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Steele, Linda --- "Disabling Forensic Mental Health Detention: The Carcerality of the Disabled Body" [2016] UTSLRS 31; (2016) Punishment & Society

Last Updated: 21 April 2017

Linda Steele, ‘Disabling Forensic Mental Health Detention: The Carcerality of the Disabled Body’ Punishment & Society (available online 24 November 2016; DOI: 10.1177/1462474516680204; forthcoming 2017 in special issue: ‘The Maelstrom of Punishment, Mental Illness, Intellectual Disability and Cognitive Impairment’)

Disabling Forensic Mental Health Detention: The Carcerality of the Disabled Body

Abstract

‘Disabling’ forensic detention involves challenging the self-evidence of the meaning of disability in forensic mental health law, and in turn illuminating the significance of this meaning to the possibility and permissibility of forensic detention and other interventions in the bodies of people with cognitive impairments and psychosocial disabilities (‘people with disability’). I apply this approach to an examination of a case study of one individual subjected to forensic detention: an Indigenous Australian woman with Fetal Alcohol Spectrum Disorder, Roseanne Fulton. By examining Fulton’s forensic detention, in the context of her earlier life circumstances and her subsequent journey through various ‘alternatives’ to this forensic detention I show the interrelationships of forensic detention with a range of legal options for punishing, regulating and intervening in disabled bodies and situate these interrelationships in a broader range of issues of violence, institutional failure, social disadvantage, settler colonialism and ableism. My central argument is that the ongoing subjection of Fulton to a range of forms of control across her life suggest that the possibility of forensic detention and other forms of punishment of people with disability is not attached to a particular material architectural space or a particular legal order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space. I propose that more directly it is the disabled body that is the space of punishment and the disabled body makes material architectural spaces punitive. A ‘reform’, indeed even an ‘abolition’, approach focused on material architectural spaces of disabled punishment will not interrupt the ongoing processes of control of criminalized people with disability if it does not also acknowledge and challenge the temporal and carnal logics underpinning the carcerality of the disabled body itself.

Keywords: disability, Indigenous, forensic mental health, critical disability studies, violence, indefinite detention

Introduction

There have been calls by critical disability studies scholars to ‘disable’ criminology (Dowse et al, 2009) and ‘disable’ incarceration (Ben Moshe, 2011). Such an approach which is evident in an emerging body of scholarship across critical criminology, critical disability studies and socio-legal disciplines that is premised on undermining the self-evidence of punishment of people with cognitive impairments and psychosocial disabilities (‘people with disability’) through challenging disability’s status as a natural, individual biomedical phenomena and disability’s associations with risk and protection, as well as making apparent the social and political contingency of disability and the role of law and institutions (including the criminal justice system) in the disablement, marginalization and criminalization of people with disability. These scholars caution that seemingly ‘humane’ and ‘therapeutic’ alternatives to incarceration might affirm medicalized understandings of disability and further entrench people with disability in new, less visible carceral spaces (see, e.g., Ben Moshe, 2011; Ben-Moshe et al, 2014; Dowse forthcoming; Dowse et al, 2009; Reiter and Blair, 2015; Seear and Spivakovsky, forthcoming; Spivakovsky 2014a, 2014b, Steele forthcoming; Steele et al, 2016; Steele and Thomas 2014).

Building on this emerging scholarship and providing further impetus to a broader engagement by punishment and society scholars with disability, this article ‘disables’ one form of punishment: detention in the forensic mental health system (‘forensic detention’) of people with disability who are either unable to be tried for a criminal offence (by reason of a finding of unfit to plead) or found not guilty of a criminal offences by reason of mental illness. Historically, punishment in the forensic mental health system involved indefinite periods of detention which were subject to ‘Her Majesty’s pleasure’ (i.e. release was at the discretion of the executive with no transparent, judicial procedure) and detention was in large scale mental health institutions or (particularly for people with cognitive impairments) in prisons. However, in recent decades, notably post-deinstitutionalization, many jurisdictions have ‘reformed’ their laws on forensic detention: improving judicial oversight of release and shifting from indefinite to definite periods of detention. Punishment in the forensic mental health system has extended to include a variety of community-based orders to reside in disability-supported accommodation, engage with disability support services and/or receive mental health treatment. Yet more recently, following the coming into force of the United Nations Convention on the Rights of Persons with Disabilities in 2008, the forensic mental health system has been framed as discriminatory in applying only to people with disability and as constituting a breach of multiple human rights including freedom from arbitrary deprivations of liberty and freedom from torture (see, e.g., Committee on the Rights of Persons with Disabilities, 2013: 4[29]; see also Committee on the Rights of Persons with Disabilities, 2015: 6[21]). The status of forensic detention as ‘punishment’, notably in its ‘reformed’ community manifestations has not been the subject of sustained engagement by punishment and society scholars (see, however, Spivakovsky, 2014a; 2014b). Yet, by turning to ‘disable’ forensic detention, punishment and society scholarship can make a significant contribution to this issue.

I begin this article with an overview of my approach to ‘disabling’ forensic detention which is situated at the intersections of disability and law and which draws on critical disability studies (‘CDS’) scholarship. I then apply this approach to an examination of a case study of one individual subjected to forensic detention: an Indigenous Australian woman with Fetal Alcohol Spectrum Disorder (‘FASD’), Roseanne Fulton. Fulton’s criminal justice circumstances were widely reported in the Australian media during 2014 and 2015 and in 2016 her broader life circumstances were elaborated on in an Aboriginal Disability Justice Campaign submission to the Australia Senate Standing Committee on Community Affairs inquiry on Indefinite Detention (Aboriginal Disability Justice Campaign, 2016). I draw on this publicly available commentary. While my examination begins with Fulton’s indefinite forensic detention, I then situate this detention in the context of her earlier life circumstances and her subsequent journey through various ‘alternatives’ to this forensic detention. In doing so I show the interrelationships of forensic detention with a range of legal options for punishing, regulating and intervening in disabled bodies and situate these interrelationships in a broader range of issues of violence, institutional failure, social disadvantage, settler colonialism and ableism. My central argument is that the ongoing subjection of Fulton to a range of forms of control across her life suggest that the possibility of forensic detention and other forms of punishment of people with disability is not attached to a particular material architectural space or a particular legal order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space. Tempering existing critiques of the continuity of confinement of people with disability across spaces (Harcourt, 2006), I propose that more directly it is the disabled body that is the space of punishment and the disabled body makes material architectural spaces punitive. A ‘reform’, indeed even an ‘abolition’, approach focused on material architectural spaces of disabled punishment will not interrupt the ongoing processes of control of criminalized people with disability if it does not also acknowledge and challenge the temporal and carnal logics underpinning the carcerality of the disabled body itself.

My analysis and the larger emerging body of critical scholarship on ‘disabling’ punishment pose significant promise and provocation to scholars in the discipline of punishment and society. Some punishment and society scholars are beginning to examine detention of people with disability pursuant to civil and mental health laws as part of a growing critique of unique forms of detention (such as immigration detention and preventive detention) which are associated with a greater use and proliferation of civil and administrative forms of punishment and a shift to a prospective-oriented ‘risk’ logic (see generally Aas and Bosworth, 2013; Ashworth and Zedner, 2014; Ashworth et al, 2013; Reiter and Koenig, 2015; on civil and forensic mental health laws see Ashworth and Zedner 2014). However, aside from a few notable exceptions (see, e.g., Murray and Holmes, 2015; Reiter and Blair, 2015; Spivakovsky, 2014a, 2014b) the examination of civil and forensic mental health detention in this context lacks a critical approach to disability per se: questions about the very existence of disability-specific detention are not routinely considered in punishment and society scholarship, and the differential treatment of this group on the basis of disability appears as largely self-evident. As such, this scholarship falls short of ‘disabling’ punishment. I will demonstrate through my examination of Fulton’s case study three points that are particularly relevant to punishment and society scholarship’s critique of civil and administrative forms of punishment: (a) the important interrelationships across marginalized individuals’ life courses between different forms of civil and administrative punishment, and between these forms of punishment and ‘mainstream’ criminal justice punishment, (b) the splitting of carceral ‘space’ into material architectural, legal and carnal space, and (c) the carceral possibilities of disability and the masking of these possibilities as protective, therapeutic and benevolent.

On a broader scale, it has been observed that there is a failure of criminology scholars and prison abolitionists to engage with disability (Dowse et al, 2009: 38-39; Carey et al, 2014: x). I show that ‘disabling’ detention is an important resource for all punishment and society scholars. For example, this approach opens punishment and society inquiry to analysis of new institutional and material spaces (psychiatric hospitals, bodies, disability support services) and new areas of law (guardianship law, mental health law). This approach also provides a basis on which to critique interventions (support, protection, therapy, diagnosis, and care) and discourses (pathology, abnormality, incapacity, contagion and vulnerability) which are often applicable to punitive micro-practices within prison which are capable of being enacted on all individuals not only people with disability (e.g. through segregation, forced feeding or medical treatment, rehabilitation programs, classification etc., see, e.g., Hannah-Moffat and Klassen, 2015). Last, the legal ordering of punishment along lines of in/capacity also means that ‘disabling’ punishment of the ‘abnormal’ mentally incapable hints at new critical insights into punishment of the ‘normal’ mentally capable and hence has implications for the core of punishment and society scholarship (see similarly in the context of migration penality Aas, 2014).

‘Disabling’ forensic detention

An approach of ‘disabling’ forensic detention involves using analytical tools from CDS. CDS draws upon a range of disciplines and theoretical standpoints to analyze the social, political and cultural dimensions of disability as a form of difference. CDS critiques medical approaches to disability which are focused on disability as an individual, biomedical deficit. Instead CDS analytically approaches disability as a socially produced abnormality which is in a mutually constitutive relationship to ‘normality’. CDS focuses on illuminating and contesting the material, cultural and institutional ways through which disability as abnormality is produced and illuminating the co-constitutive relationship between abnormality and normality (see, generally, Campbell, 2009; Goodley, 2014). Part of this approach involves questioning the representational or discursive effects of the medicalization of disability, including pathologizing individuals’ behaviors and life circumstances and viewing people with disability as inherently and permanently at risk to themselves and/or others (Dowse, forthcoming; Spivakovsky, 2014a; Spivakovsky and Seear, forthcoming). Another part of this approach relates to how representations of disability as abnormality results in material violence on the actual bodies of individuals with disability and how individuals marginalized on other bases such as race, gender or class disproportionately become subjected to disablement through acts of violence (Erevelles, 2011: 142-143; see also Erevelles, 2011: 104–120).

CDS scholars have typically focused on how disability is acted upon in order to normalize individuals so as to purportedly enhance life and bodily capacities (albeit directed towards predetermined ends) and as such is a biopolitical category (Tremain, 2005). It is within this vein that ‘supportive’ and ‘therapeutic’ interventions have been critiqued (see, e.g., Drinkwater, 2005; Levinson, 2010; Yates, 2005). Yet, more recent scholarship is beginning to engage more with the violence of biopolitics, the ‘necropolitics’ (Mbembe, 2003: 27) of disability, and explore how confinement and other lawful practices of non-consensual interventions and regulation of people with disability involve their greater calculated exposure to violence and death (see, e.g., Berghs, 2015; Wadiwel, forthcoming). Across these approaches there is an interrogation of the way that techniques for regulating disability work through the body (notably through therapeutic interventions) and discourses of care, humanitarianism and benevolence are mobilized to mask their regulative, punitive and violent effects on people with disability. CDS scholars have also drawn attention to the contingency of the representational, material and legal status of disability and the emergence of impairment itself to broader historical and geopolitical dimensions of power and inequality related to such dynamics as settler colonialism, neoliberalism and globalization and to the intersection of disability with other dimensions of politicized identity, such as gender and Indigeneity (Erevelles, 2011; Meekosha, 2006). As such, ‘disabling’ forensic detention is attentive to intersectionality and multiple power hierarchies (Chapman et al, 2015).

Following CDS socio-legal scholarship that highlights the role of law in producing disabled subjects of permissible regulation and violence (Campbell, 2009; Shildrick, 2009; Steele, 2014a; Wadiwel, forthcoming), ‘disabling’ forensic detention is attentive to the legal dimensions of forensic detention, including how disability is constructed in law and how law orders the possibilities for confinement of, intervention in and violence against disabled bodies, as well as how the jurisdictional spaces in which these practices are located can mask their punitive and violent effects. This is particularly important because the disability-specificity of forensic detention to people with disability is by reason of the differential jurisdictional and legislative structuring of punishment, as opposed to the differential judicial application of generic sentencing legislation applicable to all regardless of disability or differential administration of conventional criminal punishment.

Together, these analytical tools from CDS provide an approach which can undermine the self-evidence of forensic detention and in doing so contribute to a more enriched engagement by punishment and society scholars with disability and, in turn, with punishment itself.

Fulton’s indefinite forensic detention: The carceral possibilities of disability

On 12 March 2014 the Australian Broadcasting Commission current affairs program Lateline broke the exclusive story of the indefinite detention of Roseanne Fulton, an Indigenous Australian woman with FASD (Stewart, 2014a). At 23, living in the Australian state of Western Australia, Fulton was charged with some minor driving charges. Fulton was found unfit to be tried of the offences and was subsequently detained under Western Australia’s forensic mental health legislation. Fulton was considered unsuitable for community release and the only ‘suitable’ place of detention in the Western Australian jurisdiction was prison because there were no other places of detention specific to the needs of people with intellectual disability (Stewart, 2014b). Fulton was unable to be moved to the Northern Territory jurisdiction because there were no female-specific facilities or services: a secure facility for people with intellectual disability and challenging behavior, built next to the Alice Springs prison was unsuitable because other detainees were male and there were safety risks (Stewart, 2014a, 2014b; see also Safi, 2014). Thus, at the time when the Lateline story broke, Fulton had been indefinitely detained for the past 18 months in a Western Australian prison in Kalgoorlie hundreds of kilometers from her home and family in Alice Springs, Northern Territory (Morton, 2014). Fulton’s story only became public after a decision made by her joint public guardian (in consultation with Fulton) to disclose her identity and circumstances after a prolonged period of trying to advocate for her release from indefinite detention and access to disability support services (Aboriginal Disability Advocacy Campaign 2016, 4).

Fulton’s forensic detention illustrates that the medico-legal designation of disability via the legal framework of unfitness provides additional possibilities for punishment and confinement of people with disability. The legal determination that Fulton was considered unfit to plead to minor criminal charges hinged on her mental incapacity by reason of her diagnosis of FASD. In order to be subject to remand or sentenced incarceration, an individual must be awaiting trial of criminal charges or have been convicted and sentenced of those charges. It is contrary to the rule of law for an individual to be otherwise subjected to criminal incarceration, and for an individual who does not have the capacity to answer these charges to be subjected to such punishment: exclusion from the ‘normal’ jurisdictional space of sentenced punishment is vital to the legitimacy of incarceration of the mentally capable ‘normal’ (Steele 2014b). Yet, being found unfit does not benevolently free a disabled individual from incarceration, but rather moves that individual into an alternative legal space of incarceration: the forensic mental health system. In this system the risk posed by the individual is the rationale for detention and it is no longer the criminal offence (however minor as in the case of Fulton) and the associated ‘event’ of past behavior that is the rationale for punishment but instead the individual him or herself and more specifically their disability and the presumed ongoing pattern of (risky) behavior (Loughnan, 2017; Steele, 2014b). In the forensic mental health system, disability is constructed not only as pathological and risky but also has important temporal (fixed, ongoing (Kafer, 2013)) and carnal (embedded in the body) qualities that trigger both the need for confinement and the unquestionable legality of this punishment. This particular relationship between disability, temporality, carnality and legality enables law to simultaneously recuperate Fulton back into a material space of lawful punishment as well as re-constitute sentenced incarceration of the mentally capable as ‘fair’ and ‘humane’ by very reason of her externality to this (Steele, 2014b) and as such shows how the ‘abnormality’ of disability has important relationships to incarceration of the ‘normal’ (here there might be interesting intersections with ‘abnormal justice’ in the migration context worthy of further exploration, see Aas, 2014).

In being both ‘protected’ from sentenced punishment and subjected to a more far-reaching practice of punishment, law’s complicity in Fulton’s incarceration is masked by its self-representation as protective and good (Steele, 2014a). The medical and bodily nature of the disability renders this detention as the ‘natural’ and self-evident consequence of an attribute embedded within the individual and ultimately the individual’s fault, rather than a political act of the differential treatment of people with disability amounting to state-sanctioned, systemic discrimination and legal violence against people with disability (for an elaboration on this argument in the context of sterilization see Steele, 2016). Moreover, the material impacts of this differential legal treatment – e.g. deprivation of liberty, physical segregation and isolation, and physical or chemical restraint, as well as the related trauma, distress, and disability – are obscured because of the self-evidence of these material interventions associated with the ‘therapeutic’ approach to diagnosed disability more broadly (Wadiwel, forthcoming).

Moreover, this additional legal option can ultimately enable incarceration in the very material space (prison) which a disabled individual is ‘justly’ positioned as being beyond through the finding of unfitness. Fulton was moved into an alternative legal (in the sense of legislative and jurisdictional) ‘space’ – the forensic mental health system – she ultimately ended up in the same material architectural space of the prison. Fulton’s incarceration was located at the intersection of two dynamics: (a) her riskiness and unsuitability for community placement, and (b) her vulnerability and unsuitability for placement in male disability confinement. Running across both of these is a discourse of economic efficiency about lack of resources, services and spaces such that perversely the incarceration is a necessary and ‘humane’ confinement of women with disability, showing how neoliberalism excuses inequity on the basis of economic efficiency (see similar point made in Aboriginal Disability Justice Campaign, 2016: 1).

Furthermore, there is a need to forensic detention of Fulton on the basis of her disability in a longer continuum settler colonial practices of confinement, segregation, intervention and violence of Indigenous Australians, and the various ways in which being categorized as disabled means medical discourses of disability (notably their temporal and carnal dimensions) can individualize and depoliticize these settler colonial practices (Hollinsworth, 2013; Soldatic, 2015; in a Canadian context see Chapman, 2014; Razack, 2015). This is particularly so in relation to Fulton who was diagnosed with FASD: FASD has been critiqued as being a settler colonial, racialized diagnosis that individualizes and pathologizes intergenerational and systemic dispossession, disadvantage and violence experienced by Indigenous populations and legitimizes interventions in Indigenous bodies and populations by constructing Indigenous peoples as failed and dying population (Connell, 2011; Hunting and Browne, 2012; Salmon, 2007; Tait, 2001). Moreover, it is vital to think of Fulton not as the already is and always was disabled, but to be mindful of processes of disablement in relation to Fulton and other disabled subjects of forensic detention. This is not about identifying the etymology or biomedical cause of an individual’s disability (here purportedly maternal alcohol consumption) but reflecting on how structural factors and geopolitical, economic, political and legal dynamics result in very material, disabling impacts on bodies and create possibilities for intergenerational transfer of disablement and how individuals marginalized on other bases such as race, gender or class disproportionately become subjected to disablement through acts of violence (Erevelles, 2011; on FASD see Connell, 2011). For punishment and society scholars, this gestures towards the importance of analyzing the representational and material dimensions of disability in positioning Indigenous Australians (and other marginalized populations) for greater exposure to legal punishment and violence.

Fulton’s journey into forensic detention: Negating and legitimizing settler colonialism and ableism

Fulton was born in Alice Springs ‘to parents known to be chronic alcoholic fringe dwellers’ (Aboriginal Disability Justice Campaign, 2016). Her life leading up to her indefinite detention was characterized by violence, disadvantage and institutional failure:

During her infancy she was moved around various remote communities in the tristate region of Central Australia. Her existence was marked by a cycle of rescue from, and return to, life-threatening neglect, while under the care of child welfare authorities. Despite the odds she survived, only to face sexual exploitation from age 5. Rejected, abused and exploited throughout her childhood, she was abandoned to a homeless ‘riverbed’ life-style in Alice Springs as a young adult.

In late 2008 the Adult Guardianship Court found her to be under an intellectual disability, defined as the inability to make informed decisions and reasonable judgements relevant to daily living. She was placed under the guardianship of the NT Public Guardian (PG) who found her to be homeless, malnourished and living an impoverished existence, seeking inclusion in the riverbed drinking camps by offering her Centrelink income, alcohol or sexual usage. She was routinely driven off with violence when of no further value. Her assigned PG delegate referred her to NT Health Disability Services as needing full-time residential support. (Aboriginal Disability Advocacy Campaign, 2016: 1)
In the years leading up to her indefinite detention in Kalgoorlie, Fulton cycled in and out of the criminal justice system for minor property damage and assault charges, while her PG’s requests for disability support services went unanswered (Aboriginal Disability Advocacy Campaign, 2016: 2-3). Fulton was then moved by Northern Territory Department of Health to a remote Western Australian outstation pending the completion of a secure disability facility in the Northern Territory, particularly by reason of a successful stay organized by her PG in order to recover from burn injuries (Aboriginal Disability Advocacy Campaign, 2016: 3). Unfortunately, these circumstances then culminated in the offence the basis of Fulton’s indefinite detention:

Several months later she was either enticed or abducted from the outstation by a gang of youths, to be prostituted in the larger centers. She ended up taking and crashing a car, was found unfit to plead and placed under indefinite prison-based supervision in Kalgoorlie WA’ (Aboriginal Disability Advocacy Campaign, 2016: 3).

The longer history preceding Fulton’s indefinite detention not only complicates the individualised, fixed and medicalised medico-legal construction of disability that grounds forensic detention, but also starts to show continuities between forensic detention and forms of violence and control (unlawful interpersonal violence, lawful coercive protective movement and detention, intergenerational settler colonial violence) that the disabled body is subject to across different times and spaces, and in turn hints at how punishment is embedded within and travels with the disabled body. Recent empirical led by Eileen Baldry and Leanne Dowse has illuminated the significance of lifelong dimensions of marginalization, institutional failure, victimization and lack of appropriate supports to the ongoing cycling of people with disability in and out of the criminal justice system (see, e.g., Baldry et al, 2015; Baldry et al, 2012), and these are particularly complex and exacerbated in Indigenous women with disability in the criminal justice system (Baldry et al, 2015; on disablement and colonization in Australia generally see Hollinsworth, 2013; Soldatic, 2015). Fulton’s victimisation by others positioned her as a legitimate subject of ‘protective’ coercion through civil guardianship laws which were enlivened on the basis of her disability. While seemingly well-meaning this ultimately contributed along with other institutional failures to her criminal charges and forensic detention.

‘Send Rosie Anne home’: Confining the ‘problem’

In the days and weeks following the ABC Lateline story on Fulton, media coverage tracked a disability rights advocacy campaign lead by her legal guardian and involving the Aboriginal Disability Justice Campaign and the Australian Human Rights Commission. In the words of Mick Gooda and Graeme Innes, of the Australian Human Rights Commission, this campaign aimed to ‘send Rosie Anne home’ – transferring Fulton to her home jurisdiction to community supported disability housing. An online petition on Change.org which was opened by Fulton’s advocate and legal guardian soon after the story broke (Safi, 2014) received a high number of signatures: quickly totaling around 120,000 signatures by the time the petition closed (Australian Broadcasting Commission 2014b). The petition was tabled in the Federal Senate (Stewart, 2014a) in the course of Australian Greens Party senator Rachel Siewert introducing a Senate motion calling on the Federal Government to negotiate a transfer of Fulton to Alice Springs to be close to her family. In the course of passing the motion, the Federal Indigenous Affairs Minister, Nigel Scullion, revealed he had written to the Northern Territory and Western Australian Attorneys General and the Northern Territory Health Minister concerning the matter (Jabour, 2014).

The representation of policy ‘problems’ are not objective and natural but are subjectively shaped in ways that then constitute as natural and self-evident particular (punitive) solutions and silence other ways of knowing and acting (Spivakovsky and Seear, forthcoming). In the public recognition that an injustice was done to Fulton through her forensic detention, the ‘problem’ included a much larger set of issues related to Indigenous Australians with disability in the criminal justice system but its epicenter was the indefinite period of detention in prison. As such the ‘solution’ was a definite period of disability-appropriate punishment. The existence of the forensic mental health legislative system itself and, in turn, the medico-legal understanding of disability on which it was based remained largely unproblematized, and the legality and necessity of incarceration itself and the legal frameworks that systemically incarcerate the majority of Indigenous Australians with disability (because only a minority are punished under forensic mental health legislation) were confirmed. Moreover, Fulton’s forensic detention was largely portrayed as a problem of a lack of disability appropriate services and hence a problem of administration of forensic mental health punishment rather than a problem of forensic mental health law itself thus shifting attention away from law’s complicity in her detention. Furthermore, while the public discussion of Fulton’s forensic detention highlighted the heightened vulnerability of Indigenous Australians with disability to criminalization and incarceration, this did not register as a deep-seated problem of settler-colonialism perhaps because, Chapman has noted in the context of First Nations in Canada,: (Chapman, 2014: 40; see also Carey et al, 2014, x; Razack, 2015).

While it might be so that some forms of disability-specific detention are better than forensic detention (particularly indefinite forensic detention in prison), there is the risk that this hierarchy of ideal (disability-specific) punishment ‘takes for granted’ the existence of punishment per se and directs attention instead to which form of punishment should apply. My analysis here is supported by Foucault (2009: 13) who stated that ‘[t]he question of an alternative to prison ... is a false or at least a loaded question since it in effect asks people to take for granted the existence of a penal regime that grants to particular individuals the right to punish people for particular things, and to consequently think about which system of punishment should operate: imprisonment or some other form of punishment’. Thus, one effect of the focus on moving Fulton to a more reformed of forensic detention option is that it obscures a larger political question of whether the disability-specific system of punishment provided by the forensic mental health system should operate at all (and, in turn, as per Foucault, an even larger question about incarceration and punishment generally). This illuminates in relation to disability, the observation in the abolitionist literature on tensions of penal reform: where the ongoing necessity of coercion, confinement and intervention is disguised as well-meaning responsiveness to needs of particular populations (see in the context of disability McRuer, 2014: 277; Ben Moshe, 2014: 257, 268).

‘Building capacity’ and ‘reduc[ing] risk’: Extending Fulton’s control in ‘freedom’

Eventually, 3 months after her story broke in late 2014, Fulton was placed by Northern Territory Health Department in accommodation in Alice Springs with two female Indigenous support workers providing 24 hour a day care (Stewart, 2014c). The Northern Territory Health Minister, Robyn Lambley, said ‘This support model focuses on building Fulton’s capacity to live in the community of Alice Springs, by enhancing her ability to set positive goals, her wellbeing and safety. This approach aims to reduce the risk of Fulton engaging in anti-social and offending behavior, by providing a supportive and nurturing environment that builds her skills and independence.’ (Stewart, 2014c)

An examination of Fulton’s subsequent circumstances in the Northern Territory illuminates the continuum of control that people with disability are subjected to and the framing of the community and state as benevolent and rescuing through this control. The Health Minister’s framing of Fulton’s accommodation reiterates the medico-legal approach to disability that reinforces the need for the disabled body to be confined and regulated. The focus was on Fulton’s pathological behavior (Dowse, forthcoming), or rather the risk of such behavior – a risk that was not quantified or evidenced but simply assumed. The coupling of disability with risk and community/freedom reflects Rose’s scholarship on risk logics and new territory of the deinstitutionalized community (Rose, 1998). Yet what is also notable about the Health Minister’s comment is the juxtapositioning of Fulton’s risky behavior (portrayed as dangerous, negative, destructive) and the accommodation environment and service workers (portrayed as safe, positive and constructive) – this positions the services and the state as rescuing Fulton from herself, and in a way that not only protects her but develops her capacities and future prospects (Spivakovsky and Seear, forthcoming). Yet the way in which this was framed hides how disability is constructed and used by the state as a mechanism of control of historically vulnerable groups such as Indigenous women. The Health Minister’s comments demonstrate the self-evidence of a triad of care, protection and control which underpins the legislative framework of forensic detention (for a discussion in the civil law context see Spivakovsky, 2014a). This triad rests on a medical construction of disability that views disability as an inherently dangerous condition embedded in the individual and only capable of being managed through therapeutic intervention or physical containment. In interrogating this triad, it is important to consider how discourses related to other dimensions of identity circulate in this triadic rationale. For example the nuances of paternalism specifically in relation to colonial violence against Indigenous people with disability or the nuances of patriarchy in relation to how Fulton’s vulnerability to sexual violence when homeless or to violence in a male prison trigger a more punitive response against her.

Furthermore, because Fulton was in a different jurisdiction (Northern Territory instead of Western Australian) she was no longer under the jurisdiction of the Western Australian forensic mental health law. Yet, while ‘free’ of the control of forensic mental health legal orders, this did not mean she was free of any control – she remained under control through the guardianship order that attached to her body by reason of her legal incapacity and travelled with her across jurisdictions, beyond the walls of forensic detention and into the ‘free’ and seemingly non-carceral space of community, disability-supported housing. She was also controlled by the supervision of the disability support workers. Fulton’s movement into supervised accommodation signals the continuum of control people with disability are subjected to beyond formal material spaces (and legal orders) of incarceration. Chapman, Carey and Ben-Moshe refer to this as an ‘institutional archipelago’ which consists of ‘diverse services and spaces that all trace back to undifferentiated confinement and its ongoing reform – in which penalty is no more or less central than medical care or the right to education.’ (2014: 14) and the way in which ‘community inclusion is continuous with longstanding practices and rationalizations of social control.’ (Chapman et al, 2014: 12). Arguably, the self-evidence of the ongoing surveillance and management of people with disability generally across spaces signals that the control is embedded in their body and very self (Steele, 2014b) thus suggesting that criminalized people with disability as a group are paradigmatic of Foucault’s argument of the policed subject (Foucault, 1979).

Fulton goes back in: The insidious links at the legal borders of confinement

Within days of being placed in the Alice Springs accommodation Fulton was charged with three counts of assaulting officers after she allegedly left her accommodation and had an altercation with house staff and police. Fulton was granted bail in relation to these incidents but then was arrested a second time a week later, this time for breaching her bail conditions not to drink alcohol or breach a curfew. Fulton did not apply for bail and was held on remand (Australian Broadcasting Commission, 2014a; 2014b). As of 29 April 2016, her advocate reported that ‘74% of the 22 months since her return to the NT has been under conviction for offences. 50% of this time has been spent in prison, (excluding time in police protective custody). At other times, her whereabouts were often unknown’ (Aboriginal Disability Advocacy Campaign, 2016: 5). Moreover, her ‘community support’ soon deteriorated:

In early 2015, she had to be removed from the Public Housing property leased by Health due to alcohol-related behaviors. This was followed by a series of ad-hoc tourist accommodation arrangements. She is now in a small flat in an industrial area with her support cut to 3 hours per day, much of which is spent trying to locate her.

Roseanne’s prospects for renewed NT support are next to non-existent, especially in the context of Health’s current moves to divest itself of responsibility for other cases forced from prison into its domain. The current focus is the new Darwin prison and its high needs forensic facility.

There is little doubt the remaining support for Roseanne will soon dissipate in favour of imprisonment. She is now seen as a recidivist offender, having, (predictably) been found fit to plead in the NT. (Aboriginal Disability Justice Campaign, 2016: 5)

Fulton’s subsequent cycling in and out of prison after her apparent rescue by the state from forensic detention in prison shows that people with disability are subject to ongoing punishment. The movements of Fulton between civil and administrative forms of detention, and between these and criminal detention shows the range of legal mechanisms for controlling criminalized people with disability. Moreover, in turning to the ‘embodied’ spatio-temporality of Fulton’s punishment and regulation it is evident that these different forms of control are not only available as alternative options, but also are interconnected rather than distinct.

Fulton’s subsequent cycling in and out of prison also shows the limits of a pure legal-temporality of ‘indefinite’ forensic detention (defined as the uncertainty and unfixity of one isolated legal period of detention). My analysis shows there is a further temporal dimension of ‘indefinite’ detention: the ongoing, persistent and endless process of cycling in and out of detention across different jurisdictional, geographical, institutional and temporal forms of detention: an indefinite process of detention. Tracking Fulton’s movement across a variety of forms of incarceration and intervention across her life illuminates that the temporality of ‘indefinite’ detention is best understood when the site of the temporality-carceral nexus is the disabled body rather than the legal order. Remaining critically and politically wedded to legal-temporality can result in a depleted sense of carceral injustice as limited by rather than challenging conventional understandings of legality of detention.

Fulton’s story also shows the problematic status of disability services and the ‘community’. The ‘community’ is not a law-free space – when inhabited by someone such as Fulton her mere presence shapes that space into a punitive space as shown by the supervisory role disability service workers played in her ‘community’ setting. Moreover, legal powers of coercion that structure individuals living in the ‘community’ not only provide added stress that can prompt offending, but also provide new possibilities for ongoing contact and surveillance by police, eg reporting bail breaches, reporting offending during service contact (including by reason of overarching legal frameworks of workplace safety and civil liability that might structure risk management and organisational governance in this space). ‘Disabling’ forensic detention resists privileging a material architectural notion of spatiality that obscures how punishment functions in less architecturally physically restrictive forms beyond prison. While in the context of disability, the space of the community has traditionally been juxtaposed to that of the institution, with deinstitutionalization being framed as the positive shift of individuals out of the walls into freedom of the community, my analysis illuminates important continuities in these spaces because of the underlying ideas about disability which inform punishment and its reform to more ‘humane’ regulation specific to people with disability (such as support or medical-based interventions in bodies). The disabled body itself is produced as necessitating and legally inviting regulation (e.g. through guardianship orders) the movements across space of this body makes space punitive – here a public housing dwelling in the community capable of habitation by other members of the public which is free of any legal orders and any inherent carcerality.

Conclusion: From ‘Disabling’ Forensic Detention to ‘Disabling’ (In)Justice?

This article has ‘disabled’ forensic detention by tracking Fulton’s movements in and ‘out’ of forensic detention through distinct periods of confinement, as well as to surveillance, control and intervention in the community notably through guardianship orders and supervised accommodation. Through this case study I have illuminated a continuous control dispersed across spaces and mediated by different institutions as ‘care’, ‘punishment’ and ‘protection’ and, ultimately, have shown that on a larger scale criminalized people with disability are exposed to an ongoing continuum of practices of detention, intervention and surveillance across material and legal spaces because the possibility for control rests in the carceral space of their body by reason of medico-legal designation as disabled.

Critical criminologists and critical disability studies scholars have argued that following de-institutionalization there has been the ‘trans’-institutionalization of people with disability with a continuity and fluidity of institutional spaces. My analysis of Fulton’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 such that the designation of disability to an individual provides the heightened, indeed hyper, possibility for confinement, intervention and regulation of that disabled body wherever that individual might be, and that this can exacerbate, build upon and mask the confinement and violence of settler colonialism against Indigenous Australians with disability. My analysis nuances the netwidening critique of disability ‘alternatives’ to incarceration (Ben-Moshe, 2014: 268; on netwidening generally, see Cohen, 1985) by suggesting that it is not so much that the ‘net’ is enlarged with the advent of new material architectural spaces of control, but rather that disabled bodies make space punitive by stretching the net as they move through space because of the control that attaches to their bodies both by reason of legal orders (e.g. through guardianship and civil mental health orders; on the latter see Fabris, 2011; Fabris and Aubrecht, 2014) and because of the biopolitical regimes of diagnosis and ‘therapeutic’ intervention pertaining to disability generally. This suggests that people with disability who are in the criminal justice system might be paradigmatic subjects of Foucauldian discipline (Foucault, 1979). Moreover, the fact that the control of Fulton manifested in different material and institutional forms and was situated in different rationalities but remained consistent and pervasive in her life gestures towards Loic Wacquant’s tracing of the continuities of control of African American’s across political shifts (Wacquant, 2010; see also the discussion the context of the ‘school to prison pipeline’ in Erevelles, 2014; Watts and Erevelles, 2004) and suggests that changing political, social and legal circumstances of criminalized people with disability do little to disrupt the processes of control where the underlying temporal and carnal rationalizations of the disabled body endure.^[1]

I posit here that this is matters not only for the ongoing control of criminalised people with disability, but also for our ability to read this control as an injustice. Forensic detention and its material effects might not be perceived as harms or injustices because not only are disabled bodies viewed as less worthy of sympathy (Patel, 2014), but specifically there is the additional affective dimension of the fear associated with the ‘danger’ of people with disability. The focus on judging forensic detention against liberal notions of legality locates detention per se beyond legal accountability (Veitch, 2007) in the double sense of being lawful and ‘good’ (see similarly Steele, 2014a).

Chapman, Carey and Ben-Moshe question the need to be mindful of the ‘real people who lived and died confined, or with the threat of confinement shaping the possibilities of their lives’ as well as asking ‘how can we live in a way that is also accountable ... to those “not yet born”? ... This future “yet to come” ... is a looming presence that has to be lived with, that has to be contended with, today.’ (2014, 18). Rather than focusing on individual service or health inequities or liberal rule of law arbitrariness as the key injustice we need much more enlivened understandings of ‘justice’ that are also ‘disabled’ – that is, that recognize the historical, material, representational, legal and geopolitical dimensions of the injustices to people with disability through forensic detention and other forms of control. Central to this is contestation of the temporal, carnal and, ultimately, carceral logics underpinning disability because, as Ben-Moshe states, ‘resisting incarceration is not as much about abolishing carceral spaces, as it is about demolishing the ideology that necessitates the processes of incarceration and segregation. ... The aspiration is to fundamentally change the way we respond to difference or harm, the way normalcy is defined, the ways resources are distributed and accessed, and the ways we respond to each other.’ (Ben-Moshe, 2014, 269). Until we challenge the carcerality of the disabled body, we must all struggle with the impossible challenge of being accountable for the ongoing injustices wrought by the incarceration, violence and death of criminalised people with disability.

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^[1] I am indebted to Dinesh Wadiwel for these suggestions.