‘treatment’ to reduce their risk of harm – treatment which includes practices such as chemical castration or prescription of other behaviour-modifying medications.

Clearly STOs have a number of features that are, or at least should be, of interest to criminologists. Yet STOs, like many other civil and administrative orders, have been largely ignored by the discipline. Our lack of attention to these issues is problematic for two reasons.

First, it has consequences for the discipline. As Velloso (2013) recently argued, notions of punishment and punitiveness operate in, among and through a broader kinetic structure of criminal, civil and administrative law. Thus, when we constrain our attention to the criminal justice arena, we limit our understandings of punishment and society.

Second, it has consequences for practice. We have left the roles of inquiry and scrutiny to others. Indeed, where we have hesitated, scholars from disciplines like disability studies have eagerly engaged. Yet, these scholars ask questions that are fundamental to their discipline, not ours. Accordingly, insight into the operation of punishment and punitiveness is not only of little to no concern in their work, but as this article will demonstrate, manifestations of punishment and punitiveness in civil and administrative justice arenas go unnoticed and uncontested.

The objective of this article is therefore threefold: (1) to bring the discipline much needed insight into issues of disability; (2) to situate these insights within, and contribute to recent discussions about the limited scope of punishment and society inquiry and the need to turn our attention to broader issues of governance; and (3) to explore one such issue of governance and the ways by which it illuminates how punishment and punitiveness operate among and through multiple justice arenas.

To achieve these objectives, this article works through the case example of the STO regime in the Australian state of Victoria. Drawing on Foucault and his interlocutors’ work on ‘governmentality’, and engaging with Cohen’s concept of ‘magical legalisms’, the article analyses the emergence, orientation and sustained appeal of these targeted civil orders, illuminating the ways by which they speak to the fluid nature of penal boundaries and broader questions of governance. Data supporting this analysis include the key government reports leading to the formation of the STO regime in Victoria, and transcripts of STO Tribunal Hearings that have been made public since the regime came into effect in 2007.¹ The article begins by reflecting on the current scope and limits of punishment and society inquiry.

The scope and limits of punishment and society inquiry

A number of scholars have begun to question the narrow field within which we conceptualise punishment and punitiveness, and draw attention to the myriad ways traditional understandings of the prisons–punishment–punitiveness nexus are being modified. Indeed, the recent growth in ‘criminology of mobility’ scholarship, has revealed how police, courts and prisons are increasingly being repurposed so as to accommodate the goals of administrative law, and reconfigured so as to align with a broader civil and administrative objective of ‘“rebordering” political and territorial space’ (Aas, 2013: 34; Bosworth, 2012). Yet criminology of mobility scholars are not the only ones to have observed such change in the penal field.

Coming from the other end of the spectrum, a handful of scholars have begun to show how civil and administrative processes are increasingly being repurposed so as to accommodate the goals of criminal law. Beckett and Herbert’s (2009, 2010) work on banishment, for example, illuminates the emergence of what they term, ‘legally hybrid’ practices. These practices utilise a broad spectrum of easily granted civil and administrative orders, which act in the first instance to divide, exclude and banish people whose behaviours have been deemed ‘disorderly’ (as opposed to criminal), but which have the capacity – through recourse to the full brunt of the criminal law – fundamentally to remove, criminalise and punish any person who refuses to manage their conduct in desired ways.

Recently, Beckett and Murakawa (2012) proposed that these legally hybrid practices are in fact a key component of a much broader project which they call, the ‘shadow carceral state’. The shadow carceral state uses legally hybrid practices as pathways to prison for a range of populations hitherto unreachable by criminal law due to the non-criminal nature of their behaviour. By blending elements of civil, administrative and criminal law, legally hybrid practices disguise and obscure these pathways by operating beyond legally recognised spaces of punishment (i.e. the criminal justice arena). In fact, Beckett and Murakawa (2012: 235) argue, these practices remain in the shadows precisely because of the way that ‘legal doctrine largely defers to legislative intent’, such that ‘if legislators do not explicitly state that a sanction is intended to be punitive, then it is not’.

What then, I wonder, lurks in the shadows of our own reluctance to recognise or engage with punitive practices that emerge beyond the confines of the criminal justice arena? Valverde (2012) offers a response.

In our reluctance to look beyond the criminal justice arena, we have failed to recognise that penology has in fact ‘died a very quiet death’. We have also failed to observe the new trends of governance that have emerged in its place (Valverde, 2012: 247). Trends which operate across different justice arenas, releasing the monopoly criminal justice mechanisms have held in the ‘larger universe of state punishments’ (Valverde, 2012: 249). Trends which are exemplified by the emergence of a shadow carceral state. Thus, as Valverde implores, in order to comprehend the nature of punishment and punitiveness in contemporary society, we must consider how they operate within and through broader issues of governance. We must explore the myriad ways by which operations of punishment and punitiveness are being recruited, reconfigured and repurposed across justice arenas in the name of governing the population. But the question is, how to undertake such a study of governance? Foucault’s lectures on governmentality offer insight.

In his 1977–1978 Lectures at the Collège de France, Foucault (2007) argued that modern power relations operate to regulate and manage the population’s conduct towards the strengths of the State. This ‘governmentality’, he proposed, utilises the tactics inherent to both discipline and security’s strategies for normalisation. Accordingly, we have tactics for judging, classifying, modifying and establishing an optimal model of the ‘norm’ (i.e. disciplinary tactics), working alongside tactics for plotting the distribution of the population on a spectrum of normality, and techniques for ‘bringing the most unfavourable in line with the more favourable’ on that spectrum (i.e. the apparatus of security) (Foucault, 2007: 63). Thus, as these lectures suggest, while modern power relations are concerned with ‘the conduct of conduct’, it is important to recognise that there can be a plurality of disparate practices and projects of governance operating at any one time, which harness any number and combination of tools, techniques and logics for shaping and influencing said conduct. Accordingly, if we are to understand the myriad ways by which operations of punishment and punitiveness are being recruited, reconfigured and repurposed across justice arenas in the name of governance, we must begin with what Valverde (2010: 218) would call, an ‘organised set of questions’ for teasing out specific governance projects. We must ask: (1) what particular ways of being or practices have become ‘problems’ deserving of government attention and intervention? (2) What combination of tactics, technologies and logics are assembled to regulate and manage the construction of this ‘problem’ and its proposed ‘solution’? And (3) why has this combination of tactics, technologies and logics been assembled in this particular configuration at this time? These are the questions this article now asks and answers in the context of the Australian state of Victoria’s STO regime.

The dual problems of insecurity

Rose (2000) contends that contemporary strategies of governance can be broadly divided into two circuits: circuits of inclusion and circuits of exclusion. Circuits of inclusion address issues of security; they seek to regulate conduct through dispersed practices which optimise individual potential and self-advancement. Whereas circuits of exclusion address problems of insecurity; they utilise practices and mechanisms which capture and contain select segments of the population who are seen as unable or unwilling to manage their conduct in desired ways. It is the contention of this article that Victoria’s STO regime has manifested in relation to two problems of insecurity; a problem of insecurity, and a problem with insecurity’s management.

The STO regime is a targeted practice which is regulated by strict criteria. To be subjected to an STO, a person must:

have an intellectual disability (i.e. significant sub-average intellectual functioning);

have previously ‘exhibited a pattern of violent or dangerous behaviour’;

be identified as posing a ‘significant risk of serious harm to another person’;

be classified as benefiting from a treatment plan that targets their risk;

be unable or unwilling to comply with the treatment plan; and

be judged as requiring detainment in order to ensure treatment.

In other words, the STO regime targets violent and dangerous people with disabilities who are unable or unwilling to manage their risk in desired ways. In practice, however, this regime has mobilised around a slightly different target.

STOs have become effective mechanisms for capturing and containing offenders with disabilities, and in particular, sex offenders with disabilities, post their release from the criminal justice system. Indeed, of the 40 or so individuals subjected to this regime since its inception in 2007, 70 per cent have had previous contact with the criminal justice system (either through criminal convictions or from receiving non-custodial supervision orders as a result of being unfit to plead) (Office of the Public Advocate, 2010), with approximately 80 per cent of this sub-group having committed sexually based offences, and the majority (72 per cent) having committed sexual offences against children (Office of the Public Advocate, 2010).

To an extent, this unspoken target of the STO regime is not surprising. In Australia alone, the past decade has spawned a range of preventative, post-sentence supervision and detention measures which target violent and dangerous offenders, especially sex offenders (see Dangerous Sexual Offenders Act 2006 (WA), and Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)). There are, however, two key distinctions between these mechanisms and the STO regime.

First, although the STO regime appears effective at capturing and containing sex offenders, these offenders are not the explicit target of the regime, nor for that matter, is offending behaviour. As the criteria previously outlined indicates, STOs target violent and dangerous people with disabilities, offenders and non-offenders alike.

Second, prevention is not the concern of the STO regime, or at least, not its sole concern. Rather, STOs are touted as mechanisms for protection. Of course, it is easy to argue the STO regime ‘protects’ the community much in the same way as post-sentence supervision and detention measures ‘prevent’ crime – by removing and detaining ‘dangerous’ and ‘risky’ people from the community. Yet, the STO regime claims to protect people with disabilities as well. The question is, from what?

By capturing and containing people with disabilities from the community, the STO regime claims to protect people with disabilities from a criminal justice system that would capture and contain them. Accordingly, in the case of LM (Guardianship) [2008] VCAT 2084, it is argued that enforcing an STO would:

significantly reduce the risk of LM being charged with another offence and possibly facing a prison sentence … [and that] if LM was going to be detained, which limits her human rights, it ought to be done in a clear, transparent and accountable manner, which a STO provides.

Similarly, in the case of AC (Guardianship) [2009] VCAT 1186, an STO is requested because AC would otherwise be ‘likely to be managed in other settings such as psychiatric or criminal justice settings and that this would “significantly impair his current liberties”.

Yet, as these cases reveal, it is not the capacity of the criminal justice system to capture and contain problematic populations that is the problem per se. Rather, it is the apparent inappropriateness of this type of confinement for this specific population. The criminal justice system, it appears, is not an intended or desired container for managing the conduct of people with disabilities. Indeed, as the cases above indicate, to capture and detain people with disabilities in the criminal justice system would significantly limit and potentially breach their human rights.

Thus it would seem that the STO regime targets two, highly contradictory problems of insecurity. It targets a problem of insecurity; the offenders and other dangerous and risky people with disabilities who are unable or unwilling to manage their conduct in desired ways. But it also targets a problem with insecurity’s management: the circuits of exclusion, and the indiscriminate ways by which key mechanisms within these circuits manage the conduct of problematic populations.

The question therefore becomes, how has the STO regime come to operate in this fashion? How has it come to be that this regime can, almost in contradiction, effectively capture, contain, and coercively manage the behaviours of offenders with a disability post their release, and yet at the same time claim to protect these individuals from a criminal justice system that would capture, contain and coercively manage their behaviour? What combination of tactics, technologies and logics has been assembled to regulate and manage these dual and highly contradictory problems of insecurity?

The markings of a shadow carceral state

It is the tactics, technologies and logics of Victoria’s shadow carceral state which regulate and manage the dual and highly contradictory problems of insecurity outlined above. More precisely, these tactics, technologies and logics enable a sub-population of offenders to be captured, contained and managed when there are otherwise no legally legitimate grounds for such action.

As previously noted, STOs have become effective mechanisms for capturing and containing offenders with disabilities, and in particular, sex offenders with disabilities post their release. How this is possible can be easily explained. Tribunal Members have made the strict criteria of the STO regime intelligible through the tools, technologies and logics of criminal law and justice. Thus, for example, many Tribunal Members refer to a person’s criminal record in order to identify who may pose an ongoing risk to society (see, for example, DAJ (Guardianship) [2009] VCAT 972; AC (Guardianship) [2009] VCAT 753; MM (Guardianship) [2008] VCAT 1282). Others use risk assessment technology to pinpoint where on the spectrum of problematic behaviours the person with a disability resides (see PSN (Guardianship) [2011] VCAT 857 and AC (Guardianship) [2009] VCAT 1186). Others simply draw on the logics of criminal law to identify and classify what constitutes harm (see LM (Guardianship) [2008] VCAT 2084). With these tools of intelligibility in play, it is of little surprise that STOs ultimately tend to capture and contain offenders with disabilities.

Once identified, classified and categorised through criminal law and justice, these individuals are then exposed to the quintessential tactics of disciplinary power. That is to say, under an STO they are divided and separated from the rest of society, their movement and actions are made subject to measurement and constant surveillance and their behaviour is both modified through coerced therapy sessions, and managed through chemical restraints (e.g. anti-libidinal medication).

It is for these reasons I propose STOs are best understood as legally hybrid practices of governance. They are practices for managing conduct which, while located in civil law, borrow and blend the tools, tactics and logics of disciplinary power which more typically circulate in the criminal justice arena.

And yet, while legally hybrid in nature, STOs do not function in the same way as the practices identified by Beckett and colleagues in the first section of this article. STOs are not pathways to prison. They are pathways for penal and disciplinary power’s movement into the community. Indeed, by using the tools and technologies of the criminal law to first identify, classify and categorise who should receive an STO, but then switching to the civil law’s lesser burden of proof, and minimal avenues for contestation to divide further and ultimately contain these populations, these legally hybrid practices extend and reconfigure penal power in quite concerning ways. Specifically, they provide the means by which ‘violent’, ‘dangerous’ and ‘risky’ members of the population, for whom there is little to no legally legitimate grounds upon which to intervene directly in their lives (e.g. post-sentence, preventative detention measures), can continue to have their lives governed and managed by the disciplinary tactics of the penal system, post their release.

And yet, despite this function, one of the strongest claims surrounding STOs is that they protect people with disabilities from a criminal justice system which would identify, classify, categorise, separate, modify and manage them in almost, if not the exact same ways as those outlined above. How is this additional feature of the STO regime possible?

There are two factors at play. First, we have the logic of the shadow carceral state; a logic which defines actions and processes in terms of legislative intent. Thus, as the Tribunal Member in the case of LM (Guardianship) [2008] VCAT 2084 explains:

At first impression, it may be considered that LM is being punished more than once for an offence in respect of which she has already been finally convicted or acquitted in accordance with law … However … one of the purposes of detention [under an STO] is the protection of members of the public and LM herself. The purpose of the detention is not to punish LM.

However, as this example illustrates, it is not just that the punitive nature of STOs are denied and largely hidden through claims of legislative intent. Rather, it is that in the place of punitiveness, claims of protection have taken centre stage. This is a ‘magical legalism’ (Cohen, 2001).

Cohen coined the term magical legalism to explain one of the methods authorities use to deny atrocities and claim legitimacy in the face of illegality. Thus, a magical legalism is a form of ‘interpretive denial’ which creates ‘an opaque moat between rhetoric and reality’ through which someone accused of an atrocity can admit their actions, but then deny the grounds upon which those actions could be deemed illegal (Cohen, 2001: 108). In the case of the STO regime, the legislative intent of the Disability Act (2006) provides an opaque moat between the rhetoric and reality of punishment – it defines what punishment is and where it can take place. It does not, however, provide the interpretive denial necessary to transform punishment into protection. Instead, this magical legalism is provided by the use of Victoria’s Charter of Human Rights and Responsibilities Act (2006) (the Charter).

The magical legalism of human right protections

Under the Disability Act (2006), all Tribunal Members must demonstrate they have considered and applied the principles of the Charter before imposing an STO on a person with a disability. In theory, this prescription safeguards the rights of people with disabilities. In practice, something else occurs.

The Charter has become a powerful tool for justifying, permitting and legitimising the grounds upon which the rights and lives of offenders with disabilities who have been released from the criminal justice system can be restrained when there is no other legally legitimate mechanism or grounds for doing so. Thus, for example, in the hearing of LM (Guardianship) [2008] VCAT 2084, the Tribunal Member recognises that LM has been ‘released [from the criminal justice system] on an undertaking to be of good behaviour for a period of 12 months’ – a decision not typically afforded to dangerous, risky and violent offenders who require preventative detention – and yet, the Member quickly clarifies that imposing an STO in LM’s case is not only justified under the Charter, but more importantly, necessary to ensure the rights of her and the community are protected. As they explain:

I find that the limitation on LM’s right to ‘equal and effective protection against discrimination’ is justified after taking into account the considerations set out in section 7 (2) of the Act. Firstly, it is clear from the wording of section 191 (6) that one of the purposes of detaining a person with an intellectual disability pursuant to a STO is to protect members of the public from the possibility that the person with the intellectual disability may cause them serious harm. It also seems to me that another justification for the detention of people with an intellectual disability in these circumstances is to protect them from the serious legal implications that would follow if they seriously harmed another person. In LM’s case, she has already been convicted of a number of serious offences and … it presently appears necessary to detain LM whilst she is receiving treatment to reduce the risk that she may re-offend. Further, the STO can only be made if there is no ‘less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’ (see section 191 (6) (e) of the Act) and I have found this to be the case.

Thus, it is apparently justifiable to impose an STO and limit the rights of people with disabilities to equal and effective protection against discrimination, because of the potential they may become subject to a form of detainment which would otherwise limit their rights to freedom of movement and their right to liberty and security of the person. However, it is also justifiable to limit the exact same rights to freedom and liberty under an STO, because this civil form of detainment is less restrictive and has fewer additional consequences than its criminal law counterpart, and therefore adheres to the rules by which human rights are allowed to be limited. And, of course, we should not forget, the legislative intent for this form of civil order includes protection, not punishment. This is the interpretive denial the Charter affords the STO regime.

This magical legalism of human rights protection has significant consequences. First, it obscures the ways by which certain offenders have become subject to penal power post their release. As LM’s case indicates, any concerns about double punishment are not only disqualified by deferral to legislative intent, but further proven irrelevant and illogical through interpretive denial. But more than this, this magical legalism of human rights protection further legitimises certain constructions about the conduct of people with disabilities and how best to manage it. It gives weight to claims that some people with disabilities need to be divided, separated and contained away from the rest of society due to their conduct. It gives weight to claims that the criminal justice system is not the appropriate place from which to contain and intervene in the lives of people with disabilities. And it gives weight to claims that the shadow carceral state, with its legally hybrid practices of governing conduct through a blend of civil, administrative and criminal law, is the appropriate place for intervention and management of people with disabilities.

Thus the question becomes, how has this come to be? That is, what conditions have enabled this magical legalism of human rights protections to emerge within the STO regime and contribute to the production of these specific claims about people with disabilities and the places best suited for their management?

The symbiotic relationship of disability studies and disability services

There is a wide constellation of conditions that have enabled Victoria’s STO regime to manifest in the way it has. This constellation primarily orbits around the symbiotic relationship which has formed between disability studies and disability services. A relationship which sees government responses to the conduct of people with disabilities provide the conditions for disability studies to emerge and take shape, and the assertions, theories and frameworks of disability studies influence and reorient government responses to people with disabilities. While this symbiotic relationship has provided the conditions for numerous developments in the lives of people with disabilities over time, this section only addresses two: people with disabilities’ integration in the circuits of inclusion through the process of deinstitutionalisation, and people with disabilities’ relocation to the circuits of exclusion through the problematisation of deinstitutionalisation.

The circuits of inclusion and the deinstitutionalisation of people with disabilities

The emergence of disability studies can largely be traced to the late 1960s and early 1970s when a handful of scholars began to query people with disabilities’ confinement within large institutional settings. For these scholars, institutional confinement was an unacceptable practice of government which had arisen from an outdated model for understanding disability: the medical model.

The medical model of disability presents disabilities as limitations and barriers which people face as a direct result of impairments. As such, disabilities, just like impairments, are seen to require some form of medical or quasi-medical intervention to be addressed (e.g. institutionalisation). Yet, the medical model is only one way of viewing the lives of people with disabilities. A second, according to early disability scholars, is the social model of disability (see Oliver, 1983).

Under the social model of disability, disability is understood as a social process. Accordingly, while people with disabilities may have physical or mental impairments, it is understood that their disablement is ultimately caused by society and the barriers it imposes on their lives (e.g. containment, segregation and so on). The issue therefore becomes how best to enable governments and society to recognise and respond to the inequalities and barriers it imposes on people with impairments. This was and continues to be the underlying ethos of disability studies.

In the 1960s and 1970s this quest to enable governments to recognise and respond to the inequalities and disabling barriers people with impairments face took form through the work of Scandinavian disability scholars’ principle of normalisation (Bank-Mikkelsen, 1969; Nirje, 1969). The principle of normalisation states that people with disabilities share the same rights as other citizens – that all citizens are entitled to live a normal life within the community. Accordingly, to achieve normalisation, societies must remove, or at least significantly reduce any seclusions or restraints experienced by people with disabilities that infringe upon this right.

Shortly after its appearance in Scandinavian scholarship, the principle of normalisation was adopted by early disability movements in the USA and the UK as a fundamental position. These movements, having observed the traction gained by feminist and black activists through the discourse of civil rights and equality, had militarised their platform in a similar configuration (see Gooding, 1994). Thus, they championed the principle of normalisation as an issue of equality and civil rights, ensuring that assertions about people with disabilities’ rights to a normal life in the community underpinned several subsequent United Nations Declarations for Human Rights (see, for example, the United Nations Declaration on the Rights of Mentally Retarded Persons (1971) and the Declaration on the Rights of Disabled Persons’ (1975)). In turn, these UN Declarations provided the impetus for several signatory countries to embark on a process of deinstitutionalisation (see Stroman, 2002).

Thus in the span of only a few years, disability studies not only emerged as a distinct stream of scholarship, but it further contributed to:

the principle of normalisation being embedded as a fundamental factor in the emergence and orientation of deinstitutionalisation;

deinstitutionalisation being configured as a rights-based process; and

disability scholarship being established as the key informant of this rights-based process.

Of course, the decision to transfer people with disabilities from large institutions to the community required a range of supportive frameworks and controls. In the United States and Australia, these additional supports were once again informed by disability scholarship; this time through the rights-based theory of ‘social role valorisation’.

Social role valorisation theory proposes that people with disabilities are devalued by society because they have not been allowed to contribute to it (Wolfensberger, 1983). It follows therefore, that removing institutional barriers to living in the community is only the first task for ensuring their normalisation. The next is contribution and acceptance. Specifically, a normal life for people with disabilities will only occur when: service providers enable people with disabilities to contribute to society; members of the community accept and appreciate these contributions; and, members of the community foster new opportunities to integrate people with disabilities into society (Wolfensberger, 1983).

These propositions about normalisation and social role valorisation provided the conditions for two important changes in Australia’s socio-political context. First, they prompted a shift in the scope and scale of governing disability. Thus, from the mid-1980s, the Health Department – which at the time, operated large mental health institutions – ceased responsibility for intervention in the lives and conduct of people with disabilities, with this responsibility instead transferred to the Community Services Department, which was responsible for delivery of services in the community (e.g. aged care, home care, food and cleaning services and so on).

This shift in responsibility was supported and sustained by a new set of laws and legislation for governance. This was the second important change in the Australian context: the operationalisation of normalisation and social role valorisation through a series of legislation focused on community-based disability services (e.g. the Commonwealth’s Disability Services Act (1986), and the State of Victoria’s Intellectual Disabled Persons’ Services Act (1986)).

Each Act in this series of legislation emphasised a rights-based approach to the orientation and delivery of disability services, stressing the need to facilitate ‘normal’, community-based lives for people with disabilities. Each Act made community-based disability services responsible for empowering people with disabilities to make new contributions to society through tools like Individual Programme Plans. Each also indicated fundamental roles for the broader community to play in relation to supporting the lives of people with disabilities. In other words, each Act not only reflected the fundamental propositions of disability studies at the time, but also laid the groundwork necessary for integrating people with disabilities within the circuits of inclusion, where their individual potential and self-advancement could be managed and optimised alongside the rest of the community.

There was, however, a fundamental flaw in this process of deinstitutionalisation. As indicated above, this process was based on certain assumptions about integration and inclusion. It was assumed disability service providers were sufficiently funded to harness the skills of people with disabilities so they may manage their conduct and contribution to society in new ways. It was assumed the contributions of people with disabilities would align with what society considered meaningful. It was also assumed the community would be welcoming and supportive of people with disabilities’ transition into society, when people with disabilities had for so many years been locked away based on earlier understandings that institutionalisation is necessary and of benefit. None of these assumptions about the prospects of deinstitutionalisation were validated. Instead, what transpired for many people with disabilities is a process of ‘transinstitutionalisation’, or the unintended and undesired movement of these individuals from one institutional context to the next.

Mapping the new social terrain within which people with impairments were being disabled through transinstitutionalisation became the critical focus of disability scholarship for the next decade. Thus, Taylor et al. (1991), showed how deinstitutionalisation simply resulted in many people with disabilities being moved into group home environments. Other scholars traced the movement into nursing homes (see, for example, Dear and Wolch, 1987; Hudson, 1991). Some disability scholars even drew links between deinstitutionalisation and the growing number of people with disabilities in prisons. Indeed, a few critical disability scholars likened the process of deinstitutionalisation to Cohen’s (1985) notion of decarceration, with Oliver (1990) arguing deinstitutionalisation simply saw the boundaries of social control blurred, with non-traditional institutional settings like the prison taking on responsibility for monitoring the behaviour of people with disabilities.

In Victoria, disability scholars’ concerns about the flaws of deinstitutionalisation and their unintended effects on the lives of people with disabilities appear to have reached a critical point in the late 1990s, with the State Government commissioning a series of reviews into the laws and frameworks surrounding disability service provision. These reviews did more than examine the flaws of deinstitutionalisation however, they problematised deinstitutionalisation itself.

The circuits of exclusion and the metamorphosis of deinstitutionalisation

The first commissioned review resulted in the Victorian Auditor-General’s (2000) Report, Services for People with an Intellectual Disability (the Auditor-General’s Report). The Auditor-General’s Report reiterated and confirmed disability scholars’ three main concerns with deinstitutionalisation. First, it found disability service providers were insufficiently funded to provide appropriate levels of case management for people with disabilities living in the community. Second, it confirmed that tools like Individual Programme Plans did not fully harness or build the skills of peoples with disabilities. Finally, it indicated that for some people with disabilities, the issue of community integration was in fact a moot point, because some people with disabilities were subject to unclear levels of restraint and seclusion by service providers which precluded them from entering the community.

Drawing on these findings, the Auditor-General’s Report provided a series of recommendations for Victoria’s Government. It proposed the Government develop strategies to become more efficient in case management. It proposed disability service providers become more inclusive of clients and family members when developing Individual Programme Plans. Yet, when it came to the issue of failed community integration, the Auditor-General’s Report took an intriguing direction. It recommended the Government strengthen and clarify the legislation surrounding the use of restraint and seclusion for people with disabilities so as to protect their human rights. In other words, the problem this Report addressed was not failed community integration as such, but rather the lack of legislation in place to separate and exclude legitimately some people with disabilities from the community.

This subtly different construction of the problem was reiterated the following year in a second governmental review and report into the laws and frameworks surrounding disability service provision: the Report of the Review Panel Appointed to Consider the Operation of the Disability Services Statewide Forensic Service (more commonly referred to as the Vincent Report) (Department of Human Services, 2001). What is interesting about the Vincent Report was how it framed this newly constructed problem. Stronger, clearer legislation around people with disabilities’ restraint and removal from the community was required not simply because such actions limit people with disabilities’ human rights (as identified in the Auditor-General’s Report), but rather because some people with disabilities posed a risk of serious harm to both themselves and the community. For these people, ongoing, state controlled detainment was not only necessary, but must be ensured in the interest of community safety.

Accordingly, the recommendation made by the Vincent Report was for the Government to develop a transparent process for authorising people with disabilities’ detention in Victoria. In late 2001, the Victorian Law Reform Commission (VLRC) was charged with this task and given the following Terms of Reference:

review existing provisions for the compulsory treatment and care of persons with an intellectual disability who are at risk to themselves and the community; and

make recommendations on the development of an appropriate legislative framework for that compulsory treatment and care (Victorian Law Reform Commission, 2002).

These Terms of Reference legitimised the very subtle shift in problematisation that had taken shape across the Auditor-General and Vincent Reports. The Terms confirmed the problem requiring attention was the nature and operation of compulsory treatment and care of people with disabilities (not that largely unlegislated forms of compulsory treatment and care had begun to take shape in a time of deinstitutionalisation). Furthermore, the Terms confirmed this problem originated as a result of the risk some people with disabilities pose to themselves and the community (not from the failed attempts of the Government to integrate people with disabilities within society). In other words, the Terms confirmed that the management of people with disabilities had become a problem of insecurity. Accordingly, when the VLRC released its findings in the People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care (VLRC, 2003), what it outlined was a legal framework for the civil detention of people with intellectual disabilities who pose a significant risk of serious harm to the community.

What is interesting about the VLRC’s Report, however, is that this framework was not simply presented as something necessary for the protection of the community, but rather as a framework which balanced the rights of people with disabilities with those of the community. Specifically, it was heralded as a legal framework which balanced people with disabilities’ rights to freedom and liberty with the need to protect the broader community from the risk of harm that some people with disabilities pose (Victorian Law Reform Commission, 2003: 9). This legal framework came into effect through the Disability Act (2006), with its ‘rights-based approach’ to protecting people with disabilities and the community through segregation and containment: the STO regime.

Thus, what has been outlined in this section is not simply the story of how the symbiotic relationship between disability studies and disability services has provided the conditions for the STO regime to emerge, but rather how the STO regime can be understood as a descendent of the very subtle and incremental metamorphosis of deinstitutionalisation. A metamorphosis which has seen deinstitutionalisation transformed from being a rights-based solution to people with disabilities’ institutionalisation, to being a rights-based problem which places some members of the community at risk of harm from violent and dangerous offenders who are unable to manage their conduct in desired ways. A metamorphosis which has given birth to a shadow carceral state for people with disabilities, and the legally hybrid tools for their containment.

Thus, for a final time, it must be asked: how is this possible? How has this shadow carceral state taken shape in Victoria when its foundations for emergence are so clearly constructed and flawed?

Siloed scholarship and false boundaries of responsibility

The answer to this question is at least in part, ‘criminocentric dogmatism’ (Velloso, 2013), or more precisely, the dogmatic nature of any discipline which carves out limited areas of interest and calls into play false lines of division and responsibility.

As this article demonstrates, criminology, and in particular punishment and society scholars have the tools and logics necessary to recognise and interrogate the emergence of a shadow carceral state which enables a sub-population of offender to be captured, contained and managed when there is otherwise no legally legitimate grounds for such action. And yet we appear reluctant to do so. Instead, we appear far more comfortable deferring this role to those for whom the civil sphere is paramount: disability scholars, and their disability-centric dogmatism of human rights protections.

Indeed, it would be amiss to conclude this article without at least briefly noting that while the STO regime and other civil and administrative orders like it appear to have fallen beyond the purview of criminology, the STO regime has not been absent of scrutiny. In 2010, the Victorian Office of the Public Advocate (OPA) – an independent statutory body established by Victoria’s Government to protect and promote the interests, rights and dignity of people with disabilities – was commissioned to undertake a research project which explored the operation and outcomes of the STO regime. Perhaps unsurprisingly, what OPA chose to produce was a Report which tested the STO regime against a human rights framework. In doing so the Report subjected its analysis to the same process of magical legalism operating in STO hearings. That is to say, the Report provided conclusions about the extent to which the regime passed its test against the human rights framework, and balanced the rights of people with disabilities against those of the broader community. Yet it could not, and did not ask, how and why is it possible that such a regime exists in Victoria? How and why is it acceptable that some people with intellectual disabilities can be removed from the community, placed under detention and 24-hour surveillance and forced to endure ‘treatment’ such as chemical castration, based on past offence for which many have already served time? Indeed, by framing the problem with STOs in terms of how well the regime operates under human rights, and then proceeding to offer recommendations to make it work better, this Report implies that this regime is, to a certain extent, acceptable, necessary and of value.

Thus, what this article reveals is three things. How, through the metamorphosis of deinstitutionalisation and the resulting magical legalism of human rights protections, STOs have emerged within a shadow carceral state as a necessary, legitimate and unquestionable mechanism for ensuring the detainment of some people with disabilities. Second, how in practice, STOs have become concerningly effective measures for capturing offenders with disabilities post their release. But also, how the tightly woven constellation of conditions that support and sustain this problematic project of governance can be challenged and unravelled: criminological engagement.

Footnotes

Note

Claire Spivakovsky is a Lecturer in Criminology at Monash University, Australia. She is the author of Racialized Correctional Governance: The Mutual Constructions of Race and Criminal Justice (Ashgate, 2013). Her research focuses on the interconnected ways that civil and criminal justice institutions have been used to contain and control ‘difference’ in society, and the effect these institutional responses have on our understanding of ‘different’ populations over time.

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