Criminal Sentencing in the CRPD Era: Lessons from SingaporeDaryl WJ Yang*I. IntroductionOn 27 April 2022, Singapore executed Nagaenthran K. Dharmalingam, a 33-year-old Malaysian who was convicted of trafficking 42.72 grams of heroin. His execution was carried out despite calls from United Nations (UN) human rights experts, including the Special Rapporteur on the Rights of Persons with Disabilities, for the government to commute his death sentence inter alia on the basis that Nagaenthran did not have access to procedural accommodations for his disability during his interrogation and death sentences should not be carried out on persons with serious psychosocial and intellectual disabilities. Nagaenthran’s execution has put Singapore’s criminal legal system, particularly in respect of its treatment of offenders with intellectual and psychosocial disabilities, under international scrutiny. In particular, those opposed to Nagaenthran’s execution have argued that Singapore acted in breach of international human rights law by executing a man who is intellectually disabled. Several months after the execution, the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) issued its concluding observations on Singapore’s first periodic review under the UN Convention on the Rights of Persons with Disabilities (CRPD) and urged Singapore to “abolish the death penalty for persons with intellectual disabilities, persons with psychosocial disabilities and autistic persons, including for crimes not involving intentional killing”. According to the CRPD Committee, the prohibition against imposing the death penalty on persons with intellectual or psychosocial disability is “grounded on the disproportionate and discriminatory denial of fair trial guarantees and procedural accommodations”. On the other hand, in the Court of Appeal had held that Nagaenthran’s various psychosocial conditions were not relevant in respect of his mental responsibility for the offence. The court rejected the argument that Nagaenthran’s borderline intelligence, severe alcohol use disorder and severe attention deficit hyperactivity disorder substantially impaired his mental responsibility; instead, the Court of Appeal held that “this was the working of a criminal mind, weighing the risks and countervailing benefits associated with the criminal conduct in question”. Had the court made the opposite factual finding, Nagaenthran could have availed himself of the statutory exception to the death penalty under the Misuse of Drugs Act 1973 (MDA), which requires the court to sentence a person to imprisonment for life instead of imposing the death penalty if the offender was suffering from such “abnormality of mind” as substantially impaired their mental responsibility for their acts and omissions in relation to the offence.Strikingly, given the court’s factual finding, Nagaenthran could still have been executed even if Singapore had implemented the CRPD Committee’s recommendation to abolish the death penalty for persons with intellectual disabilities, persons with psychosocial disabilities and autistic persons. This is because the issue ultimately boils down to whether the offender is considered to be sufficiently disabled to be exempted from the death penalty. For example, though the Supreme Court of the United States (SCOTUS) has banned the use of the death penalty on intellectually disabled offenders on the basis that it violates the Eighth Amendment of the United States (US) Constitution as a matter of law, whether a specific offender may be executed ultimately depends on whether the court determines them to be intellectually disabled as a matter of fact. In this regard, notwithstanding that the CRPD was not considered by nor binding on the Singapore court because of its adherence to a dualist approach towards international law, its reasoning as to the relationship between Nagaenthran’s disabilities and his criminal culpability may arguably be consistent with the CRPD. Article 12(2) of the CRPD states that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. According to the CRPD Committee, this means that a disabled person should not be assumed to lack legal agency – and concomitantly, responsibility for exercising such agency – on the basis of their disability. Indeed, Michael Perlin has called for reforms to the criminal process in light of the CRPD to eliminate the influence of sanism, which perpetuates stigmatising assumptions about persons with intellectual or psychosocial disabilities and undermines the dignity of such persons involved in the criminal process. For instance, sanism may result in criminal sentencing decisions that are based on the mere fact that the offender is disabled without any consideration as to whether that disability justifies differential treatment.The CRPD Committee has not explicitly addressed how criminal sentencing – and the determination of the criminal culpability of an offender with intellectual or psychosocial disability – ought to be carried out in light of the principles of the CRPD, in particular Articles 12 and 14. This issue has also not been ventilated in the literature either. On one hand, scholarship on the criminal sentencing of offenders with intellectual and psychosocial disabilities have not fully engaged with how the CRPD should shape sentencing practices. On the other hand, scholarship examining the CRPD in the context of criminal justice has largely focused on two other aspects of the criminal legal system: first, whether the CRPD demands the abolition of capacity-specific defences such as insanity or unsoundness of mind as well as the forced treatment of accused persons who plead such defences; and second, whether mental health courts and court diversion are compatible with the CRPD. Drawing on criminal sentencing jurisprudence in Singapore, this Article addresses two key questions on this issue: first, should the fact that an offender has an intellectual or psychosocial disability be a relevant consideration in the criminal sentencing process; and second, if it is a relevant consideration, how should it be taken into account in determining the appropriate sentence? While the Singapore courts were not informed or guided by the CRPD in developing the sentencing framework for offenders with intellectual and psychosocial disabilities, this Article suggests that Singapore’s approach – including in Nagaenthran’s case – is consistent with the principles underpinning the CRPD by adopting a multifactorial approach to the relevance of an offender’s disability and attending carefully to their state of mind rather than the mere fact of their disability. Notably, in Public Prosecutor v ASR (PP v ASR), the Court of Appeal laid out a two-step sentencing framework for determining how a young offender with intellectual disability should be sentenced. Singapore’s criminal sentencing jurisprudence thus offers useful insight into how sentencing courts should deal with offenders with intellectual and psychosocial disabilities in light of the CRPD in respect of whether and how such disability should be taken into account in determining the appropriate sentence. Ultimately, this Article highlights that compliance with the CRPD in the criminal sentencing process is necessary but insufficient to realise the purpose of the CRPD, set out at Article 1, to “promote respect for [the] inherent dignity” of persons with disabilities. As Linda Steele notes, the CRPD may be of limited utility in reimagining and reforming the criminal legal system because it “reflects an ambivalence towards criminal law and criminal justice… exemplified by the focus on inequality along the lines of disability and its focus on disability institutions rather than additionally considering mainstream institutions of confinement such as prisons.” Heeding Simone Rowe and Leanne Dowse’s call for greater engagement between the fields of critical disability studies and penal abolitionism, the Article ends by reflecting on how disability justice – and the realisation of the CRPD’s purpose to promote respect for the inherent dignity of disabled persons – demands a radical reimagination of criminal justice and our understanding of criminal responsibility and culpability.The next section discusses the principles enshrined in the CRPD as they relate to the criminal legal system. Section III traces the development of Singapore’s approach to the criminal sentencing of offenders with intellectual or psychosocial disabilities, in particular the sentencing framework established in PP v ASR. Drawing on Singapore’s experience, Section IV identifies the key features of a criminal sentencing process that is consistent with the CRPD and considers the CRPD’s limits in realising disability justice in the criminal legal system. Section V concludes.II. The CRPD and the criminal legal systemIn December 2006, the United Nations General Assembly adopted the CRPD which the then UN Secretary-General Kofi Annan hailed as the “dawn of a new era” for the world’s largest minority. Article 1 of the CRPD sets out its purpose to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” This idea of the inherent dignity of disabled persons is central to the CRPD. Paragraph 8 of the Preamble to the CRPD recognises that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person. According to Michael Perlin, the CRPD has “significant and robust connections” with therapeutic jurisprudence, particularly in the criminal context, as both stress the concept of dignity in the legal process.Informed by this concept of the inherent dignity of disabled persons, the CRPD propagates the human rights model of disability which “encompasses the values for disability policy that acknowledges the human dignity of disabled persons.” Put simply, the human rights model of disability prohibits the denial or restriction of the human rights of a disabled person on the basis of the existence of an impairment. The CRPD thus seeks to overcome the medical model of disability, which regards disability as “an impairment that needs to be treated, cured, fixed or at least rehabilitated”. Under the medical model, many governments have justified the denial or restriction of the human rights of disabled persons on the basis of their disability; for example, disabled persons have been deprived of the right to make decisions about their lives – be it their health, education or even housing – on the basis that they lack the ability to do so. Article 12(1) of the CRPD confronts this pernicious problem by expressly enshrining the right of disabled persons to equal recognition before the law. As a corollary, Article 12(2) obliges state parties to recognise the disabled person’s legal capacity on an equal basis with others in all aspects of life. This would include in the criminal context. Legal capacity comprises a person’s ability to (i) hold rights and duties (legal standing) and (ii) exercise those rights and duties (legal agency). As set out in the CRPD Committee’s General Comment No. 1, legal capacity is distinct from mental capacity and should not be conflated with each other. Broadly speaking, mental capacity refers to the decision-making skills of a person, which the CRPD Committee observes “naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors”. Yet, far too often, the legal capacity of disabled persons have been denied or restricted on the basis that they lack mental capacity by reason of their intellectual or psychosocial disability. The CRPD Committee makes clear that such laws, policies and practices must be reformed because they fall foul of Articles 5 and 12 of the CRPD.The recognition of the right to legal capacity is “essential for access to justice” and “in order to seek enforcement of their rights and obligations on an equal basis with others, persons with disabilities must be recognised as persons before the law with equal standing in courts and tribunals”. In this regard, the CRPD Committee has clarified that declarations of unfitness to stand trial or non-responsibility in criminal justice systems on the basis of an accused person’s disability and the detention of disabled persons on this basis are contrary to Article 14 of the CRPD and should be abolished. Some have however criticised the CRPD Committee’s call to abolish such defences, with Perlin going so far as to describe it as “the single most wrongheaded (and potentially destructive) statement uttered by any supporter of the CRPD since its initial drafting”.Others, like Tina Minkowitz, have applauded the CRPD Committee’s recommendations, noting that “a negation of criminal responsibility that is based on insanity or mental incapacity… undermines the equal recognition of persons with disabilities before the law as individuals with mutual obligations towards others and an equal right to participate in defining and negotiating those obligations”. At the same time, informed by Article 5 of the CRPD, she proposes that the determination of a disabled person’s criminal responsibility should be “addressed with both formal and substantive equality measures”. On one hand, as a matter of formality equality, disability-specific defences that negate criminal responsibility should be abolished. On the other hand, as a matter of substantive equality, diversity in decision-making should be accommodated when adjudicating culpability to realise substantive equality for offenders with disabilities in the criminal process. This would, for example, require the factfinder to consider the accused’s perceptions, beliefs and worldview rather than simply assume that the accused was not able to form the subjective intent to commit an offence because they have an intellectual or psychosocial disability.The disagreement between Perlin and Minkowitz however may not be as dire as it seems. Perlin’s principal concern with the abolition of disability-specific defences is in respect of the grave consequences it would have ceteris paribus as more offenders with intellectual and psychosocial disabilities would end up incarcerated and “lead to torture… at the hands of both prison guards and other prisoners”. However, Minkowitz’s proposal is not confined only to the abolition of disability-specific defences; instead, she emphasises that while disabled offenders should not be exempted from imprisonment on the basis of their disability, the state must carry out their sentence “subject to reasonable accommodation and in compliance with the objectives and principles of the CRPD”. This debate hints at Steele’s criticism of the CRPD as “anti-disability-specific” but not “anti-carceral” in that reliance on the CRPD “risks only further entrenching criminalised disabled people in the mainstream criminal justice system, rather than delivering us a world beyond prison”. Indeed, neither Perlin nor Minkowitz seem to have considered the potential role of penal abolition in advancing disability justice. This Article returns to the limitations of the CRPD in transforming the criminal legal system and the relationship between disability justice and penal abolition in Section IV. Whereas the above discussion has focused on the question of criminal responsibility (in terms of whether an accused with intellectual or psychosocial disability should be convicted of a crime), this Article turns to consider the issue of criminal culpability (in terms of what the appropriate sentence should be meted out to an offender with intellectual or psychosocial disability who is convicted of a crime). Given the numerous disability-specific practices in criminal sentencing such as the doctrine of diminished responsibility and the recognition of intellectual and psychosocial disability as a mitigating factor, it is important to consider whether these practices are compliant with the CRPD and if not, how they should be reformed.III. Sentencing of offenders with intellectual and psychosocial disabilities in Singapore As a former British colony, Singapore adopts the Westminster system of constitutional government and criminal sentencing is a matter that involves all three branches of government. First, the legislature enacts legislation which prescribes the sentencing scheme for offences. Second, the judiciary exercises its sentencing discretion to determine the appropriate sentence for the individual offender based on the facts of each case and the statutory scheme. Finally, the relevant executive agency – be it the prison, the probation officers, etc – carries out the sentences imposed by the court.Nagaenthran’s execution has put Singapore’s criminal legal system in the spotlight, with British billionaire Sir Richard Branson – who also serves as a commissioner on the Global Commission on Drug Policy – suggesting that the execution has “cast serious doubts on Singapore’s willingness to uphold international law”. Given the separation of powers in respect of criminal sentencing, this criticism should be directed at the Singapore legislature, rather than the judiciary, because the death penalty is prescribed as a mandatory punishment for the offence of drug trafficking for which Nagaenthran was convicted. The judiciary has no discretion in this regard and there are only two statutory exceptions, one of which is the partial defence of diminished responsibility, where the court is similarly required – as a matter of statute – to impose a sentence of life imprisonment instead of the death penalty.As the imposition of the death penalty on offenders with intellectual or psychosocial disability has received significant academic attention, this Article focuses instead on the court’s exercise of sentencing discretion more generally in relation to this group of offenders. Though Singapore ratified the CRPD in 2013, the judiciary’s approach to the criminal sentencing of so-called “mentally disordered” offenders (which is used to refer to those with intellectual or psychosocial disabilities) does not appear to have been influenced or informed by the CRPD. There is no diversion programs to provide such offenders with treatment and support at the pre-arrest or pre-plea stage. However, the court has the discretion to impose probation or community sentences, including mandatory treatment orders, if certain statutory requirements are satisfied. In determining the appropriate sentence, the Singapore courts engage in a two-step inquiry. First, the court must first decide which sentencing principle – deterrence, incapacitation, rehabilitation or retribution – is the dominant one which will narrow the relevant sentencing options. Second, the court determines the most appropriate sentence based on what the dominant sentencing principle is. If the dominant sentencing principle is rehabilitation, then the court may choose from the available rehabilitation options be it probation, mandatory treatment or community service. Alternatively, the court may sentence the offender to imprisonment for an appropriate length of time based on what would best serve the public interest and also rehabilitate the offender.In sentencing offenders with intellectual or psychosocial disabilities, the Singapore courts have held that “the existence of a mental disorder on the part of the offender is always a relevant factor.” However, the sentencing court must grapple with what has been described as the “paradox of sentencing the mentally ill”, where the existence of an intellectual or psychosocial disability can be a “mitigating consideration or point towards a future danger that may require more severe sentencing.” In addition, courts must also grapple with the “tension between the sentencing principles of specific and general deterrence on the one hand, and the principle of rehabilitation on the other” where the disability is sufficiently serious and causally related to the commission of the offence. This section examines how the Singapore courts have negotiated these challenges in determining the dominant sentencing principle and also the appropriate sentence in a series of recent cases involving the sentencing of offenders with either an intellectual or psychosocial disability. A. Determining the dominant sentencing objectiveIn Public Prosecutor v Low Ji Qing, the Court of Appeal summarised the applicable principles when sentencing a “mentally disabled” offender based on past cases. First, the existence of a mental disorder on the part of the offender is generally a relevant factor in the sentencing process. However, the manner and extent of its relevance depends on the circumstances of each case, in particular, the nature and severity of the mental disorder. Second, the starting point in the sentencing process is the principle of deterrence. On one hand, the element of general deterrence may be accorded full weight in some circumstances, such as where the disability is not serious or is not causally related to the commission of the offence, and the offence is a serious one. On the other hand, notwithstanding the existence of a disability on the part of the accused person, specific deterrence may remain relevant in instances where the offence is premeditated or where there is a conscious choice to commit the offence. Third, if the disability renders deterrence less relevant, where for instance the offender has a significantly impaired ability to appreciate the nature and quality of his actions, then rehabilitation may take precedence. Nevertheless, even though rehabilitation may be a relevant consideration, it does not necessarily dictate a sentence that excludes incarceration since the accused person could potentially be rehabilitated in prison too. Finally, in cases involving heinous or serious offences, even when the accused person is labouring under a serious mental disorder, the retributive and protective principles of sentencing may prevail over the principle of rehabilitation.The foregoing principles highlights three principal considerations that influence which sentencing principle should take precedence and how an offender’s disability is accounted for in the sentencing process: first, the nature of the offender’s disability; second, the causal connection between the disability and the commission of the offence; and third, the impact of the disability on the offender’s ability to appreciate the gravity and wrongfulness of the offence they had committed. (1) Nature of the offender’s disability and the seriousness of the offence in questionIn Goh Lee Yin, the High Court held that the starting point in determining any sentence is the four classical principles of sentencing stated in R v James Henry Sargeant:What ought the proper penalty to be? … [The] classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.Goh Lee Yin is a case involving an adult offender who was diagnosed with kleptomania which had purportedly prompted her to commit the thefts for which she was being sentenced. In such a case, the High Court held that “the principles of rehabilitation and deterrence must form the prime focus of [the court’s] attention.” This is because the nature of offences committed by kleptomaniacs, shoplifting, is not particularly serious as to engage the principles of retribution and prevention. However, if an offender’s disability caused them to commit a particularly heinous offence, then those principles would be more salient. In the same vein, the court held that the “low-key nature of the offence”, which does not “seriously affect or inconvenience [the] public... [and] the items stolen are of little value”, leads to the conclusion that rehabilitation should form the primary focus in cases involving kleptomaniacs to help keep kleptomaniacs from reoffending. In contrast, deterrence plays a less significant role in cases involving kleptomaniac offenders for two reasons. First, general deterrence is less important because of the “very low incidence of kleptomania among apprehended shoplifters.” Second, specific deterrence is of limited relevance given that kleptomania is an impulse control disorder where the offender “may not be fully able to control his or her actions prior to and while committing the offence.” However, both general and specific deterrence may come into play in the exceptional circumstance where the offender in question has skipped their treatment plan persistently. In such a case, general deterrence is relevant to signal to kleptomaniacs that they could not expect to skip their treatment programs and then steal, with the courts forgiving them everything. Similarly, specific deterrence is engaged in a secondary manner to discourage the offender from violating the treatment program. At the same time, because the causal link between the omission to adhere to treatment and the actual commission of future offences cannot be conclusively proved, the court held that this secondary manifestation of specific deterrence (to discourage the offender from violating the treatment plan) should not be applied with equal force as the primary manifestation of deterring the offender from re-offending.(2) Causal connection between disability and the offender’s commission of the offenceThe fact that an offender is mentally disabled however does not always or necessarily lead a court to find that rehabilitation should be the dominant sentencing principle. Instead, the disability must also be causally connected to the offence in question. Hence, in Public Prosecutor v Chong Hou En (“Chong Hou En”), the High Court held: [J]ust because a disorder is included within the pages of the DSM-5 and ICD-10 does not automatically mean a court of law will attribute weight to the disorder as a substantial mitigating factor… The diagnosis must be supported by a clinical expert’s opinion on the nature of the disorder and how it affects an individual. (emphasis in original)In this case, though the offender was diagnosed with voyeurism, the court held that the diagnosis is not determinative to override the principle of deterrence in favour of rehabilitation. Instead, the court must go on to “establish whether or not the voyeur is able to control himself when he plans, takes preparatory steps and eventually commits the acts of voyeurism.” Hence, the court will consider the offender’s disability only insofar as it impairs his ability to control their own behaviour prior to and during the commission of the offence. Where the connection between the disability is more attenuated, the court is unlikely to give any weight to the fact of the accused’s disability as a mitigating factor since it is not considered directly relevant to the commission of the offence. (3) Offender’s ability to appreciate the gravity and wrongfulness of the offence Even if the offender’s disability has some causal relation to the offense in question, the nature of the offence may lead the court to consider that the retributive and preventive principles should take precedence over rehabilitation. In Lim Ghim Peow, the accused had set his ex-lover on fire which resulted in her death as a result of her burn injuries. Because of the heinous nature of the offence, the fact that the accused was diagnosed with major depressive disorder was secondary and did not convince the court to prioritize his rehabilitation over the principles of retribution, prevention and deterrence. Specifically, though the court acknowledged that the accused’s major depressive disorder impaired his degree of self-control and decision-making capacity, it nonetheless considered that the disability did not mean that he lacked the “capacity to comprehend the events or the capacity to appreciate the wrongfulness of his actions.” As this above quote suggests, the court is concerned not simply with the gravity of the offence itself but whether the offender is capable of appreciating what he has done. It was on this basis that the Court of Appeal rejected Nagaenthran’s appeal to reduce his sentence to life imprisonment. In finding that he could not rely on the statutory defence of diminished responsibility, the Court of Appeal held that even assuming that he was suffering from an “abnormality of mind”, Nagaenthran “clearly understood the nature of his acts and did not lose his sense of judgment of the rightness or wrongness of what he was doing”.In contrast, in PP v ASR, the Court of Appeal held that though the offender had raped the victim after threatening to pull a knife on her, rehabilitation remained the dominant sentencing consideration. This is because whether rehabilitation was displaced as the dominant sentencing consideration turned principally on the offender’s state of mind at the time of the offence. In this case, the court held that the offender – who was 14 years old at the time of the offence and intellectually disabled – did not understand the gravity and consequence of what he had done because of his low cognitive ability. Accordingly, these factors substantially reduced his culpability and the nature of the offence by itself would not displace rehabilitation as the dominant sentencing objective.B. Ascertaining the offender’s state of mind at the time of the offenceWhat is significant about PP v ASR, compared to previous cases, is the meticulous manner by which the court went about ascertaining the offender’s state of mind to determine whether he was capable of appreciating the gravity and wrongfulness of what he had done. This contrasts with earlier cases, like Lim Ghim Peow where the court found that “there was nothing to indicate that the [offender] lacked the capacity to comprehend his actions or appreciate the wrongfulness of his conduct.” In Lim Ghim Peow, the court did not directly assess the offender’s state of mind at the time that he committed the offences. Instead, it mainly relied on the conclusion of the expert psychiatric witness and its own inference that the offender must have had the capacity to appreciate what he had done based on the fact that he had “carefully planned his moves.”In this case, the accused was a student at a special education school and had been assessed by the Institute of Mental Health a few months after the commission of the offences to have an IQ of 61. His mental age was assessed by one expert to be eight years old, and by another to be between eight and ten years old. On the day of the offence, he had spotted the victim who went to the same special education school though they did not know each other. He followed her to her apartment building and forced himself on her when they exited the elevator. When she resisted and tried to flee, the accused told her that he would take out a knife if she did not lie down. He then penetrated her without her consent and ejaculated on her underwear. After he found a comb about 15cm long that belonged to the victim, he inserted it into her vagina and placed it into her mouth after taking it out. He then said, “Bye bye”, and left the scene.In its judgment, the Court of Appeal carefully considered the evidence set out in an expert report that demonstrated the accused had “a limited understanding of the nature and consequence of his actions.” Specifically, the court noted that while the offender “knew that what he had done to the victim was wrong; [t]he question was the extent of this awareness.” Based on the offender’s responses to the psychiatrist’s questions about the incident during which he committed the offences, the court found that the offender was:a person with a distorted, confused but ultimately simplistic view of sexuality, and of the significance and heinousness of the sexual abuse that he committed… Critically, he appeared not to have even begun to understand the depravity of his conduct, the degradation and trauma suffered by the victim, and the consequences for the both of them.Though the court’s finding was consistent with the expert’s conclusion that the offender “knew that his actions were wrong, but ‘… did not appreciate the legal wrongfulness of his act[s]’”, what is striking is that the court did not simply accept the expert’s words at face value. Instead, the court looked to the relevant evidence to ascertain the offender’s state of mind at the time of the offence. This offender-specific inquiry is important because it ensures that the court attends to the particular manner by which an offender’s disability impacts their mental responsibility for and appreciation of the wrongfulness of what they had done. This prevents the court from engaging in sanist reasoning that the offender’s intellectual or psychosocial disability must necessarily reduce their culpability or not, as was arguably the case in Lim Ghim Peow.IV. Criminal sentencing in the CRPD eraThis section analyses Singapore’s sentencing jurisprudence through the lens of the CRPD. As discussed above in Section II, the CRPD demands both formal and substantive equality in respect of the equal enjoyment of legal capacity. In addition, the CRPD represents a shift away from the medical model of disability which raises questions as to how much reliance courts should place on expert medical evidence in the sentencing process. Yet, ultimately, criminal legal system that recognises the equality of disabled and non-disabled persons before the law could still fail to respect the inherent dignity of disabled persons – and non-disabled persons as well. Singapore’s experience demonstrate that even when criminal sentencing is conducted in compliance with the CRPD, our contemporary imagination of criminal punishment – be it incarceration, or the death penalty or caning – may ultimately be contrary to the CRPD’s purpose of promoting respect for the inherent dignity of disabled persons. Looking beyond the CRPD, this section ends by considering the limits of a disability rights approach to criminal justice and how we should instead turn to a broader engagement with criminal justice reform through the lens of penal and prison abolition.A. Equal enjoyment of legal capacityIn relation to formal equality, the conscientious approach adopted in PP v ASR demonstrates how sentencing courts should approach an offender’s intellectual or psychosocial disability in a manner that is consistent with the CRPD’s demand that disabled persons enjoy equal recognition before the law. Rather than draw any inference based on the fact of the offender’s disability, a court should look specifically at the particular offender before it to determine those questions. Whether an offender has a disability or not should not be conclusive as to what the dominant sentencing principle or appropriate sentence should be.While the imposition of rehabilitative sentences may ostensibly appear to violate the formal equality principle since it is available only to offenders whom the court has found to be “suffering” from a mental disorder, this may be justified as a form of reasonable accommodation. Such sentencing orders would thus still remain consistent with the CRPD, since Article 5(3) of the CRPD requires that state parties take all appropriate steps to ensure that reasonable accommodation is provided to promote equality and eliminate discrimination. Hence, where the court has determined that rehabilitation should be the dominant sentencing objective, it should apply its mind as to the most appropriate sentence to achieve rehabilitation – be it probation, a mandatory treatment order (notwithstanding that such orders violate Article 25(d) of the CRPD), or even rehabilitation in a structured environment through imprisonment – in light of the specific offender’s needs and circumstances. In fact, what would fly in the face of the CRPD is a de jure or de facto diversion of all offenders with intellectual or psychosocial disabilities to a specific type of rehabilitative sentence.B. Reliance on expert medical evidenceAs a facet of substantive equality, the court should not simply rely on the evidence of medical experts but look at the totality of the evidence adduced at trial, including especially the testimony of the offender should they choose to testify in the proceedings. The court must also ensure that diversity in the decision-making process is accommodated. This means that judges should be circumspect about making assumptions or drawing adverse inferences about how an offender with intellectual or psychosocial disability should conduct or express themselves. They should also approach the question with an attentiveness to the danger that sanism might seep into their reasoning or colour their perception of the offender. Making these considerations explicit invites judges to challenge their personal biases and appreciate the complexities of how intellectual and psychosocial disability may manifest differently in each individual. In this regard, and as emphasised by the CRPD Committee, judges should receive the necessary training about the rights of persons with disabilities, in particular “the fact that persons should not be identified purely on the basis of impairment” and “the diversity among persons with disabilities and their individual requirements in order to gain effective access to all aspects of the justice system on an equal basis with others”.In this regard, it is questionable whether the court’s finding that there was a high degree of planning, preparation and premeditation necessarily means that the offenders in Lim Ghim Peow and Chong Hou En are equally culpable as a non-disabled comparator. Unfortunately, this did not seem to have crossed the court’s mind in either case. In accordance with the CRPD’s requirements, the court should have considered the offender’s conduct in planning and preparing to commit the relevant offences in the context of their disability. These actions, by themselves, should not lead the court to assume that the offender’s disability had no bearing or causal relation to the commission of the offences, and therefore that the offender should have been conscious of the wrongfulness of what they were doing.C. Limits of the CRPD in the pursuit of dignity for disabled persons in criminal justice reformThis Article’s discussion on how criminal sentencing should be conducted in light of the CRPD should make clear that the CRPD may be of limited utility in the context of criminal justice insofar as its purpose is the promotion of respect for the inherent dignity of disabled people. Beyond the two requirements of formal and substantive equality discussed above, the CRPD seems incapable of offering any substantive critique of the forms of punishment imposed by the penal state. As Steele observed, the CRPD “does not provide the tools to grapple with the full complexities and contradictions of disability-specific coercive interventions in a criminal legal context and in relation to criminalised disabled people.” In Singapore’s context, putting aside the issue as to whether he was afforded accommodations in the investigation process, this unsatisfactory state of affairs is perhaps best demonstrated by the sentencing of Nagaenthran to the gallows, which arguably was conducted in compliance with the CRPD in finding that he was not disabled for purposes of the statutory exemption from the death penalty.This can be attributed to the fact that the CRPD was not intended to create new substantive rights but to address the problem that “existing human rights instruments have fallen far short in their protection of the human rights and fundamental freedoms guaranteed to persons with disabilities”. Insofar as the international human rights regime has “accepted and normalised the existence of prisons through the production of an extensive range of norms and standards pertaining to the treatment of prisoners”, it is unsurprising then that the CRPD does not offer any guidance as to whether existing penal sentences would be consistent with the dignity and rights of persons with disabilities. Yet, even if the two requirements of formal and substantive equality are satisfied, it is clear that the criminal legal system is in urgent need of reform and reimagination. Bringing into dialogue the two fields of penal abolitionism and critical disability studies, Rowe and Dowse argue that both strands of scholarship call attention to the “depth of violence inherent in carcerality and the social, physical, psychic, political and economic harms synonymous with carceral practices and incarceration”. In particular, the implementation of disability-specific rights in prison may “justify even greater funnelling of the already extraordinary resources into penal institutions” and “leave unexamined an arguably primary root cause of the penalisation of people with and without disability: social-structural injustice”. In this regard, Isobel Renzulli has argued that a human rights based approach to imprisonment “cannot be limited to improving the conditions inside the prison or limiting its use”; instead, it must also implement “transformative interventions outside the narrow and punitive confines of the criminal justice system… for a more equitable and inclusive social justice agenda, where human flourishing matters more than punishment”. Specifically, Renzulli points to the role that economic, social and cultural rights play in challenging structural inequalities and “tackling exclusion and social disadvantage, as factors heightening the risk of imprisonment”. Considering that the CRPD comprises both first-generation civil and political rights as well as second-generation economic, social and cultural rights, it remains to be seen how these two components of the treaty can be creatively interpreted and applied to the criminal legal system to address the harms of the carceral state and its penal practices. V. Conclusion Drawing on recent jurisprudence in Singapore, this Article has presented a critical disability perspective on whether and how courts should weigh an offender’s intellectual or psychosocial disability in the criminal sentencing process. It adds to the scholarship on the implementation of the CRPD in the criminal context, which has hitherto focused on other components of the criminal process such as the role of mental health courts, disability-specific defences and court-ordered mandatory treatment. Heeding the CRPD’s demand for a paradigm shift in how disability and legal capacity are understood, this Article demonstrates what the treatment of offenders with disabilities on an equal basis in the criminal legal system can and should look like within the context of criminal sentencing by focusing on how an offender’s disability should be taken into account in determining the appropriate sentence. Yet, the equality of disabled persons in the criminal sentencing process may be insufficient to realise the more ambitious objective of the CRPD to promote respect for the inherent dignity of disabled persons in light of its inability to interrogate the carceral state. Future research should look beyond the CRPD and engage with the related fields of critical disability studies and penal abolitionism to imagine how the criminal sentencing of offenders with intellectual and psychosocial disabilities can and should be carried out in a way that is consistent with respect for their inherent dignity.* Daryl WJ Yang, LLM (Berkeley Law); LLB (NUS Law); BA (Liberal Arts) (Yale-NUS College). The author is grateful to Jennifer Johnson, Dr George Woods and the anonymous reviewers for their comments. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"iMAEKEfV","properties":{"formattedCitation":"\\uc0\\u8216{}Singapore: UN Experts Urge Halt to Execution of Drug Offender with Disabilities\\uc0\\u8217{} ({\\i{}OHCHR}) <https://www.ohchr.org/en/press-releases/2021/11/singapore-un-experts-urge-halt-execution-drug-offender-disabilities> accessed 12 March 2023.","plainCitation":"‘Singapore: UN Experts Urge Halt to Execution of Drug Offender with Disabilities’ (OHCHR) <https://www.ohchr.org/en/press-releases/2021/11/singapore-un-experts-urge-halt-execution-drug-offender-disabilities> accessed 12 March 2023.","noteIndex":1},"citationItems":[{"id":5789,"uris":["http://zotero.org/users/8253372/items/JB5HPDXH"],"itemData":{"id":5789,"type":"webpage","abstract":"UN human rights experts* today urgently appealed to Singapore to definitively halt the execution of Malaysian national Nagaenthran a/l K Dharmalingam, known as Naga, who has psychosocial disabilities. He was originally scheduled to be executed on 10 November for drug offences. “We note that a temporary stay has been granted today until a final appeal can be heard tomorrow. However, we are seriously concerned that, if the appeal is dismissed, he could still be executed imminently,” the experts said.","container-title":"OHCHR","language":"en","title":"Singapore: UN experts urge halt to execution of drug offender with disabilities","title-short":"Singapore","URL":"https://www.ohchr.org/en/press-releases/2021/11/singapore-un-experts-urge-halt-execution-drug-offender-disabilities","accessed":{"date-parts":[["2023",3,12]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ‘Singapore: UN Experts Urge Halt to Execution of Drug Offender with Disabilities’ (OHCHR) <https://www.ohchr.org/en/press-releases/2021/11/singapore-un-experts-urge-halt-execution-drug-offender-disabilities> accessed 12 March 2023. Committee on the Rights of Persons with Disabilities, ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"qsdgCY7k","properties":{"formattedCitation":"Concluding observations on the initial report of Singapore 2022 [CRPD/C/SGP/CO/1].","plainCitation":"Concluding observations on the initial report of Singapore 2022 [CRPD/C/SGP/CO/1].","noteIndex":2},"citationItems":[{"id":5792,"uris":["http://zotero.org/users/8253372/items/EY4LTINY"],"itemData":{"id":5792,"type":"bill","number":"CRPD/C/SGP/CO/1","title":"Concluding observations on the initial report of Singapore","contributor":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2022",10,5]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Concluding observations on the initial report of Singapore 2022 [CRPD/C/SGP/CO/1]. Committee on the Rights of Persons with Disabilities, Comments on the draft General Comment No. 36 of the Human Rights Committee on article 6 of the International Covenant on Civil and Political Rights < https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/CRPD.docx> accessed 1 May 2023. Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] 2 SLR 216 (Nagaenthran (CA)) at [38] and [41]. Section 33B of the MDA provides that a person who is convicted of an offence punishable with death under the statute shall be sentenced to imprisonment for life if he or she was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his or her mental responsibility for his or her acts and omissions in relation to the offence. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"LeNFBDuI","properties":{"formattedCitation":"Ian Freckelton QC, \\uc0\\u8216{}Offenders with Intellectual and Developmental Disabilities: Sentencing Challenges after the Abolition of Execution in the United States\\uc0\\u8217{} (2016) 23 Psychiatry, Psychology and Law 321; Mina Mukherjee and Alexander Westphal, \\uc0\\u8216{}Shifting Diagnostic Systems for Defining Intellectual Disability in Death Penalty Cases: Hall vs. Florida\\uc0\\u8217{} (2015) 45 Journal of Autism and Developmental Disorders 2277; Paul S Appelbaum, \\uc0\\u8216{}Hall v. Florida: Defining Intellectual Disability in the Shadow of the Death Penalty\\uc0\\u8217{} (2014) 65 Psychiatric Services 1186.","plainCitation":"Ian Freckelton QC, ‘Offenders with Intellectual and Developmental Disabilities: Sentencing Challenges after the Abolition of Execution in the United States’ (2016) 23 Psychiatry, Psychology and Law 321; Mina Mukherjee and Alexander Westphal, ‘Shifting Diagnostic Systems for Defining Intellectual Disability in Death Penalty Cases: Hall vs. Florida’ (2015) 45 Journal of Autism and Developmental Disorders 2277; Paul S Appelbaum, ‘Hall v. Florida: Defining Intellectual Disability in the Shadow of the Death Penalty’ (2014) 65 Psychiatric Services 1186.","noteIndex":6},"citationItems":[{"id":6139,"uris":["http://zotero.org/users/8253372/items/6QFRZKK2"],"itemData":{"id":6139,"type":"article-journal","abstract":"In a sequence of decisions between 1989 and 2014, the United States Supreme Court grappled with intellectual and developmental disabilities in the shadow of the imposition of the death penalty on criminal offenders. In Penry v Lynaugh, 492 US 302 (1989), it jettisoned the notion of ‘mental age’ as a tool for assessing such disabilities. In Hall v Florida, 572 US (2014); 134 S Ct 1986 (2014), it abandoned the terminology of mental retardation and identified intellectual disability as existing on a spectrum, not being just an IQ number, to be determined by reference to various forms of evidence, lay and expert. In Atkins v Virginia, 536 US 304 (2002), it pronounced imposition of the death penalty on persons who are ‘mentally retarded’ to be cruel and unusual punishment in breach of the Eighth Amendment to the Constitution. Importantly, too, the Supreme Court jurisprudence has evidenced an increasing sophistication in awareness of the forensic repercussions of ‘intellectual and developmental disorders’ (IDDs). This editorial traces the evolution of United States intellectual disability jurisprudence in respect of imposition of the death penalty, reflects on the ongoing areas of vulnerability for criminal offenders with IDDs and calls for further consideration to be given to the option for offenders with an IDD to be sentenced to reside in a forensic IDD environment as a humane containment and behaviour modification alternative to other forms of disposition.","container-title":"Psychiatry, Psychology and Law","DOI":"10.1080/13218719.2016.1187243","ISSN":"1321-8719","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/13218719.2016.1187243","page":"321-335","source":"Taylor and Francis+NEJM","title":"Offenders with Intellectual and Developmental Disabilities: Sentencing Challenges after the Abolition of Execution in the United States","title-short":"Offenders with Intellectual and Developmental Disabilities","volume":"23","author":[{"family":"Freckelton QC","given":"Ian"}],"issued":{"date-parts":[["2016",5,3]]}}},{"id":6169,"uris":["http://zotero.org/users/8253372/items/AG5R5ZCK"],"itemData":{"id":6169,"type":"article-journal","abstract":"The case of Hall vs. Florida tested Florida’s so called “bright line rule” in determining intellectual disability in capital cases. The Supreme Court Decision reflects a more general trend from categorical to dimensional approaches in psychiatric diagnostic systems.","container-title":"Journal of Autism and Developmental Disorders","DOI":"10.1007/s10803-015-2384-y","ISSN":"1573-3432","issue":"7","journalAbbreviation":"J Autism Dev Disord","language":"en","page":"2277-2278","source":"Springer Link","title":"Shifting Diagnostic Systems for Defining Intellectual Disability in Death Penalty Cases: Hall vs. Florida","title-short":"Shifting Diagnostic Systems for Defining Intellectual Disability in Death Penalty Cases","volume":"45","author":[{"family":"Mukherjee","given":"Mina"},{"family":"Westphal","given":"Alexander"}],"issued":{"date-parts":[["2015",7,1]]}}},{"id":6170,"uris":["http://zotero.org/users/8253372/items/K925TLKP"],"itemData":{"id":6170,"type":"article-journal","abstract":"When the U.S. Supreme Court held that persons with mental retardation (now called intellectual disability) could not be sentenced to death, it left the question of how to define the condition to the states. That issue was raised in Hall v. Florida, which challenged one state’s “bright-line rule” barring consideration of defendants with IQs over 70. In an endorsement of the professional consensus, the justices ruled that a more flexible approach that takes into account both intellectual and adaptive functioning is required. The Court’s posture may bode well for its acceptance of mental health expertise in future cases.","container-title":"Psychiatric Services","DOI":"10.1176/appi.ps.651004","ISSN":"1075-2730","issue":"10","journalAbbreviation":"PS","note":"publisher: American Psychiatric Publishing","page":"1186-1188","source":"ps.psychiatryonline.org (Atypon)","title":"Hall v. Florida: Defining Intellectual Disability in the Shadow of the Death Penalty","title-short":"Law & Psychiatry","volume":"65","author":[{"family":"Appelbaum","given":"Paul S."}],"issued":{"date-parts":[["2014",10]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Ian Freckelton QC, ‘Offenders with Intellectual and Developmental Disabilities: Sentencing Challenges after the Abolition of Execution in the United States’ (2016) 23 Psychiatry, Psychology and Law 321; Mina Mukherjee and Alexander Westphal, ‘Shifting Diagnostic Systems for Defining Intellectual Disability in Death Penalty Cases: Hall vs. Florida’ (2015) 45 Journal of Autism and Developmental Disorders 2277; Paul S Appelbaum, ‘Hall v. Florida: Defining Intellectual Disability in the Shadow of the Death Penalty’ (2014) 65 Psychiatric Services 1186. Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] 2 SLR 211 at [57] (“[T]here is no basis for holding that… the Convention on the Rights of Persons with Disabilities (“CRPD”) have the force of law in Singapore absent the adoption of these principles and provisions into the domestic legislative framework. This is so because ours is a dualist regime... While the CRPD was ratified by Singapore on 18 July 2013… we reiterate that under the Westminster system of government, the Executive, which has the authority to sign treaties, may commit the State to such treaties without obtaining prior legislative approval. If treaties were self-executing, this would allow the Executive to usurp the legislative power of Parliament…”). ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"cnuMLtuT","properties":{"formattedCitation":"Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014) Article 12: Equal recognition before the law 2014 1.","plainCitation":"Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014) Article 12: Equal recognition before the law 2014 1.","noteIndex":8},"citationItems":[{"id":2531,"uris":["http://zotero.org/users/8253372/items/YH6T384K"],"itemData":{"id":2531,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/1","title":"General comment No. 1 (2014) Article 12: Equal recognition before the law","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2014",5,19]]}},"locator":"1"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014) Article 12: Equal recognition before the law CRPD/C/GC/1, 2014, 1. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"iYd6kyxW","properties":{"formattedCitation":"Michael L Perlin, \\uc0\\u8216{}Understanding the Intersection between International Human Rights and Mental Disability Law: The Role of Dignity\\uc0\\u8217{} in Bruce Arrigo and Heather Bersot (eds), {\\i{}The Routledge Handbook of International Crime and Justice Studies} (1st edn, Routledge 2013); Michael L Perlin, {\\i{}A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law} (Ashgate Publishing Limited 2013); Michael L Perlin, \\uc0\\u8216{}\\uc0\\u8220{}There Must Be Some Way Out of Here\\uc0\\u8221{}: Why the Convention on the Rights of Persons With Disabilities Is Potentially the Best Weapon in the Fight Against Sanism\\uc0\\u8217{} (2013) 20 Psychiatry, Psychology and Law 462.","plainCitation":"Michael L Perlin, ‘Understanding the Intersection between International Human Rights and Mental Disability Law: The Role of Dignity’ in Bruce Arrigo and Heather Bersot (eds), The Routledge Handbook of International Crime and Justice Studies (1st edn, Routledge 2013); Michael L Perlin, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (Ashgate Publishing Limited 2013); Michael L Perlin, ‘“There Must Be Some Way Out of Here”: Why the Convention on the Rights of Persons With Disabilities Is Potentially the Best Weapon in the Fight Against Sanism’ (2013) 20 Psychiatry, Psychology and Law 462.","noteIndex":9},"citationItems":[{"id":3958,"uris":["http://zotero.org/users/8253372/items/XEWQJFE6"],"itemData":{"id":3958,"type":"chapter","container-title":"The Routledge Handbook of International Crime and Justice Studies","edition":"1st","language":"en","page":"191-210","publisher":"Routledge","source":"Zotero","title":"Understanding the intersection between international human rights and mental disability law: the role of dignity","author":[{"family":"Perlin","given":"Michael L"}],"editor":[{"family":"Arrigo","given":"Bruce"},{"family":"Bersot","given":"Heather"}],"issued":{"date-parts":[["2013"]]}},"label":"page"},{"id":3587,"uris":["http://zotero.org/users/8253372/items/J9SPSR88"],"itemData":{"id":3587,"type":"book","call-number":"K640 .P49 2013","event-place":"Surrey, England","ISBN":"978-0-7546-7724-6","language":"en","publisher":"Ashgate Publishing Limited","publisher-place":"Surrey, England","source":"Library of Congress ISBN","title":"A prescription for dignity: Rethinking criminal justice and mental disability law","title-short":"A prescription for dignity","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2013"]]}}},{"id":2509,"uris":["http://zotero.org/users/8253372/items/WWY4RASJ"],"itemData":{"id":2509,"type":"article-journal","abstract":"It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define “sanism” as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, 1 that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses. 2 Notwithstanding over two decades of anti-discrimination laws 3 and, in many jurisdictions, an impressive corpus of constitutional case law and state statutes, 4 the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law half a century ago. 5 The reasons for this are complex and, to a great extent, flow from centuries of prejudice – often hidden prejudice, often socially acceptable prejudice 6 – that has persisted in spite of prophylactic legislative and judicial reforms, and – at least superficially – an apparent uptick in public awareness. I have railed multiple times about the “irrational,” “corrosive”, “malignant” and “ravaging” effects of sanism, but its “pernicious power” still poisons all of mental disability law. 7 The recently-ratified Convention on the Rights of Persons with Disabilities (CRPD) is the most revolutionary international human rights document – ever – that applies to persons with disabilities. The Disability Convention furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life. It firmly endorses a social model of disability – a clear and direct repudiation of the medical model that traditionally was part-and-parcel of mental disability law. It calls for “respect for inherent dignity” and “non-discrimination.” Subsequent articles declare “freedom from torture or cruel, inhuman or degrading treatment or punishment,” “freedom from exploitation, violence and abuse,” and a right to protection of the “integrity of the person.” In this paper, I consider the impact that the Convention is likely to have on sanism. First, I will briefly discuss both our sanist past and our sanist present. Then, I will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In this latter inquiry, I will also draw on the tools of therapeutic jurisprudence. Then, I will offer some brief and modest conclusions.","container-title":"Psychiatry, Psychology and Law","DOI":"10.1080/13218719.2013.791219","ISSN":"1321-8719","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/13218719.2013.791219","page":"462-476","source":"Taylor and Francis+NEJM","title":"“There Must be Some Way Out of Here”: Why the Convention on the Rights of Persons With Disabilities is Potentially the Best Weapon in the Fight Against Sanism","title-short":"“There Must be Some Way Out of Here”","volume":"20","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2013",6,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Michael L Perlin, ‘Understanding the Intersection between International Human Rights and Mental Disability Law: The Role of Dignity’ in Bruce Arrigo and Heather Bersot (eds), The Routledge Handbook of International Crime and Justice Studies (1st edn, Routledge 2013); Michael L Perlin, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (Ashgate Publishing Limited 2013); Michael L Perlin, ‘“There Must Be Some Way Out of Here”: Why the Convention on the Rights of Persons With Disabilities Is Potentially the Best Weapon in the Fight Against Sanism’ (2013) 20 Psychiatry, Psychology and Law 462. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"aL2dHgVQ","properties":{"formattedCitation":"Committee on the Rights of Persons with Disabilities General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8); Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities 2015.","plainCitation":"Committee on the Rights of Persons with Disabilities General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8); Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities 2015.","noteIndex":10},"citationItems":[{"id":2531,"uris":["http://zotero.org/users/8253372/items/YH6T384K"],"itemData":{"id":2531,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/1","title":"General comment No. 1 (2014) Article 12: Equal recognition before the law","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2014",5,19]]}}},{"id":2542,"uris":["http://zotero.org/users/8253372/items/PFKJZYYH"],"itemData":{"id":2542,"type":"bill","authority":"Committee on the Rights of Persons with Disabilities","chapter-number":"14th Session","language":"en","title":"Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2015",9]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Committee on the Rights of Persons with Disabilities General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8); Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities 2015. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"p5O9qLqb","properties":{"formattedCitation":"Syeda Hashmi, Deborah Richards and J Paul Fedoroff, \\uc0\\u8216{}A Descriptive Analysis of Sentencing Decisions by the Canadian Criminal Justice System of People with Intellectual Disabilities Convicted with Sexual Offences\\uc0\\u8217{} (2021) 78 International Journal of Law and Psychiatry 101730; Michael Mullan, \\uc0\\u8216{}How Should Mental Illness Be Relevant to Sentencing\\uc0\\u8217{} (2018) 88 Mississippi Law Journal 255; Perlin, {\\i{}A Prescription for Dignity} (n 9) 193\\uc0\\u8211{}215; Eunice Chua, \\uc0\\u8216{}Sentencing Mentally Disordered Offenders: Lessons from the US and Singapore\\uc0\\u8217{} (2011) 23 Singapore Academy of Law Journal 434; Judith Cockram, \\uc0\\u8216{}Justice or Differential Treatment? Sentencing of Offenders with an Intellectual Disability\\uc0\\u8217{} (2005) 30 Journal of Intellectual & Developmental Disability 3.","plainCitation":"Syeda Hashmi, Deborah Richards and J Paul Fedoroff, ‘A Descriptive Analysis of Sentencing Decisions by the Canadian Criminal Justice System of People with Intellectual Disabilities Convicted with Sexual Offences’ (2021) 78 International Journal of Law and Psychiatry 101730; Michael Mullan, ‘How Should Mental Illness Be Relevant to Sentencing’ (2018) 88 Mississippi Law Journal 255; Perlin, A Prescription for Dignity (n 9) 193–215; Eunice Chua, ‘Sentencing Mentally Disordered Offenders: Lessons from the US and Singapore’ (2011) 23 Singapore Academy of Law Journal 434; Judith Cockram, ‘Justice or Differential Treatment? Sentencing of Offenders with an Intellectual Disability’ (2005) 30 Journal of Intellectual & Developmental Disability 3.","noteIndex":11},"citationItems":[{"id":6142,"uris":["http://zotero.org/users/8253372/items/X4RIN4HS"],"itemData":{"id":6142,"type":"article-journal","abstract":"This study reviews sentencing decisions of people diagnosed with intellectual disabilities who have been convicted of sexual offences by judges in Canada. Given the prevalence of people with intellectual disabilities managed within the criminal justice system (CJS), courts have increasingly been faced with issues concerning appropriate sentencing. In addition, many people with intellectual disabilities have complex social and medical backgrounds that require multidisciplinary perspectives to account for each person's legal and moral culpability, which in turn influences sentencing decisions, including placement in prisons versus rehabilitation programs. The legal databases Canlii and LexisNexis Quicklaw were used to search full text judgements from Canadian courts for adults (over the age of 18) diagnosed with an intellectual disability and charged with a sexual offence. In total, 61 cases were included within the full-text review. These cases were analyzed based on the accused's demographics, past social history, past medical history, current diagnoses, past criminal record, current charges, mitigating/aggravating factors, use of a Gladue report, sentence, and other pertinent information that contributed to the final judgement. Recommendations on how to increase the effectiveness of the CJS in trying and sentencing people with intellectual disabilities are made based on the findings of this study.","container-title":"International Journal of Law and Psychiatry","DOI":"10.1016/j.ijlp.2021.101730","ISSN":"0160-2527","journalAbbreviation":"International Journal of Law and Psychiatry","language":"en","page":"101730","source":"ScienceDirect","title":"A descriptive analysis of sentencing decisions by the Canadian criminal justice system of people with intellectual disabilities convicted with sexual offences","volume":"78","author":[{"family":"Hashmi","given":"Syeda"},{"family":"Richards","given":"Deborah"},{"family":"Fedoroff","given":"J. Paul"}],"issued":{"date-parts":[["2021",9,1]]}}},{"id":2519,"uris":["http://zotero.org/users/8253372/items/LH6QTDLX"],"itemData":{"id":2519,"type":"article-journal","container-title":"Mississippi Law Journal","issue":"3","journalAbbreviation":"Miss. L.J.","language":"eng","page":"255-280","source":"HeinOnline","title":"How Should Mental Illness Be Relevant to Sentencing","volume":"88","author":[{"family":"Mullan","given":"Michael"}],"issued":{"date-parts":[["2018"]],"season":"2020"}}},{"id":3587,"uris":["http://zotero.org/users/8253372/items/J9SPSR88"],"itemData":{"id":3587,"type":"book","call-number":"K640 .P49 2013","event-place":"Surrey, England","ISBN":"978-0-7546-7724-6","language":"en","publisher":"Ashgate Publishing Limited","publisher-place":"Surrey, England","source":"Library of Congress ISBN","title":"A prescription for dignity: Rethinking criminal justice and mental disability law","title-short":"A prescription for dignity","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2013"]]}},"locator":"193-215"},{"id":2165,"uris":["http://zotero.org/users/8253372/items/HP22Z3CZ"],"itemData":{"id":2165,"type":"article-journal","container-title":"Singapore Academy of Law Journal","page":"434","title":"Sentencing Mentally Disordered Offenders: Lessons from the US and Singapore","volume":"23","author":[{"family":"Chua","given":"Eunice"}],"issued":{"date-parts":[["2011"]]}}},{"id":6141,"uris":["http://zotero.org/users/8253372/items/ALI845HW"],"itemData":{"id":6141,"type":"article-journal","abstract":"Background This paper reports on court outcomes for people with an intellectual disability in comparison with other offenders. It is part of a longitudinal study where it was possible to examine all levels of the criminal justice system, that is, from arrest to court appearance and finally to conviction. The study is based on the summation of nearly 11 years of data, from 1 April 1984 to 31 December 1994.Method Using comprehensive databases, a group of offenders with intellectual disability (n = 843) was “tracked” through the criminal justice system to assess their criminal history and compare it with a cohort of general population offenders (n = 2442).Results The findings show that at the sentencing stage of the court process people with intellectual disability are treated differently from others. There was no difference between the two groups in the proportion who were convicted, that is, where a penalty was imposed by the courts. However, there were considerable disparities between groups for the types of penalties imposed. The nature of the charge does not offer an adequate explanation for this.Conclusion A crucial finding is that it appears that the initial police decision to charge seems to have an enduring, albeit indirect effect at the final stage of disposition.","container-title":"Journal of Intellectual & Developmental Disability","DOI":"10.1080/13668250500033177","ISSN":"1366-8250","issue":"1","note":"publisher: Taylor & Francis\n_eprint: https://doi.org/10.1080/13668250500033177","page":"3-13","source":"Taylor and Francis+NEJM","title":"Justice or differential treatment? Sentencing of offenders with an intellectual disability","title-short":"Justice or differential treatment?","volume":"30","author":[{"family":"Cockram","given":"Judith"}],"issued":{"date-parts":[["2005",3,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Syeda Hashmi, Deborah Richards and J Paul Fedoroff, ‘A Descriptive Analysis of Sentencing Decisions by the Canadian Criminal Justice System of People with Intellectual Disabilities Convicted with Sexual Offences’ (2021) 78 International Journal of Law and Psychiatry 101730; Michael Mullan, ‘How Should Mental Illness Be Relevant to Sentencing’ (2018) 88 Mississippi Law Journal 255; Perlin, A Prescription for Dignity (n 9) 193–215; Eunice Chua, ‘Sentencing Mentally Disordered Offenders: Lessons from the US and Singapore’ (2011) 23 Singapore Academy of Law Journal 434; Judith Cockram, ‘Justice or Differential Treatment? Sentencing of Offenders with an Intellectual Disability’ (2005) 30 Journal of Intellectual & Developmental Disability 3. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"l42w0OyG","properties":{"formattedCitation":"Tina Minkowitz, \\uc0\\u8216{}Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and Beyond\\uc0\\u8217{} (2014) 23 Griffith Law Review 434; Piers Gooding and Charles O\\uc0\\u8217{}Mahony, \\uc0\\u8216{}Laws on Unfitness to Stand Trial and the UN Convention on the Rights of Persons with Disabilities: Comparing Reform in England, Wales, Northern Ireland and Australia\\uc0\\u8217{} (2016) 44 International Journal of Law, Crime and Justice 122; Anna Arstein-Kerslake and others, \\uc0\\u8216{}Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities\\uc0\\u8217{} (2017) 17 Human Rights Law Review 399; Michael L Perlin, \\uc0\\u8216{}God Said to Abraham/Kill Me a Son: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence\\uc0\\u8217{} (2017) 54 American Criminal Law Review 477; Meron Wondemaghen, \\uc0\\u8216{}Testing Equality: Insanity, Treatment Refusal and the CRPD\\uc0\\u8217{} (2018) 25 Psychiatry, Psychology and Law 174; Donna Marie McNamara, \\uc0\\u8216{}The Insanity Defence, Indefinite Detention and the UN Convention on the Rights of Persons with Disabilities\\uc0\\u8217{} (2018) 41 Dublin University Law Journal 143.","plainCitation":"Tina Minkowitz, ‘Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and Beyond’ (2014) 23 Griffith Law Review 434; Piers Gooding and Charles O’Mahony, ‘Laws on Unfitness to Stand Trial and the UN Convention on the Rights of Persons with Disabilities: Comparing Reform in England, Wales, Northern Ireland and Australia’ (2016) 44 International Journal of Law, Crime and Justice 122; Anna Arstein-Kerslake and others, ‘Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities’ (2017) 17 Human Rights Law Review 399; Michael L Perlin, ‘God Said to Abraham/Kill Me a Son: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence’ (2017) 54 American Criminal Law Review 477; Meron Wondemaghen, ‘Testing Equality: Insanity, Treatment Refusal and the CRPD’ (2018) 25 Psychiatry, Psychology and Law 174; Donna Marie McNamara, ‘The Insanity Defence, Indefinite Detention and the UN Convention on the Rights of Persons with Disabilities’ (2018) 41 Dublin University Law Journal 143.","noteIndex":12},"citationItems":[{"id":469,"uris":["http://zotero.org/users/8253372/items/3IZ2SWJK"],"itemData":{"id":469,"type":"article-journal","abstract":"Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.","container-title":"Griffith Law Review","DOI":"10.1080/10383441.2014.1013177","ISSN":"1038-3441","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/10383441.2014.1013177","page":"434-466","source":"Taylor and Francis+NEJM","title":"Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond","title-short":"Rethinking criminal responsibility from a critical disability perspective","volume":"23","author":[{"family":"Minkowitz","given":"Tina"}],"issued":{"date-parts":[["2014",7,3]]}}},{"id":2515,"uris":["http://zotero.org/users/8253372/items/URBT9IBP"],"itemData":{"id":2515,"type":"article-journal","abstract":"The laws on unfitness to stand in criminal trials have not been examined in great detail by scholars since the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) in 2008. This is perhaps surprising given the considerable law reform activity on unfitness to stand trial laws in a number of common law countries during this period. After all, persons with disabilities are more likely to be deemed unfit to stand trial. Indeed the aim of rules on unfitness to stand trial is to prevent disadvantage flowing from mental impairments. However, the consequence of an unfitness determination in criminal trials can result in a person being detained in a prison, psychiatric setting or being subject to a coercive supervision order for longer periods than if there had been conviction and maximum sentencing. Equally, there remain defendants who do not meet the definition of unfit to stand trial yet still appear neither to understand or meaningfully participate in proceedings against them. A key recommendation of law reform agencies to prevent this discrimination in recent years is to introduce functional assessments of mental capacity to replace out-dated standards for judging unfitness to stand trial. Yet paradoxically, this conclusion runs counter to the CRPD, as interpreted by the UN Committee on the Rights of Persons with Disabilities (‘CRPD Committee’), which calls for the introduction of alternative frameworks for ensuring equal recognition before the law, access to justice and the right to liberty and security of the person for people with disabilities. Law reform activity in England, Wales, Northern Ireland and Australia will be drawn upon to support the discussion. This paper seeks to clarify the major issues as a first step in reconciling the sometimes conflicting reform trends in domestic and international human rights law regarding unfitness to plead laws.","container-title":"International Journal of Law, Crime and Justice","DOI":"10.1016/j.ijlcj.2015.07.002","ISSN":"1756-0616","journalAbbreviation":"International Journal of Law, Crime and Justice","language":"en","page":"122-145","source":"ScienceDirect","title":"Laws on unfitness to stand trial and the UN Convention on the Rights of Persons with Disabilities: Comparing reform in England, Wales, Northern Ireland and Australia","title-short":"Laws on unfitness to stand trial and the UN Convention on the Rights of Persons with Disabilities","volume":"44","author":[{"family":"Gooding","given":"Piers"},{"family":"O'Mahony","given":"Charles"}],"issued":{"date-parts":[["2016",3,1]]}}},{"id":2161,"uris":["http://zotero.org/users/8253372/items/5EEHFEZV"],"itemData":{"id":2161,"type":"article-journal","abstract":"Findings of unfitness to plead can result in individuals with cognitive disabilities losing access to procedural safeguards in the criminal justice system. 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Rev.","language":"eng","page":"477-520","source":"HeinOnline","title":"God Said to Abraham/Kill Me a Son: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence","title-short":"God Said to Abraham/Kill Me a Son","volume":"54","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2017"]]}}},{"id":2139,"uris":["http://zotero.org/users/8253372/items/C6BQZKP4"],"itemData":{"id":2139,"type":"article-journal","abstract":"The Convention on the Rights of Persons with Disabilities is considered to be a radical international treaty that affords persons with disability recognition and protection of equal rights in socio-cultural, political, medical and legal arenas. 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This article interrogates the rationale behind ‘abolitionist’ views, and asks whether equality necessarily means treating all persons identically regardless of capacity to reason about conduct.","container-title":"Psychiatry, Psychology and Law","DOI":"10.1080/13218719.2017.1371575","ISSN":"1321-8719","issue":"2","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/13218719.2017.1371575","page":"174-185","source":"Taylor and Francis+NEJM","title":"Testing Equality: Insanity, Treatment Refusal and the CRPD","title-short":"Testing Equality","volume":"25","author":[{"family":"Wondemaghen","given":"Meron"}],"issued":{"date-parts":[["2018",3,4]]}}},{"id":2151,"uris":["http://zotero.org/users/8253372/items/2TY5E7M3"],"itemData":{"id":2151,"type":"article-journal","container-title":"Dublin University Law Journal","issue":"1","journalAbbreviation":"Dublin U. 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Steele shows that the United Nations Convention on the Rights of Persons with Disabilities cannot respond to the complexities of court diversion, suggesting the CRPD is of limited use in contesting carceral control and legal and settler colonial violence. The book not only offers new ways to understand relationships between disability, criminal justice and law; it also proposes theoretical and practical strategies that contribute to the development of a wider re-imagining of a more progressive and just socio-legal order. The book will be of interest to scholars and students of disability law, criminal law, medical law, socio-legal studies, disability studies, social work and criminology. It will also be of interest to disability, prisoner and social justice activists\"--","call-number":"K5077","collection-title":"Social justice","event-place":"London ; New York, NY","ISBN":"978-1-351-24033-8","language":"en","number-of-pages":"1","publisher":"Routledge/Taylor & Francis Group","publisher-place":"London ; New York, NY","source":"Library of Congress ISBN","title":"Disability, Criminal Justice and Law: Reconsidering Court Diversion","title-short":"Disability, criminal justice and law","author":[{"family":"Steele","given":"Linda"}],"issued":{"date-parts":[["2020"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Michael L Perlin, ‘“There Are No Trials Inside the Gates of Eden”: Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence’ in Bernadette Mcsherry and Ian Freckelton (eds), Coercive Care: Rights, Law and Policy (Routlege 2013); Priscilla Ferrazzi, Terry Krupa and Rosemary Lysaght, ‘Mental Health Courts, Court Diversion, and Canada’s Obligations under the United Nations Convention on the Rights of Persons with Disabilities’ (2013) 32 Canadian Journal of Community Mental Health 43; Linda Steele, Disability, Criminal Justice and Law: Reconsidering Court Diversion (Routledge/Taylor & Francis Group 2020). [2019] 1 SLR 941; [2019] SGCA 16. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"DSjtFRcC","properties":{"formattedCitation":"Steele (n 13) 63.","plainCitation":"Steele (n 13) 63.","noteIndex":15},"citationItems":[{"id":458,"uris":["http://zotero.org/users/8253372/items/4E8PMETX"],"itemData":{"id":458,"type":"book","abstract":"\"Through theoretical and empirical examination of legal frameworks for court diversion, this book interrogates law's complicity in the debilitation of disabled people. In a post-deinstitutionalisation era, diverting disabled people from criminal justice systems and into mental health and disability services is considered therapeutic, humane and socially just. Yet, by drawing on Foucauldian theory of biopolitics, critical legal and political theory and critical disability theory, Steele argues that court diversion continues disability oppression. It can facilitate criminalization, control and punishment of disabled people who are not sentenced and might not even be convicted of any criminal offences. On a broader level, court diversion contributes to the longstanding phenomenon of disability-specific coercive intervention, legitimates prison incarceration and shores up the boundaries of foundational legal concepts at the core of jurisdiction, legal personhood and sovereignty. Steele shows that the United Nations Convention on the Rights of Persons with Disabilities cannot respond to the complexities of court diversion, suggesting the CRPD is of limited use in contesting carceral control and legal and settler colonial violence. The book not only offers new ways to understand relationships between disability, criminal justice and law; it also proposes theoretical and practical strategies that contribute to the development of a wider re-imagining of a more progressive and just socio-legal order. The book will be of interest to scholars and students of disability law, criminal law, medical law, socio-legal studies, disability studies, social work and criminology. It will also be of interest to disability, prisoner and social justice activists\"--","call-number":"K5077","collection-title":"Social justice","event-place":"London ; New York, NY","ISBN":"978-1-351-24033-8","language":"en","number-of-pages":"1","publisher":"Routledge/Taylor & Francis Group","publisher-place":"London ; New York, NY","source":"Library of Congress ISBN","title":"Disability, Criminal Justice and Law: Reconsidering Court Diversion","title-short":"Disability, criminal justice and law","author":[{"family":"Steele","given":"Linda"}],"issued":{"date-parts":[["2020"]]}},"locator":"63","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Steele (n 13) 63. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"CR6PFMQ5","properties":{"formattedCitation":"Simone Rowe and Leanne Dowse, \\uc0\\u8216{}Enabling Penal Abolitionism: The Need for Reciprocal Dialogue between Critical Disability Studies and Penal Abolitionism\\uc0\\u8217{}, {\\i{}The Routledge International Handbook of Penal Abolition} (Routledge 2021).","plainCitation":"Simone Rowe and Leanne Dowse, ‘Enabling Penal Abolitionism: The Need for Reciprocal Dialogue between Critical Disability Studies and Penal Abolitionism’, The Routledge International Handbook of Penal Abolition (Routledge 2021).","noteIndex":16},"citationItems":[{"id":6062,"uris":["http://zotero.org/users/8253372/items/KRG4EEAT"],"itemData":{"id":6062,"type":"chapter","abstract":"The chapter argues for building a bridge between critical disability studies and penal abolitionism. Doing so enhances our capacity to conceptualise and resist the intersecting forces that have created one of the fastest growing groups in the penal estate: people with cognitive disability and/or mental health problems. The chapter unfolds in four main arguments. First, we establish the key theoretical and analytic insights from abolitionism and critical disability studies which indicate the contribution each can make to the other. The rarely acknowledged existing parallels between both fields are also discussed. We then consider the key obstacles that may prevent an easy alliance between the two fields: sections of the disability-based rights movement who seek to better accommodate disability needs within prisons and the related obfuscation of the fundamental role of social-structural injustice in the creation of penal subjects (including those with and without disability). Finally, we discuss the theoretical and practical benefits of developing a reciprocal dialogue between the two fields and how such work benefits the praxis of penal abolitionism.","container-title":"The Routledge International Handbook of Penal Abolition","ISBN":"978-0-429-42503-5","note":"number-of-pages: 11","publisher":"Routledge","title":"Enabling penal abolitionism: The need for reciprocal dialogue between critical disability studies and penal abolitionism","title-short":"Enabling penal abolitionism","author":[{"family":"Rowe","given":"Simone"},{"family":"Dowse","given":"Leanne"}],"issued":{"date-parts":[["2021"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Simone Rowe and Leanne Dowse, ‘Enabling Penal Abolitionism: The Need for Reciprocal Dialogue between Critical Disability Studies and Penal Abolitionism’, The Routledge International Handbook of Penal Abolition (Routledge 2021). ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"B984swz1","properties":{"formattedCitation":"Lauding disability convention as \\uc0\\u8216{}dawn of a new era,\\uc0\\u8217{} UN urges speedy ratification, , {\\scaps UN News} (2006), https://news.un.org/en/story/2006/12/203222-lauding-disability-convention-dawn-new-era-un-urges-speedy-ratification (last visited Oct 22, 2021).","plainCitation":"Lauding disability convention as ‘dawn of a new era,’ UN urges speedy ratification, , UN News (2006), https://news.un.org/en/story/2006/12/203222-lauding-disability-convention-dawn-new-era-un-urges-speedy-ratification (last visited Oct 22, 2021).","dontUpdate":true,"noteIndex":17},"citationItems":[{"id":739,"uris":["http://zotero.org/users/8253372/items/FEVK9SW9"],"itemData":{"id":739,"type":"webpage","abstract":"The General Assembly today adopted a landmark disability convention, the first human rights treaty of the twenty-first century and one that United Nations Secretary-General Kofi Annan said represents the “dawn of a new era” for around 650 million people worldwide living with disabilities.","container-title":"UN News","language":"en","title":"Lauding disability convention as ‘dawn of a new era,’ UN urges speedy ratification","URL":"https://news.un.org/en/story/2006/12/203222-lauding-disability-convention-dawn-new-era-un-urges-speedy-ratification","accessed":{"date-parts":[["2021",10,23]]},"issued":{"date-parts":[["2006",12,13]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Lauding disability convention as ‘dawn of a new era,’ UN urges speedy ratification, UN News (2006), https://news.un.org/en/story/2006/12/203222-lauding-disability-convention-dawn-new-era-un-urges-speedy-ratification (last visited Oct 22, 2021). “This dignitary perspective compels societies to acknowledge that persons with disabilities are valuable because of their inherent human worth rather than their net marginal product.” ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"BgwwfyFK","properties":{"formattedCitation":"Michael Ashley Stein, \\uc0\\u8216{}Disability Human Rights\\uc0\\u8217{} (2007) 95 California Law Review 75, 106.","plainCitation":"Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75, 106.","noteIndex":18},"citationItems":[{"id":3959,"uris":["http://zotero.org/users/8253372/items/ZMDFTWN5"],"itemData":{"id":3959,"type":"article-journal","container-title":"California Law Review","issue":"1","journalAbbreviation":"Calif. L. Rev.","language":"eng","page":"75-122","source":"HeinOnline","title":"Disability Human Rights","volume":"95","author":[{"family":"Stein","given":"Michael Ashley"}],"issued":{"date-parts":[["2007"]]}},"locator":"106"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75, 106. See ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Q1EsD9LJ","properties":{"formattedCitation":"Perlin, \\uc0\\u8216{}\\uc0\\u8220{}There Are No Trials Inside the Gates of Eden\\uc0\\u8221{}: Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence\\uc0\\u8217{} (n 13).","plainCitation":"Perlin, ‘“There Are No Trials Inside the Gates of Eden”: Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence’ (n 13).","noteIndex":19},"citationItems":[{"id":2177,"uris":["http://zotero.org/users/8253372/items/G7WRCEW7"],"itemData":{"id":2177,"type":"chapter","container-title":"Coercive Care: Rights, Law and Policy","publisher":"Routlege","title":"\"There Are No Trials Inside the Gates of Eden\": Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence","author":[{"family":"Perlin","given":"Michael L."}],"editor":[{"family":"Mcsherry","given":"Bernadette"},{"family":"Freckelton","given":"Ian"}],"issued":{"date-parts":[["2013"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Perlin, ‘“There Are No Trials Inside the Gates of Eden”: Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence’ (n 13). ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"DREA1pTJ","properties":{"formattedCitation":"Theresia Degener, \\uc0\\u8216{}Disability in a Human Rights Context\\uc0\\u8217{} (2016) 5 Laws 35, 3.","plainCitation":"Theresia Degener, ‘Disability in a Human Rights Context’ (2016) 5 Laws 35, 3.","noteIndex":20},"citationItems":[{"id":730,"uris":["http://zotero.org/users/8253372/items/L3TW8WMN"],"itemData":{"id":730,"type":"article-journal","abstract":"The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.","container-title":"Laws","DOI":"10.3390/laws5030035","issue":"3","language":"en","license":"http://creativecommons.org/licenses/by/3.0/","note":"number: 3\npublisher: Multidisciplinary Digital Publishing Institute","page":"35","source":"www.mdpi.com","title":"Disability in a Human Rights Context","volume":"5","author":[{"family":"Degener","given":"Theresia"}],"issued":{"date-parts":[["2016",9]]}},"locator":"3"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Theresia Degener, ‘Disability in a Human Rights Context’ (2016) 5 Laws 35, 3. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"QrG6qQ34","properties":{"formattedCitation":"ibid 4.","plainCitation":"ibid 4.","noteIndex":21},"citationItems":[{"id":730,"uris":["http://zotero.org/users/8253372/items/L3TW8WMN"],"itemData":{"id":730,"type":"article-journal","abstract":"The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.","container-title":"Laws","DOI":"10.3390/laws5030035","issue":"3","language":"en","license":"http://creativecommons.org/licenses/by/3.0/","note":"number: 3\npublisher: Multidisciplinary Digital Publishing Institute","page":"35","source":"www.mdpi.com","title":"Disability in a Human Rights Context","volume":"5","author":[{"family":"Degener","given":"Theresia"}],"issued":{"date-parts":[["2016",9]]}},"locator":"4"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ibid 4. (“The human rights model of disability defies the presumption that impairment may hinder human rights capacity.”) ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"6efqZJXK","properties":{"formattedCitation":"ibid 2.","plainCitation":"ibid 2.","noteIndex":22},"citationItems":[{"id":730,"uris":["http://zotero.org/users/8253372/items/L3TW8WMN"],"itemData":{"id":730,"type":"article-journal","abstract":"The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.","container-title":"Laws","DOI":"10.3390/laws5030035","issue":"3","language":"en","license":"http://creativecommons.org/licenses/by/3.0/","note":"number: 3\npublisher: Multidisciplinary Digital Publishing Institute","page":"35","source":"www.mdpi.com","title":"Disability in a Human Rights Context","volume":"5","author":[{"family":"Degener","given":"Theresia"}],"issued":{"date-parts":[["2016",9]]}},"locator":"2","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ibid 2. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"2DbuscWx","properties":{"formattedCitation":"{\\scaps Committee on the Rights of Persons with Disabilities}, {\\i{}General comment No. 6 (2018) on equality and non- discrimination}, {\\scaps CRPD/C/GC/6} 7 (2018).","plainCitation":"Committee on the Rights of Persons with Disabilities, General comment No. 6 (2018) on equality and non- discrimination, CRPD/C/GC/6 7 (2018).","dontUpdate":true,"noteIndex":23},"citationItems":[{"id":1301,"uris":["http://zotero.org/users/8253372/items/F7FK283L"],"itemData":{"id":1301,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/6","title":"General comment No. 6 (2018) on equality and non- discrimination","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2018",4,26]]}},"locator":"7","label":"paragraph"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8) para 13. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"OzeVKDkR","properties":{"formattedCitation":"Committee on the Rights of Persons with Disabilities General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8) para 13.","plainCitation":"Committee on the Rights of Persons with Disabilities General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8) para 13.","noteIndex":24},"citationItems":[{"id":2531,"uris":["http://zotero.org/users/8253372/items/YH6T384K"],"itemData":{"id":2531,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/1","title":"General comment No. 1 (2014) Article 12: Equal recognition before the law","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2014",5,19]]}},"locator":"13","label":"paragraph"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Committee on the Rights of Persons with Disabilities General comment No. 1 (2014) Article 12: Equal recognition before the law (n 8) para 13. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"eKtfha18","properties":{"formattedCitation":"ibid 32.","plainCitation":"ibid 32.","noteIndex":25},"citationItems":[{"id":2531,"uris":["http://zotero.org/users/8253372/items/YH6T384K"],"itemData":{"id":2531,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/1","title":"General comment No. 1 (2014) Article 12: Equal recognition before the law","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2014",5,19]]}},"locator":"32","label":"paragraph"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ibid 32. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"dM7IpfPE","properties":{"formattedCitation":"ibid 38.","plainCitation":"ibid 38.","noteIndex":26},"citationItems":[{"id":2531,"uris":["http://zotero.org/users/8253372/items/YH6T384K"],"itemData":{"id":2531,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/1","title":"General comment No. 1 (2014) Article 12: Equal recognition before the law","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2014",5,19]]}},"locator":"38","label":"paragraph"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ibid 38. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"t6YzCy2Y","properties":{"formattedCitation":"Committee on the Rights of Persons with Disabilities Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities (n 10) para 16.","plainCitation":"Committee on the Rights of Persons with Disabilities Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities (n 10) para 16.","noteIndex":27},"citationItems":[{"id":2542,"uris":["http://zotero.org/users/8253372/items/PFKJZYYH"],"itemData":{"id":2542,"type":"bill","authority":"Committee on the Rights of Persons with Disabilities","chapter-number":"14th Session","language":"en","title":"Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2015",9]]}},"locator":"16","label":"paragraph"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Committee on the Rights of Persons with Disabilities Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities (n 10) para 16. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"2VAxomcn","properties":{"formattedCitation":"Perlin, \\uc0\\u8216{}God Said to Abraham/Kill Me a Son\\uc0\\u8217{} (n 12) 480.","plainCitation":"Perlin, ‘God Said to Abraham/Kill Me a Son’ (n 12) 480.","noteIndex":28},"citationItems":[{"id":2507,"uris":["http://zotero.org/users/8253372/items/3FZE9KXJ"],"itemData":{"id":2507,"type":"article-journal","container-title":"American Criminal Law Review","issue":"2","journalAbbreviation":"Am. Crim. L. Rev.","language":"eng","page":"477-520","source":"HeinOnline","title":"God Said to Abraham/Kill Me a Son: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence","title-short":"God Said to Abraham/Kill Me a Son","volume":"54","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2017"]]}},"locator":"480","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Perlin, ‘God Said to Abraham/Kill Me a Son’ (n 12) 480. See also ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"rjRZJCVz","properties":{"formattedCitation":"Jillian Craigie, \\uc0\\u8216{}Against a Singular Understanding of Legal Capacity: Criminal Responsibility and the Convention on the Rights of Persons with Disabilities\\uc0\\u8217{} (2015) 40 International Journal of Law and Psychiatry 6; Wondemaghen (n 12).","plainCitation":"Jillian Craigie, ‘Against a Singular Understanding of Legal Capacity: Criminal Responsibility and the Convention on the Rights of Persons with Disabilities’ (2015) 40 International Journal of Law and Psychiatry 6; Wondemaghen (n 12).","noteIndex":28},"citationItems":[{"id":2142,"uris":["http://zotero.org/users/8253372/items/7DPYN7I2"],"itemData":{"id":2142,"type":"article-journal","abstract":"The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is being used to argue for wider recognition of the legal capacity of people with mental disabilities. This raises a question about the implications of the Convention for attributions of criminal responsibility. The present paper works towards an answer by analysing the relationship between legal capacity in relation to personal decisions and criminal acts. Its central argument is that because moral and political considerations play an essential role in setting the relevant standards, legal capacity in the context of personal decisions and criminal acts should not be thought of as two sides of the same coin. The implications of particular moral or political norms are likely to be different in these two legal contexts, and this may justify asymmetries in the relevant standards for legal capacity. However, the analysis highlights a fundamental question about how much weight moral or political considerations should be given in setting these standards, and this is used to frame a challenge to those calling for significantly wider recognition of the legal capacity of people with mental disabilities on the basis of the Convention.","collection-title":"Mental Capacities and Legal Responsibilities","container-title":"International Journal of Law and Psychiatry","DOI":"10.1016/j.ijlp.2015.04.002","ISSN":"0160-2527","journalAbbreviation":"International Journal of Law and Psychiatry","language":"en","page":"6-14","source":"ScienceDirect","title":"Against a singular understanding of legal capacity: Criminal responsibility and the Convention on the Rights of Persons with Disabilities","title-short":"Against a singular understanding of legal capacity","volume":"40","author":[{"family":"Craigie","given":"Jillian"}],"issued":{"date-parts":[["2015",5,1]]}}},{"id":2139,"uris":["http://zotero.org/users/8253372/items/C6BQZKP4"],"itemData":{"id":2139,"type":"article-journal","abstract":"The Convention on the Rights of Persons with Disabilities is considered to be a radical international treaty that affords persons with disability recognition and protection of equal rights in socio-cultural, political, medical and legal arenas. Drawing from the Convention's core principles of equality and non-discrimination, the High Commissioner for Human Rights and the Convention's Committee have called for a replacement of the insanity defence with a disability-neutral doctrine. The rationale is that retaining this special defence is, in itself, discriminatory, given its function is necessarily based on the presence of mental disability and the assumption that such disabilities impair capacity and reasoning. This article interrogates the rationale behind ‘abolitionist’ views, and asks whether equality necessarily means treating all persons identically regardless of capacity to reason about conduct.","container-title":"Psychiatry, Psychology and Law","DOI":"10.1080/13218719.2017.1371575","ISSN":"1321-8719","issue":"2","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/13218719.2017.1371575","page":"174-185","source":"Taylor and Francis+NEJM","title":"Testing Equality: Insanity, Treatment Refusal and the CRPD","title-short":"Testing Equality","volume":"25","author":[{"family":"Wondemaghen","given":"Meron"}],"issued":{"date-parts":[["2018",3,4]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Jillian Craigie, ‘Against a Singular Understanding of Legal Capacity: Criminal Responsibility and the Convention on the Rights of Persons with Disabilities’ (2015) 40 International Journal of Law and Psychiatry 6; Wondemaghen (n 12). ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Gz7VisPL","properties":{"formattedCitation":"Minkowitz (n 12) 447.","plainCitation":"Minkowitz (n 12) 447.","noteIndex":29},"citationItems":[{"id":469,"uris":["http://zotero.org/users/8253372/items/3IZ2SWJK"],"itemData":{"id":469,"type":"article-journal","abstract":"Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.","container-title":"Griffith Law Review","DOI":"10.1080/10383441.2014.1013177","ISSN":"1038-3441","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/10383441.2014.1013177","page":"434-466","source":"Taylor and Francis+NEJM","title":"Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond","title-short":"Rethinking criminal responsibility from a critical disability perspective","volume":"23","author":[{"family":"Minkowitz","given":"Tina"}],"issued":{"date-parts":[["2014",7,3]]}},"locator":"447","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Minkowitz (n 12) 447. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"7M1XBcXD","properties":{"formattedCitation":"ibid 455.","plainCitation":"ibid 455.","noteIndex":30},"citationItems":[{"id":469,"uris":["http://zotero.org/users/8253372/items/3IZ2SWJK"],"itemData":{"id":469,"type":"article-journal","abstract":"Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.","container-title":"Griffith Law Review","DOI":"10.1080/10383441.2014.1013177","ISSN":"1038-3441","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/10383441.2014.1013177","page":"434-466","source":"Taylor and Francis+NEJM","title":"Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond","title-short":"Rethinking criminal responsibility from a critical disability perspective","volume":"23","author":[{"family":"Minkowitz","given":"Tina"}],"issued":{"date-parts":[["2014",7,3]]}},"locator":"455","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ibid 455. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Oefv7imN","properties":{"formattedCitation":"ibid 456\\uc0\\u8211{}457.","plainCitation":"ibid 456–457.","noteIndex":31},"citationItems":[{"id":469,"uris":["http://zotero.org/users/8253372/items/3IZ2SWJK"],"itemData":{"id":469,"type":"article-journal","abstract":"Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.","container-title":"Griffith Law Review","DOI":"10.1080/10383441.2014.1013177","ISSN":"1038-3441","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/10383441.2014.1013177","page":"434-466","source":"Taylor and Francis+NEJM","title":"Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond","title-short":"Rethinking criminal responsibility from a critical disability perspective","volume":"23","author":[{"family":"Minkowitz","given":"Tina"}],"issued":{"date-parts":[["2014",7,3]]}},"locator":"456 - 457","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} ibid 456–457. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"KIVOIUjj","properties":{"formattedCitation":"Perlin, \\uc0\\u8216{}God Said to Abraham/Kill Me a Son\\uc0\\u8217{} (n 12) 481.","plainCitation":"Perlin, ‘God Said to Abraham/Kill Me a Son’ (n 12) 481.","noteIndex":32},"citationItems":[{"id":2507,"uris":["http://zotero.org/users/8253372/items/3FZE9KXJ"],"itemData":{"id":2507,"type":"article-journal","container-title":"American Criminal Law Review","issue":"2","journalAbbreviation":"Am. Crim. L. Rev.","language":"eng","page":"477-520","source":"HeinOnline","title":"God Said to Abraham/Kill Me a Son: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence","title-short":"God Said to Abraham/Kill Me a Son","volume":"54","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2017"]]}},"locator":"481","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Perlin, ‘God Said to Abraham/Kill Me a Son’ (n 12) 481. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"finulf9G","properties":{"formattedCitation":"Minkowitz (n 12) 458.","plainCitation":"Minkowitz (n 12) 458.","noteIndex":33},"citationItems":[{"id":469,"uris":["http://zotero.org/users/8253372/items/3IZ2SWJK"],"itemData":{"id":469,"type":"article-journal","abstract":"Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.","container-title":"Griffith Law Review","DOI":"10.1080/10383441.2014.1013177","ISSN":"1038-3441","issue":"3","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/10383441.2014.1013177","page":"434-466","source":"Taylor and Francis+NEJM","title":"Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond","title-short":"Rethinking criminal responsibility from a critical disability perspective","volume":"23","author":[{"family":"Minkowitz","given":"Tina"}],"issued":{"date-parts":[["2014",7,3]]}},"locator":"458","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Minkowitz (n 12) 458. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"CGRd0BQq","properties":{"formattedCitation":"Steele (n 13) 73.","plainCitation":"Steele (n 13) 73.","noteIndex":34},"citationItems":[{"id":458,"uris":["http://zotero.org/users/8253372/items/4E8PMETX"],"itemData":{"id":458,"type":"book","abstract":"\"Through theoretical and empirical examination of legal frameworks for court diversion, this book interrogates law's complicity in the debilitation of disabled people. In a post-deinstitutionalisation era, diverting disabled people from criminal justice systems and into mental health and disability services is considered therapeutic, humane and socially just. Yet, by drawing on Foucauldian theory of biopolitics, critical legal and political theory and critical disability theory, Steele argues that court diversion continues disability oppression. It can facilitate criminalization, control and punishment of disabled people who are not sentenced and might not even be convicted of any criminal offences. On a broader level, court diversion contributes to the longstanding phenomenon of disability-specific coercive intervention, legitimates prison incarceration and shores up the boundaries of foundational legal concepts at the core of jurisdiction, legal personhood and sovereignty. Steele shows that the United Nations Convention on the Rights of Persons with Disabilities cannot respond to the complexities of court diversion, suggesting the CRPD is of limited use in contesting carceral control and legal and settler colonial violence. The book not only offers new ways to understand relationships between disability, criminal justice and law; it also proposes theoretical and practical strategies that contribute to the development of a wider re-imagining of a more progressive and just socio-legal order. The book will be of interest to scholars and students of disability law, criminal law, medical law, socio-legal studies, disability studies, social work and criminology. It will also be of interest to disability, prisoner and social justice activists\"--","call-number":"K5077","collection-title":"Social justice","event-place":"London ; New York, NY","ISBN":"978-1-351-24033-8","language":"en","number-of-pages":"1","publisher":"Routledge/Taylor & Francis Group","publisher-place":"London ; New York, NY","source":"Library of Congress ISBN","title":"Disability, Criminal Justice and Law: Reconsidering Court Diversion","title-short":"Disability, criminal justice and law","author":[{"family":"Steele","given":"Linda"}],"issued":{"date-parts":[["2020"]]}},"locator":"73","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Steele (n 13) 73. See, for example ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Wu8m0MN5","properties":{"formattedCitation":"Liat Ben-Moshe, {\\i{}Decarcerating Disability: Deinstitutionalization and Prison Abolition} (University of Minnesota Press 2020); Shannon Dodd and others, \\uc0\\u8216{}The Forgotten Prisoners: Exploring the Impact of Imprisonment on People with Disability in Australia\\uc0\\u8217{} [2022] Criminology & Criminal Justice 17488958221120896; \\uc0\\u8216{}Cripping Abolition\\uc0\\u8217{} ({\\i{}The Abolition and Disability Justice Coalition}, 6 August 2020) <https://abolitionanddisabilityjustice.com/opening/> accessed 6 May 2023; Maya Goldman and Lucy Trieshmann, \\uc0\\u8216{}The Breaking Point: A Critical Disability Analysis of Abolition\\uc0\\u8217{} (2021) 169 University of Pennsylvania Law Review; Rowe and Dowse (n 16).","plainCitation":"Liat Ben-Moshe, Decarcerating Disability: Deinstitutionalization and Prison Abolition (University of Minnesota Press 2020); Shannon Dodd and others, ‘The Forgotten Prisoners: Exploring the Impact of Imprisonment on People with Disability in Australia’ [2022] Criminology & Criminal Justice 17488958221120896; ‘Cripping Abolition’ (The Abolition and Disability Justice Coalition, 6 August 2020) <https://abolitionanddisabilityjustice.com/opening/> accessed 6 May 2023; Maya Goldman and Lucy Trieshmann, ‘The Breaking Point: A Critical Disability Analysis of Abolition’ (2021) 169 University of Pennsylvania Law Review; Rowe and Dowse (n 16).","noteIndex":35},"citationItems":[{"id":457,"uris":["http://zotero.org/users/8253372/items/A5N25YIR"],"itemData":{"id":457,"type":"book","abstract":"\"Politics of (En)closure: Deinstitutionalization, Disability, and Prison Abolition argues that a complex understanding of disability is fundamental to an understanding of decarceration. Many argue that the rise of deinstitutionalization led directly to the rise of imprisonment. Liat Ben-Moshe complicates this narrative by looking closely at how people of color and disabled people are pathologized as well as how profit plays a roll in caring for \"disposable\" populations in nursing homes, rehab facilities, prisons, etc. Ben-Moshe puts forth a theory of carceral abolition as a way to understand the failed utopian dream of deinstitutionalization and how to move forward\"--","call-number":"HV1553 .B46 2020","event-place":"Minneapolis","ISBN":"978-1-5179-0442-5","language":"en","publisher":"University of Minnesota Press","publisher-place":"Minneapolis","source":"Library of Congress ISBN","title":"Decarcerating disability: deinstitutionalization and prison abolition","title-short":"Decarcerating disability","author":[{"family":"Ben-Moshe","given":"Liat"}],"issued":{"date-parts":[["2020"]]}}},{"id":6178,"uris":["http://zotero.org/users/8253372/items/7JEBEB73"],"itemData":{"id":6178,"type":"article-journal","abstract":"People with disability represent a significant proportion of Australia’s prison population; however, little is known about their experiences or the institutional barriers they may face. Drawing from 24 in-depth interviews with 28 participants and one written submission, this article explores the impacts, challenges and consequences of imprisonment for people with disability in Australia. By bringing together disability and criminological research, we highlight the impacts of subjecting people with disability to a ‘thoughtless’ and ableist prison environment, regime, and culture that simultaneously overlooks, compounds and further punishes their disability. Identifying three key areas of ‘institutional thoughtlessness’, we offer substantive insight into a group of people in prison often forgotten by researchers and policymakers.","container-title":"Criminology & Criminal Justice","DOI":"10.1177/17488958221120895","ISSN":"1748-8958","journalAbbreviation":"Criminology & Criminal Justice","language":"en","note":"publisher: SAGE Publications","page":"17488958221120895","source":"SAGE Journals","title":"The forgotten prisoners: Exploring the impact of imprisonment on people with disability in Australia","title-short":"The forgotten prisoners","author":[{"family":"Dodd","given":"Shannon"},{"family":"Doyle","given":"Caroline"},{"family":"Dickinson","given":"Helen"},{"family":"Buick","given":"Fiona"},{"family":"Yates","given":"Sophie"}],"issued":{"date-parts":[["2022",9,4]]}}},{"id":6180,"uris":["http://zotero.org/users/8253372/items/P5JV3L9W"],"itemData":{"id":6180,"type":"post-weblog","abstract":"Abolition is not limited to ending spaces and practices of incarceration and policing. Fundamentally, abolition is also about reimagining new ways of  life such that a world in which prisons, …","container-title":"The Abolition and Disability Justice Coalition","language":"en","title":"Cripping Abolition","URL":"https://abolitionanddisabilityjustice.com/opening/","accessed":{"date-parts":[["2023",5,6]]},"issued":{"date-parts":[["2020",8,6]]}}},{"id":6183,"uris":["http://zotero.org/users/8253372/items/PKHACWPR"],"itemData":{"id":6183,"type":"article-journal","container-title":"University of Pennsylvania Law Review","language":"en","source":"Zotero","title":"The Breaking Point: A Critical Disability Analysis of Abolition","volume":"169","author":[{"family":"Goldman","given":"Maya"},{"family":"Trieshmann","given":"Lucy"}],"issued":{"date-parts":[["2021"]]}}},{"id":6062,"uris":["http://zotero.org/users/8253372/items/KRG4EEAT"],"itemData":{"id":6062,"type":"chapter","abstract":"The chapter argues for building a bridge between critical disability studies and penal abolitionism. Doing so enhances our capacity to conceptualise and resist the intersecting forces that have created one of the fastest growing groups in the penal estate: people with cognitive disability and/or mental health problems. The chapter unfolds in four main arguments. First, we establish the key theoretical and analytic insights from abolitionism and critical disability studies which indicate the contribution each can make to the other. The rarely acknowledged existing parallels between both fields are also discussed. We then consider the key obstacles that may prevent an easy alliance between the two fields: sections of the disability-based rights movement who seek to better accommodate disability needs within prisons and the related obfuscation of the fundamental role of social-structural injustice in the creation of penal subjects (including those with and without disability). Finally, we discuss the theoretical and practical benefits of developing a reciprocal dialogue between the two fields and how such work benefits the praxis of penal abolitionism.","container-title":"The Routledge International Handbook of Penal Abolition","ISBN":"978-0-429-42503-5","note":"number-of-pages: 11","publisher":"Routledge","title":"Enabling penal abolitionism: The need for reciprocal dialogue between critical disability studies and penal abolitionism","title-short":"Enabling penal abolitionism","author":[{"family":"Rowe","given":"Simone"},{"family":"Dowse","given":"Leanne"}],"issued":{"date-parts":[["2021"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Liat Ben-Moshe, Decarcerating Disability: Deinstitutionalization and Prison Abolition (University of Minnesota Press 2020); Shannon Dodd and others, ‘The Forgotten Prisoners: Exploring the Impact of Imprisonment on People with Disability in Australia’ [2022] Criminology & Criminal Justice 17488958221120896; ‘Cripping Abolition’ (The Abolition and Disability Justice Coalition, 6 August 2020) <https://abolitionanddisabilityjustice.com/opening/> accessed 6 May 2023; Maya Goldman and Lucy Trieshmann, ‘The Breaking Point: A Critical Disability Analysis of Abolition’ (2021) 169 University of Pennsylvania Law Review; Rowe and Dowse (n 16). ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"AbM1dIiT","properties":{"formattedCitation":"Richard Branson, \\uc0\\u8216{}Stop the Killing of Nagaenthran Dharmalingan\\uc0\\u8217{} ({\\i{}Virgin.com}, 8 November 2021) <https://virgin.com/branson-family/richard-branson-blog/stop-the-killing-of-nagaenthran-dharmalingam> accessed 4 May 2023.","plainCitation":"Richard Branson, ‘Stop the Killing of Nagaenthran Dharmalingan’ (Virgin.com, 8 November 2021) <https://virgin.com/branson-family/richard-branson-blog/stop-the-killing-of-nagaenthran-dharmalingam> accessed 4 May 2023.","noteIndex":36},"citationItems":[{"id":6152,"uris":["http://zotero.org/users/8253372/items/WDTFFVEP"],"itemData":{"id":6152,"type":"webpage","abstract":"Stop the killing of Nagaenthran Dharmalingam","container-title":"Virgin.com","language":"en","title":"Stop the killing of Nagaenthran Dharmalingan","URL":"https://virgin.com/branson-family/richard-branson-blog/stop-the-killing-of-nagaenthran-dharmalingam","author":[{"family":"Branson","given":"Richard"}],"accessed":{"date-parts":[["2023",5,4]]},"issued":{"date-parts":[["2021",11,8]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Richard Branson, ‘Stop the Killing of Nagaenthran Dharmalingam’ (Virgin.com, 8 November 2021) <https://virgin.com/branson-family/richard-branson-blog/stop-the-killing-of-nagaenthran-dharmalingam> accessed 4 May 2023. Section 33B of the MDA (n NOTEREF _Ref134394519 \h \* MERGEFORMAT 5). See generally, ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"s9Q4OfGl","properties":{"formattedCitation":"Marc J Tass\\uc0\\u233{} and John H JD Blume, {\\i{}Intellectual Disability and the Death Penalty: Current Issues and Controversies} (ABC-CLIO 2017); Michael L Perlin, {\\i{}Mental Disability and the Death Penalty: The Shame of the States} (Rowman & Littlefield 2013); Richard J Wilson, \\uc0\\u8216{}The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition\\uc0\\u8217{} (2016) 73 Washington and Lee Law Review 1469; Allison Freedman, \\uc0\\u8216{}Mental Retardation and the Death Penalty: The Need for an International Standard Defining Mental Retardation\\uc0\\u8217{} (2014) 12 Northwestern University Journal of International Human Rights [i].","plainCitation":"Marc J Tassé and John H JD Blume, Intellectual Disability and the Death Penalty: Current Issues and Controversies (ABC-CLIO 2017); Michael L Perlin, Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield 2013); Richard J Wilson, ‘The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition’ (2016) 73 Washington and Lee Law Review 1469; Allison Freedman, ‘Mental Retardation and the Death Penalty: The Need for an International Standard Defining Mental Retardation’ (2014) 12 Northwestern University Journal of International Human Rights [i].","noteIndex":38},"citationItems":[{"id":6161,"uris":["http://zotero.org/users/8253372/items/EPYJVWY5"],"itemData":{"id":6161,"type":"book","abstract":"Providing key information for students or professionals in the fields of criminology, education, psychology, law, and law enforcement, this book documents the legal and clinical aspects of the issues related to intellectual disability and the death penalty.Written by two nationally recognized experts, this book provides a comprehensive review of the legal and clinical aspects of the death penalty as it relates to intellectual disability. First, the facts: people with intellectual disability may falsely confess to a crime because they want to please the authorities, and they are often less able than others to work with lawyers to prepare a defense. In addition, because of the stigma attached to intellectual disability, affected individuals often become adept at hiding it, even from their attorney, not understanding the condition's importance to the outcome of their case.Having explained such harsh realities and presented a comprehensive review of what intellectual disability is, the book focuses on the 2002 U.S. Supreme Court Atkins v. Virginia decision granting a death penalty exemption to individuals with intellectual disability. It outlines best practice regarding the determination of intellectual disability and discusses qualifications needed for experts in such cases. Related issues such as common misconceptions regarding people with intellectual disability, race, socioeconomic status, and the status of foreign nationals as it relates to the death penalty and intellectual disability are discussed as well. A must-have resource for prosecutors, defense lawyers, and clinicians providing expert testimony in death penalty cases, this book will also prove absorbing reading for anyone concerned about this troubling issue.Provides a comprehensive review of the legal and clinical aspects of the death penalty and intellectual disabilityOffers a detailed discussion of the Supreme court decision in Atkins v. Virginia as well as a review of court decisions since that 2002 rulingDetails the diagnostic issues related to determination of intellectual disability, such as the assessment of intellectual functioning, adaptive behavior, and age of onsetShares best practices in clinical assessment and important forensic matters that must be considered","ISBN":"978-1-4408-4015-9","language":"en","note":"Google-Books-ID: d0A9DwAAQBAJ","number-of-pages":"193","publisher":"ABC-CLIO","source":"Google Books","title":"Intellectual Disability and the Death Penalty: Current Issues and Controversies","title-short":"Intellectual Disability and the Death Penalty","author":[{"family":"Tassé","given":"Marc J."},{"family":"Blume","given":"John H. JD"}],"issued":{"date-parts":[["2017",12,1]]}}},{"id":6154,"uris":["http://zotero.org/users/8253372/items/U6PPHM8F"],"itemData":{"id":6154,"type":"book","abstract":"There is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities. There is clear, systemic bias at all stages of the prosecution and the sentencing process - in determining who is competent to be executed, in the assessment of mitigation evidence, in the ways that counsel is assigned, in the ways that jury determinations are often contaminated by stereotyped preconceptions of persons with mental disabilities, in the ways that cynical expert testimony reflects a propensity on the part of some experts to purposely distort their testimony in order to achieve desired ends. These questions are shockingly ignored at all levels of the criminal justice system, and by society in general. Here, Michael Perlin explores the relationship between mental disabilities and the death penalty and explains why and how this state of affairs has come to be, to explore why it is necessary to identify the factors that have contributed to this scandalous and shameful policy morass, to highlight the series of policy choices that need immediate remediation, and to offer some suggestions that might meaningfully ameliorate the situation. Using real cases to illustrate the ways in which the persons with mental disabilities are unable to receive fair treatment during death penalty trials, he demonstrates the depth of the problem and the way it's been institutionalized so as to be an accepted part of our system. He calls for a new approach, and greater attention to the issues that have gone overlooked for so long.","ISBN":"978-1-4422-0056-2","language":"en","note":"Google-Books-ID: V9m41sjtXlwC","number-of-pages":"295","publisher":"Rowman & Littlefield","source":"Google Books","title":"Mental Disability and the Death Penalty: The Shame of the States","title-short":"Mental Disability and the Death Penalty","author":[{"family":"Perlin","given":"Michael L."}],"issued":{"date-parts":[["2013"]]}}},{"id":6165,"uris":["http://zotero.org/users/8253372/items/UNV6N5EG"],"itemData":{"id":6165,"type":"article-journal","container-title":"Washington and Lee Law Review","issue":"3","journalAbbreviation":"Wash. & Lee L. Rev.","language":"eng","page":"1469-1500","source":"HeinOnline","title":"The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition","title-short":"The Death Penalty and Mental Illness in International Human Rights Law","volume":"73","author":[{"family":"Wilson","given":"Richard J."}],"issued":{"date-parts":[["2016"]]}}},{"id":6167,"uris":["http://zotero.org/users/8253372/items/3S8ADFKD"],"itemData":{"id":6167,"type":"article-journal","container-title":"Northwestern University Journal of International Human Rights","issue":"1","journalAbbreviation":"Nw. U. J. Int'l Hum. Rts.","language":"eng","page":"[i]-21","source":"HeinOnline","title":"Mental Retardation and the Death Penalty: The Need for an International Standard Defining Mental Retardation","title-short":"Mental Retardation and the Death Penalty","volume":"12","author":[{"family":"Freedman","given":"Allison"}],"issued":{"date-parts":[["2014"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Marc J Tassé and John H JD Blume, Intellectual Disability and the Death Penalty: Current Issues and Controversies (ABC-CLIO 2017); Michael L Perlin, Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield 2013); Richard J Wilson, ‘The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition’ (2016) 73 Washington and Lee Law Review 1469; Allison Freedman, ‘Mental Retardation and the Death Penalty: The Need for an International Standard Defining Mental Retardation’ (2014) 12 Northwestern University Journal of International Human Rights [i]. For a general overview of Singapore’s approach to the sentencing of “mentally disordered” offenders, see ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Xez1V3Tr","properties":{"formattedCitation":"Chua (n 11).","plainCitation":"Chua (n 11).","noteIndex":39},"citationItems":[{"id":2165,"uris":["http://zotero.org/users/8253372/items/HP22Z3CZ"],"itemData":{"id":2165,"type":"article-journal","container-title":"Singapore Academy of Law Journal","page":"434","title":"Sentencing Mentally Disordered Offenders: Lessons from the US and Singapore","volume":"23","author":[{"family":"Chua","given":"Eunice"}],"issued":{"date-parts":[["2011"]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Chua (n 11). ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"opQoItU9","properties":{"formattedCitation":"Kumaralingam Amirthalingam, {\\i{}Criminal Justice and Diversionary Programmes in Singapore}, 24 {\\scaps Crim Law Forum} 527\\uc0\\u8211{}559, 553\\uc0\\u8211{}554 (2013).","plainCitation":"Kumaralingam Amirthalingam, Criminal Justice and Diversionary Programmes in Singapore, 24 Crim Law Forum 527–559, 553–554 (2013).","dontUpdate":true,"noteIndex":40},"citationItems":[{"id":3952,"uris":["http://zotero.org/users/8253372/items/DR7GPNPT"],"itemData":{"id":3952,"type":"article-journal","abstract":"The politics of crime and punishment generally pushes Governments to adopt harsher measures to fight crime, yet there is a movement in Singapore toward a softer approach in some areas. Singapore has a robust – many would say tough – criminal justice system, for some aspects of which it has and will continue to receive international criticism. Less known is the fact that it has recently invested in more holistic and compassionate strategies, through criminal diversion programs and community sentencing. This article explains this shift in the context of significant social and political changes taking place in Singapore, heralding a more liberal society and open Government. The paper also engages with some of the theoretical and philosophical arguments in favor of criminal diversion and provides a brief overview of the recent diversionary programs in Singapore.","container-title":"Criminal Law Forum","DOI":"10.1007/s10609-013-9216-6","ISSN":"1046-8374, 1572-9850","issue":"4","journalAbbreviation":"Crim Law Forum","language":"en","page":"527-559","source":"DOI.org (Crossref)","title":"Criminal Justice and Diversionary Programmes in Singapore","volume":"24","author":[{"family":"Amirthalingam","given":"Kumaralingam"}],"issued":{"date-parts":[["2013",12]]}},"locator":"553 - 554"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Kumaralingam Amirthalingam, Criminal Justice and Diversionary Programmes in Singapore, 24 Crim Law Forum 527–559, 553–554 (2013) cf. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"AO2qFbt8","properties":{"formattedCitation":"Richard D Schneider, \\uc0\\u8216{}Mental Health Courts and Diversion Programs: A Global Survey\\uc0\\u8217{} (2010) 33 International Journal of Law and Psychiatry 201.","plainCitation":"Richard D Schneider, ‘Mental Health Courts and Diversion Programs: A Global Survey’ (2010) 33 International Journal of Law and Psychiatry 201.","noteIndex":40},"citationItems":[{"id":3574,"uris":["http://zotero.org/users/8253372/items/SG3S22IK"],"itemData":{"id":3574,"type":"article-journal","abstract":"Research techniques in the fields of mental health courts and diversion need to be improved. As well, insights are provided as to how the evaluations of these programs could be strengthened. There are reports from jurisdictions managing mentally disordered accused in the criminal justice system without the benefit of these programs. A distillation of the commonalities from those jurisdictions suggests that providing the police with better options at first instance (pre-arrest diversion), broader discretion on the part of the prosecutor (pre-plea diversion), and greater jurisdiction on the part of the courts (to impose treatment and monitoring) may have provided those jurisdictions with an adequately functioning system which, as of yet, has not created a need for mental health courts and formal diversion programs. Recommendations are made for future directions.","collection-title":"Mental Health Courts and Diversion Programs","container-title":"International Journal of Law and Psychiatry","DOI":"10.1016/j.ijlp.2010.07.001","ISSN":"0160-2527","issue":"4","journalAbbreviation":"International Journal of Law and Psychiatry","language":"en","page":"201-206","source":"ScienceDirect","title":"Mental health courts and diversion programs: A global survey","title-short":"Mental health courts and diversion programs","volume":"33","author":[{"family":"Schneider","given":"Richard D."}],"issued":{"date-parts":[["2010",9,1]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Richard D Schneider, ‘Mental Health Courts and Diversion Programs: A Global Survey’ (2010) 33 International Journal of Law and Psychiatry 201. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"6acz2dKL","properties":{"formattedCitation":"Chua (n 11) 460.","plainCitation":"Chua (n 11) 460.","noteIndex":41},"citationItems":[{"id":2165,"uris":["http://zotero.org/users/8253372/items/HP22Z3CZ"],"itemData":{"id":2165,"type":"article-journal","container-title":"Singapore Academy of Law Journal","page":"434","title":"Sentencing Mentally Disordered Offenders: Lessons from the US and Singapore","volume":"23","author":[{"family":"Chua","given":"Eunice"}],"issued":{"date-parts":[["2011"]]}},"locator":"460"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Chua (n 11) 460. Lim Ghim Peow v Public Prosecutor [2013] 4 SLR 1287; [2014] SGCA 52 (“Lim Ghim Peow”) at [25]. Public Prosecutor v Goh Lee Yin [2008] 1 SLR(R) 824; [2007] SGHC 205 (“Goh Lee Yin”) at [1]. Lim Ghim Peow (n NOTEREF _Ref134394582 \h \* MERGEFORMAT 42) at [26] and [28]. [2019] 5 SLR 769; [2019] SGHC 174. ibid at [44(a)]. ibid at [44(b)]. ibid at [44(c)]. ibid at [44(d)]. ibid at [44(e)]. ibid at [44(f)]. ibid at [44(g)]. Goh Lee Yin (n NOTEREF _Ref134394687 \h \* MERGEFORMAT 43) [58]. (1974) 60 Cr App R 74, 77. Goh Lee Yin (n NOTEREF _Ref134394687 \h \* MERGEFORMAT 43) at [60]. ibid at [107]. ibid at [98]. ibid at [93]. ibid at [80]. ibid at [95]. ibid at [83]. ibid at [85]. [2015] 3 SLR 222; [2015] SGHC 69. ibid at [58]. ibid. Lim Ghim Peow (n NOTEREF _Ref134394582 \h \* MERGEFORMAT 42) at [50]. Nagaenthran (CA) (n NOTEREF _Ref134124679 \h \* MERGEFORMAT 5) at [34] and [40]. PP v ASR (n NOTEREF _Ref134394827 \h \* MERGEFORMAT 14) at [103]. ibid at [110] – [113]. Lim Ghim Peow (n NOTEREF _Ref134394582 \h \* MERGEFORMAT 42) at [52]. ibid at [51]. PP v ASR (n NOTEREF _Ref134394827 \h \* MERGEFORMAT 14) at [113]. ibid at [110]. ibid at [111]. ibid. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"yqXYFPF8","properties":{"formattedCitation":"Lisa Brophy and others, \\uc0\\u8216{}The Urgent Need to Review the Use of CTOs and Compliance with the UNCRPD Across Australian Jurisdictions\\uc0\\u8217{} [2022] International Journal of Mental Health and Capacity Law 3; George Szmukler, Rowena Daw and Felicity Callard, \\uc0\\u8216{}Mental Health Law and the UN Convention on the Rights of Persons with Disabilities\\uc0\\u8217{} (2014) 37 International Journal of Law and Psychiatry 245.","plainCitation":"Lisa Brophy and others, ‘The Urgent Need to Review the Use of CTOs and Compliance with the UNCRPD Across Australian Jurisdictions’ [2022] International Journal of Mental Health and Capacity Law 3; George Szmukler, Rowena Daw and Felicity Callard, ‘Mental Health Law and the UN Convention on the Rights of Persons with Disabilities’ (2014) 37 International Journal of Law and Psychiatry 245.","noteIndex":78},"citationItems":[{"id":6185,"uris":["http://zotero.org/users/8253372/items/ZPSIRBXT"],"itemData":{"id":6185,"type":"article-journal","abstract":"In every Australian jurisdiction, legislation permits mental health service providers and/or mental health tribunals to force people with mental illness to engage in treatment, under Community Treatment Orders (CTOs). Despite considerable efforts made by every Australian state and territory to meet human rights obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) (2008; Maylea & Hirsch, 2017), Australia has rates of CTO usage that are very high by world standards (Light, 2019). Even within Australia, rates of CTO usage vary considerably between and within jurisdictions in spite of the legislation being very similar (Light, 2019; Adult mental health quarterly KPI report, 2019). This occurs in the context of mixed evidence about the efficacy of CTOs and a lack of clear understanding of their purpose (Segal et al., 2017; Kisely et al., 2017). The use of CTOs remains one of the most contentious issues in mental health service delivery. Not only is their efficacy unresolved, they also raise serious ethical and human rights concerns. The current debates, and attempts at reform, must be informed by valid and reliable data. This brief commentary will make the case for a research agenda that addresses the minimal research that has been undertaken to address the variations of CTO use across Australian jurisdictions.","container-title":"International Journal of Mental Health and Capacity Law","DOI":"10.19164/ijmhcl.28.1232","ISSN":"2056-3922","issue":"28","journalAbbreviation":"IJMHCL","language":"en","page":"3-9","source":"DOI.org (Crossref)","title":"The Urgent Need to Review the use of CTOs and Compliance with the UNCRPD Across Australian Jurisdictions","author":[{"family":"Brophy","given":"Lisa"},{"family":"Edan","given":"Vrinda"},{"family":"Kisely","given":"Steve"},{"family":"Lawn","given":"Sharon"},{"family":"Light","given":"Edwina"},{"family":"Maylea","given":"Chris"},{"family":"Newton-Howes","given":"Giles"},{"family":"James Ryan","given":"Christopher"},{"family":"June Weller","given":"Penelope"},{"family":"Zirnsak","given":"Tessa-May"}],"issued":{"date-parts":[["2022",4,27]]}}},{"id":6186,"uris":["http://zotero.org/users/8253372/items/63L25XPF"],"itemData":{"id":6186,"type":"article-journal","abstract":"People with a mental illness may be subject to the UN Convention on the Rights of Persons with Disabilities (CRPD), depending on definitions of terms such as ‘impairment’, ‘long-term’ and the capaciousness of the word ‘includes’ in the Convention's characterisation of persons with disabilities. Particularly challenging under the CRPD is the scope, if any, for involuntary treatment., Conventional mental health legislation, such as the Mental Health Act (England and Wales) appears to violate, for example, Article 4 (‘no discrimination of any kind on the basis of disability’), Article 12 (persons shall ‘enjoy legal capacity on an equal basis with others in all aspects of life’) and Article 14 (‘the existence of a disability shall in no case justify a deprivation of liberty’)., We argue that a form of mental health law, such as the Fusion Law proposal, is consistent with the principles of the CRPD. Such law is aimed at eliminating discrimination against persons with a mental illness. It covers all persons regardless of whether they have a ‘mental’ or a ‘physical’ illness, and only allows involuntary treatment when a person's decision-making capability (DMC) for a specific treatment decision is impaired — whatever the health setting or cause of the impairment — and where supported decision making has failed. In addition to impaired DMC, involuntary treatment would require an assessment that such treatment gives the person's values and perspective paramount importance.","container-title":"International Journal of Law and Psychiatry","DOI":"10.1016/j.ijlp.2013.11.024","ISSN":"0160-2527","issue":"3","journalAbbreviation":"Int J Law Psychiatry","note":"PMID: 24280316\nPMCID: PMC4024199","page":"245-252","source":"PubMed Central","title":"Mental health law and the UN Convention on the rights of persons with disabilities","volume":"37","author":[{"family":"Szmukler","given":"George"},{"family":"Daw","given":"Rowena"},{"family":"Callard","given":"Felicity"}],"issued":{"date-parts":[["2014",5]]}}}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Lisa Brophy and others, ‘The Urgent Need to Review the Use of CTOs and Compliance with the UNCRPD Across Australian Jurisdictions’ [2022] International Journal of Mental Health and Capacity Law 3; George Szmukler, Rowena Daw and Felicity Callard, ‘Mental Health Law and the UN Convention on the Rights of Persons with Disabilities’ (2014) 37 International Journal of Law and Psychiatry 245. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"8YzRCaJh","properties":{"formattedCitation":"Committee on the Rights of Persons with Disabilities General comment No. 6 (2018) on equality and non- discrimination (n 23) para 55.","plainCitation":"Committee on the Rights of Persons with Disabilities General comment No. 6 (2018) on equality and non- discrimination (n 23) para 55.","noteIndex":79},"citationItems":[{"id":1301,"uris":["http://zotero.org/users/8253372/items/F7FK283L"],"itemData":{"id":1301,"type":"bill","authority":"United Nations","container-title":"CRPD/C/GC/6","title":"General comment No. 6 (2018) on equality and non- discrimination","author":[{"literal":"Committee on the Rights of Persons with Disabilities"}],"issued":{"date-parts":[["2018",4,26]]}},"locator":"55","label":"paragraph"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Committee on the Rights of Persons with Disabilities General comment No. 6 (2018) on equality and non- discrimination (n 23) para 55. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"dMbpvURK","properties":{"formattedCitation":"{\\i{}Id.}at 59.","plainCitation":"Id.at 59.","dontUpdate":true,"noteIndex":77},"citationItems":[{"id":458,"uris":["http://zotero.org/users/8253372/items/4E8PMETX"],"itemData":{"id":458,"type":"book","abstract":"\"Through theoretical and empirical examination of legal frameworks for court diversion, this book interrogates law's complicity in the debilitation of disabled people. In a post-deinstitutionalisation era, diverting disabled people from criminal justice systems and into mental health and disability services is considered therapeutic, humane and socially just. Yet, by drawing on Foucauldian theory of biopolitics, critical legal and political theory and critical disability theory, Steele argues that court diversion continues disability oppression. It can facilitate criminalization, control and punishment of disabled people who are not sentenced and might not even be convicted of any criminal offences. On a broader level, court diversion contributes to the longstanding phenomenon of disability-specific coercive intervention, legitimates prison incarceration and shores up the boundaries of foundational legal concepts at the core of jurisdiction, legal personhood and sovereignty. Steele shows that the United Nations Convention on the Rights of Persons with Disabilities cannot respond to the complexities of court diversion, suggesting the CRPD is of limited use in contesting carceral control and legal and settler colonial violence. The book not only offers new ways to understand relationships between disability, criminal justice and law; it also proposes theoretical and practical strategies that contribute to the development of a wider re-imagining of a more progressive and just socio-legal order. The book will be of interest to scholars and students of disability law, criminal law, medical law, socio-legal studies, disability studies, social work and criminology. It will also be of interest to disability, prisoner and social justice activists\"--","call-number":"K5077","collection-title":"Social justice","event-place":"London ; New York, NY","ISBN":"978-1-351-24033-8","language":"en","number-of-pages":"1","publisher":"Routledge/Taylor & Francis Group","publisher-place":"London ; New York, NY","source":"Library of Congress ISBN","title":"Disability, Criminal Justice and Law: Reconsidering Court Diversion","title-short":"Disability, criminal justice and law","author":[{"family":"Steele","given":"Linda"}],"issued":{"date-parts":[["2020"]]}},"locator":"59"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Id. at 59. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"srIKaJki","properties":{"formattedCitation":"Arlene S Kanter, {\\i{}The Development of Disability Rights Under International Law: From Charity to Human Rights} (Routledge 2014) 51.","plainCitation":"Arlene S Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights (Routledge 2014) 51.","noteIndex":80},"citationItems":[{"id":1353,"uris":["http://zotero.org/users/8253372/items/72G6E2WW"],"itemData":{"id":1353,"type":"book","ISBN":"978-0-203-71171-2","language":"en","note":"DOI: 10.4324/9780203711712","publisher":"Routledge","source":"DOI.org (Crossref)","title":"The Development of Disability Rights Under International Law: From Charity to Human Rights","title-short":"The Development of Disability Rights Under International Law","author":[{"family":"Kanter","given":"Arlene S."}],"accessed":{"date-parts":[["2021",12,8]]},"issued":{"date-parts":[["2014",11,27]]}},"locator":"51","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Arlene S Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights (Routledge 2014) 51. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"Yl9H18Qy","properties":{"formattedCitation":"Isobel Renzulli, \\uc0\\u8216{}Prison Abolition: International Human Rights Law Perspectives\\uc0\\u8217{} (2022) 26 The International Journal of Human Rights 100, 109.","plainCitation":"Isobel Renzulli, ‘Prison Abolition: International Human Rights Law Perspectives’ (2022) 26 The International Journal of Human Rights 100, 109.","noteIndex":81},"citationItems":[{"id":6189,"uris":["http://zotero.org/users/8253372/items/RK2NBJL4"],"itemData":{"id":6189,"type":"article-journal","abstract":"The article examines the compatibility of the international human rights regime with penal abolition as a body of critical social thought as well as a social movement seeking the abolition of prisons. The international human rights regime recognises and legitimates the existence of penitentiary systems while at the same time being noticeably active in areas related to prisoners’ rights and the scrutiny of conditions of detention. This allows in some, admittedly limited, circumstances to pursue and advance alternative frameworks that seek to reduce reliance on the prison system. The increased scrutiny and questioning of the use and legitimacy of detention, even for serious criminal behaviour, provide the normative premises for the abolition of prisons as the dominant form of punishment. However, a human rights approach to imprisonment is not enough from a penal abolitionist standpoint, unless grounded in and supported by a wider social justice programme tackling structural inequalities. In this respect, it is submitted that the multi-facetted international human rights regime provides some legal and normative tools. The IHR regime’s equality dimension and its social, economic, and cultural rights tradition, may contribute to a broad view of justice beyond the narrow and punitive confines of the criminal justice system.","container-title":"The International Journal of Human Rights","DOI":"10.1080/13642987.2021.1895766","ISSN":"1364-2987","issue":"1","note":"publisher: Routledge\n_eprint: https://doi.org/10.1080/13642987.2021.1895766","page":"100-121","source":"Taylor and Francis+NEJM","title":"Prison abolition: International human rights law perspectives","title-short":"Prison abolition","volume":"26","author":[{"family":"Renzulli","given":"Isobel"}],"issued":{"date-parts":[["2022",1,2]]}},"locator":"109","label":"page"}],"schema":"https://github.com/citation-style-language/schema/raw/master/csl-citation.json"} Isobel Renzulli, ‘Prison Abolition: International Human Rights Law Perspectives’ (2022) 26 The International Journal of Human Rights 100, 109. ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"zjPI750H","properties":{"formattedCitation":"Rowe and Dowse (n 16) 210.","plainCitation":"Rowe and Dowse (n 16) 210.","noteIndex":82},"citationItems":[{"id":6062,"uris":["http://zotero.org/users/8253372/items/KRG4EEAT"],"itemData":{"id":6062,"type":"chapter","abstract":"The chapter argues for building a bridge between critical disability studies and penal abolitionism. Doing so enhances our capacity to conceptualise and resist the intersecting forces that have created one of the fastest growing groups in the penal estate: people with cognitive disability and/or mental health problems. The chapter unfolds in four main arguments. First, we establish the key theoretical and analytic insights from abolitionism and critical disability studies which indicate the contribution each can make to the other. The rarely acknowledged existing parallels between both fields are also discussed. We then consider the key obstacles that may prevent an easy alliance between the two fields: sections of the disability-based rights movement who seek to better accommodate disability needs within prisons and the related obfuscation of the fundamental role of social-structural injustice in the creation of penal subjects (including those with and without disability). 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ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"6Gqf2pVO","properties":{"formattedCitation":"ibid 112.","plainCitation":"ibid 112.","noteIndex":85},"citationItems":[{"id":6189,"uris":["http://zotero.org/users/8253372/items/RK2NBJL4"],"itemData":{"id":6189,"type":"article-journal","abstract":"The article examines the compatibility of the international human rights regime with penal abolition as a body of critical social thought as well as a social movement seeking the abolition of prisons. The international human rights regime recognises and legitimates the existence of penitentiary systems while at the same time being noticeably active in areas related to prisoners’ rights and the scrutiny of conditions of detention. This allows in some, admittedly limited, circumstances to pursue and advance alternative frameworks that seek to reduce reliance on the prison system. 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ADDIN ZOTERO_ITEM CSL_CITATION {"citationID":"kROQEJg1","properties":{"formattedCitation":"Degener (n 20) 44\\uc0\\u8211{}47.","plainCitation":"Degener (n 20) 44–47.","noteIndex":86},"citationItems":[{"id":730,"uris":["http://zotero.org/users/8253372/items/L3TW8WMN"],"itemData":{"id":730,"type":"article-journal","abstract":"The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. 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