Debra Parkes*
Reading Decarcerating Disability: Deinstitutionalization and Prison Abolition by Liat-Ben-Moshe and Disability, Criminal Justice and Law: Reconsidering Court Diversion by Linda Steele rocked my world, in the very best way. They pushed me to think in new ways about my research, teaching, and activism and are must-reads for those of us working for abolition in, through, and against law.
I came to prison
abolitionism through feminism. I have looked at the massive expansion of
women’s imprisonment in Canada in recent decades and the way that carceral and
colonial logics drive the mass incarceration of Indigenous people, and examined
the harms of so-called “gender-responsive” reform efforts (Parkes 2016). My
research and teaching examine the possibilities, but also very significantly
the limitations, of prisoner rights litigation and other rights-based or legal
strategies as part of an abolitionist vision (Parkes 2017). Decarcerating Disability: Deinstitutionalization and Prison Abolition
(Ben-Moshe 2020) and Disability, Criminal
Justice & Law: Reconsidering Court Diversion (Steele 2020), both of
which are deeply feminist, abolitionist and rooted in disability justice and
crip theory and activism, challenge me to expand these critiques and
pedagogies.
Liat
Ben-Moshe’s Decarcerating Disability:
Deinstitutionalization and Prison
Abolition takes a deep dive into
deinstitutionalization (particularly in the American context in the latter half
of the 20th century) and makes connections between
deinstitutionalization in the disability context and incarceration and
abolition. The book shows how deinstitutionalization is both a phenomenon and a
logic. Mass deinstitutionalization – the feat of getting people out of
disability-based carceral spaces – is a thing that happened, a phenomenon to be
investigated and understood by those of us who want to free people from prisons
and other carceral spaces, to end our reliance on incarceration
This
activist history, and the logic that undergirds it, has resonance for how we
relate to the “dangerous few” who are so often cited as a challenge to
abolitionism and left to the side of advocacy efforts. Ben-Moshe shows how the
tactic of starting with the most “challenging” work is a deeply feminist
praxis, drawing on bell hooks and the act of shifting the margins to the centre
(Ben-Moshe 2020, 125). My current work on the normalization of life sentences
and what it means to centre people serving life sentences for murder in our
abolitionist movements (Parkes 2021), is indebted to these insights from Decarcerating Disability and Ben-Moshe’s
earlier work.
On
deinstitutionalization as both a phenomenon and a logic, Ben-Moshe argues that
it is “essential to interrogate deinstitutionalization as a social movement, a
logic to counter carceral logics… [D]einstitutionalization is not just
something that ‘has happened’ but was a call for an ideological shift in the
way we react to difference among us” (Ben-Moshe 2020, 2). Decarcerating Disability challenges those of us who are used to
calling out carceral logics –
including in “progressive” campaigns – to also attend to the deeply ableist and
debilitating logics that are embedded in carceral systems and in a lot of
advocacy for decarceration and prisoner rights (see also Wildeman 2020). The
disabling nature of incarceration and whose bodies are available for capture
must be understood as core features of incarceration and institutionalization
(Ben-Moshe 2020, 9). This connection of criminalization to pathologization is
fundamental to the perpetration of state violence and incarceration of all
kinds.
Linda
Steele’s Disability, Criminal Justice
& Law: Reconsidering Court Diversion picks up similar themes, bringing
an analysis of debility (Puar 2017) and the bifurcation of disability. For
some, disability can be celebrated through rights discourses and access to some
individual remedies, with a focus on capacity. However, for others,
particularly criminalised disabled people, disability is about deprivation and
a process of positioning populations in an ongoing state of precarity through
disability — of systematic deprivation and violence. Steele shows how this
bifurcation is not accidental. It is a feature, not a bug, of the neoliberal
white settler nation-state and she examines law’s role in enabling debilitation
through seemingly progressive moves such as court diversion. Disability, Criminal Justice & Law
demonstrates how law is crucial to ensuring that court diversion is viewed as humane
and just, while also operating to shore up mainstream carceral responses by
being positioned as an “alternative”.
Importantly,
both books locate their analysis within critiques of settler colonialism.
Steele says that one of the ambitions of Disability,
Criminal Justice & Law is to “forge new sociolegal connections between
disability, law and settler colonialism” (Steele 2020, 10). That ambition can
be seen throughout the book, particularly in the narrative of Molly, a
composite hypothetical Indigenous criminalized disabled woman who is in and out
of child welfare, court diversion, prison, and other state carceral
institutions throughout her life. Court diversion or disability rights based
legal processes do not do any form of justice for her. They do not comprehend
or challenge the structural conditions of her life under settler colonial law.
Steele challenges the reader to contemplate what a decolonizing, abolitionist,
disability justice approach would look like for Molly.
In
this vein, while Steele’s book presents a compelling critique of disability
court diversion, her Chapter 8 is refreshingly forward-looking. It provides
ideas and provocations for teaching, activism, and research. Steele sketches
out a number of existing transformative, abolitionist strategies that are aimed
at dismantling the Chapter 8 of Disability, Criminal Justice & Law lists seven distinct
strategies but I will touch on just two that I have found particularly
generative. In calling for the advancement of a critical disability legal
pedagogy, Steele asks, “What should
our ethical responsibilities be to those whose injustices we bear witness to,
as lawyers, activists and legal scholars; and how can we begin to develop in
law students the critical awareness and skills through which to meet these
responsibilities?” She describes how negative ontologies of disability are deeply
embedded in and through law. They “underpin core legal concepts such as
capacity, rationality and reasonableness, and they order legal domains, all of
which makes possible and natural differential access to liberal legal
citizenship and full humanness” (210). Despite the growth and vibrancy of
critical disability studies and crip critical theory in recent years, law
schools – even progressive classrooms where critical perspectives are common –
have largely missed this turn and its implications for our teaching. Steele
cites Sherene Razack (2015) on the pedagogical practice of inviting students to
examine their complicity in ongoing colonialism. At the law school where I
teach, we have introduced a mandatory Indigenous-Settler Legal Relations course
that has examining such complicity as one of its objectives. However, Steele
shows how there is much more work in this vein to do in legal education. She
argues compellingly that: legal teachers
need to be aware that because they are, in effect, teaching violence when they
teach law without critical reflection on disability… they are representing
violence—both against disabled people and through legal ontologies of
disability—as rightly lawful and just, and this sustains other dynamics and
forces of oppression. (210) Disability, Criminal Justice & Law also calls for a strategic, critical
engagement with human rights in our deinstitutionalization and abolitionist
work. Steele is critical of the way that the United Nations’ Convention on the Rights of People with
Disabilities has been interpreted and mobilized as anti-disability-specific but not anti-carceral. This is true of essentially all human rights
instruments, such as the Canadian Charter
of Rights and Freedoms and Canada’s statutory human rights laws that have
grounded many prisoner rights claims. Nevertheless, Steele suggests that human
rights strategies and litigation are political tools that can be deployed
“where their use can disrupt rather than fold back into biopolitical control”
(216, citing Golder 2015). They can be used tactically in ways that challenge
rather than reinforce power relations. I have argued that a prison abolitionist
lawyering ethic requires asking whether a particular legal argument or remedy
reinforces or challenges carceral logics. However, Steele and Ben-Moshe provoke
those of us who work with legal strategies to inquire further: does our work
challenge or undermine debilitating logics (and colonial logics)? These
inquiries connect back to Ben-Moshe’s nuanced analysis of litigation against
prisons and institutions and what our movements might learn from these
histories. The call is to move beyond “simplistic questions of whether certain
lawsuits were successful to more wide-reaching questions about what reform
litigation did, cumulatively,” to see the politicizing effects as well as how
these efforts sometimes ushered in more effective ways to incarcerate (231). As
Ben-Moshe argues compellingly, abolition is a dis-epistemology, a “letting go of certain ways of knowing in order
to gain others, unlearning in order to learn” (283). Both books are full of
challenging and rich insights, including much unlearning for abolitionist legal
scholars and students. References Ben-Moshe,
Liat. 2020. Decarcerating Disability:
Deinstitutionalization and Prison Abolition. Minneapolis: University of
Minnesota Press. Foucault,
Michel. 1977. Discipline and Punish.
Alan Sheridan, trans. New York: Random House. Golder,
Ben. 2015. Foucault and the politics of
rights. Stanford: Stanford University Press. Parkes,
Debra. 2021. “Starting with Life: Murder Sentencing and Feminist Abolitionist
Praxis.” In Building Abolition:
Decarceration and Social Justice, edited by Kelly Struthers Montford and
Chloë Taylor, 151-164. London: Routledge. Parkes,
Debra. 2017. “Solitary Confinement, Prisoner Litigation, and the Possibility of
a Prison Abolitionist Lawyering Ethic.” Canadian
Journal of Law & Society / Revue Canadienne Droit Et Société, 32(2):
165-185. Parkes,
Debra. 2016. "Women in Prison: Liberty, Equality, and Thinking outside the
Bars." Journal of Law & Equality,
12:127-156. Puar,
Jasbir. 2017. Right to maim: debility,
capacity, disability. Durham & London: Duke University Press. Razack,
Sherene. 2015. Dying from improvement:
inquests and inquiries into Indigenous deaths in custody. Toronto:
University of Toronto Press. Steele,
Linda. 2020. Disability, Criminal Justice
and Law: Reconsidering Court Diversion. London: Routledge. Wildeman,
Sheila. 2020. “Disabling Solitary: An Anti-Carceral Critique of Canada’s
Solitary Confinement Litigation.” In Disability,
Law and Policy in the ‘Deinstitutionalised’ Community, edited by Claire
Spivakovsky, Linda Steele and Penelope Weller. London: Bloomsbury.
*Chair in Feminist Legal Studies,
Peter A. Allard School of Law, University of British Columbia, Canada