Bláithín O’Shea is a 3rd year PhD student in the School of Law, University of Limerick
Introduction
The prison environment is known to place human rights principles under strain, and while all persons are potentially vulnerable in prison, the pains of imprisonment are not experienced equally. In particular, many persons with intellectual disabilities (‘PWID’) face unique challenges in prison that may render imprisonment as dangerous, discriminative, and ineffective. Accordingly, it is argued that prison should be reserved as a sanction of last resort for PWID. The pains of imprisonment for PWID are interrogated here before presenting the principle of prison as a sanction of last resort and how it may operate in practice.
Intellectual Disability
Prior to discussing the pains of imprisonment for PWID, it is worth discussing what exactly an intellectual disability (ID) is. There is no all-encompassing, universally accepted definition of ID, but several diagnostic systems (the American Association for Intellectual and Development Disabilities; the American Psychiatric Association’s DSM-5; and the World Health Organisation’s ICD-11) specify that in order for ID to be diagnosed, there must be:
- significant limitations in intellectual functioning (learning, reasoning, and problem-solving skills),
- deficits in adaptive behaviour (conceptual, social, and practical skills that aid persons in coping independently),
- the conditions originate before the developmental period (depending on the classification system used, this may vary between under aged 18 or 22).
PWID are not a homogenous group – they experience varying types and severity of impairment and exhibit differing levels of social functioning.
The Pains of Imprisonment for PWID
Sykes (1958) identified several deprivations inherent in prison life, including deprivations of liberty, goods and services, heterosexual relationships, autonomy, and security. Collectively, these deprivations are known as ‘pains of imprisonment’. While all prisoners are vulnerable to the pains of imprisonment, they are not experienced equally. Some pains of imprisonment are distinctive to, and heightened for, prisoners with ID. PWID in prison are subject to more stringent restrictions, control and isolation; have greater issues accessing information and rehabilitative opportunities; and experience a higher risk of exposure to violence, victimisation and abuse.
It has been well documented that prison can be a hostile environment where physical violence, victimisation and sexual abuse occurs, resulting in many prisoners living in fear for their personal safety (Hemmens and Marquart 1999; Middlemass and Delorenzo 2009; Wolff and Shi 2001). However, prisoners with ID have a higher risk of being exposed to violence, hostility, and exploitation than the general population of prisoners (Talbot 2008; Glaser and Deane 1999). Overcrowding in prisons exacerbates this issue, forming ‘the perfect atmosphere for the bully to thrive and exert huge pressure on vulnerable prisoners’ (Power 2019).
Prisons often lack accessible communication and information to reasonably accommodate PWID, rendering the prison environment difficult to navigate. For example, a UK study into the experience of the criminal justice system by prisoners with learning disabilities and difficulties found that 85% of participants who identified as having possible learning disabilities had issues in reading prison information (Talbot 2008). One participant stated:
It’s been a nightmare. Basically I don’t know what the rules and regulations are. When you come in they give you a huge induction pack and tell you to look at it, you don’t get any help. I have told them I need help but they don’t pay any interest in me. (Talbot 2008, p. 28)
Difficulties in understanding prison rules naturally increase the likelihood of PWID being subject to disciplinary sanctions. Difficulties in accessibility are also evident in relation to employment, training and education in prisons. Though such programmes support rehabilitation by fostering positive social skills, social identities and self-worth, many fail to accommodate PWID, meaning the rehabilitative component of prison life is inaccessible to many PWID (Irish Penal Reform Trust 2020; Ellem 2010; Jones 2007). Upon release from prison, the lack of rehabilitation, coupled with PWID’s status as having multiple stigma (from having a disability and being coined an ‘ex-convict’), results in further marginalisation, which in turn creates difficulties in accessing accommodation, employment opportunities and contributes to re-offending (Klimecki, Jenkinson, and Wilson 1994).
Prison as a Sanction of Last Resort
There has been increasing support in penology discourse for the principle of prison as a sanction of last resort. This is largely attributable to ‘empirical research on the characteristics of prisons as institutions’, the ‘effects of imprisonment’, and ‘wider reflections on theories of punishment and the aims of imprisonment’ (Van Zyl Smit and Snacken 2009). For example, in 2019, the Council of the EU stated that there is ‘a broad consensus that detention should be used only as a last resort’ and ‘applying non-custodial sanctions and measures – instead of detention – where appropriate and taking into consideration the individual circumstances of the case, can have several advantages’ (Council of the EU, 2019, para. 4). Thus, to achieve prison as a last resort, community-based sanctions must available in lieu of imprisonment. However, many jurisdictions already have community-based sanctions, yet PWID are still over-represented in prison populations worldwide (Fazel, Xenitidis, and Powell, 2000; Hellenbach, Karatzias, and Brown, 2017). How, then, can community-based sanctions be prioritised, and prison be a last resort for this cohort?
Firstly, the judiciary needs to have confidence in community-based sanctions. Meaningful conclusions about judges’ opinions on community sanctions require more sentencing data, but some research has pointed to a lack of information of community-based sanctions and a fear of being seen as ‘soft on crime’ as reasons preferring imprisonment (Birkett 2016; Maguire 2008). With regards to the public, communication on community-based sanctions may hold the key, as Roberts and Hough (2005) highlight that they tend to become less punitive the more informed they are about criminal justice. In relation to the judiciary, it is suggested that in addition to information on community-based sanctions, they should be given disability awareness training (as necessitated by Article 13 CRPD) on the lived realities of ID, and the negative impact imprisonment has on PWID so that accommodations can be made at sentencing.
Generally at sentencing the judge assesses the available range of sentences applicable to an offence before determining the gravity of the offence, the latter of which usually involves an assessment of the culpability of the offender and the harm caused to the victim. As part of this exercise, a judge may identify factors that aggravate or mitigate culpability that may respectively increase or decrease sentence severity (Roberts 2011). It is suggested that both the presence of ID, and the pains of imprisonment for PWID, should be considered as mitigating factors to reduce sentence severity and contribute to having prison as a last resort. To ensure this is applied consistently and uniformly, there is merit in having sentencing guidelines, as they could specifically list ID as a personal mitigating factor that should be incorporated into the judicial decision-making process. However, care must be taken to avoid sentencing guidelines that are too strict, as this may impede upon the judiciary’s discretion and ability to tailor sentences to the individual circumstances of the offender (Jacobson and Hough 2007).
Finally, to ensure prison is a last resort, recall to prison must also be the last resort if an offender fails to adhere to the requirements of their community-based sanction. According to Tata (2015), imposing imprisonment due to non-compliance essentially reiterates prison’s position as the default sentence at the expense of community sanctions, ‘which appear as weak, unreliable and poorly explained’. This is particularly important for PWID, as Gormley (2017, p. 223) found in her study that PWID who were given bail or sentenced to community-based sanctions were often recalled to prison for ‘technical non-compliance’ either because they ‘did not understand what was being asked of them, or it had not been explained sufficiently’. Duff (2003) argues that a distinction should be made between those who ‘wilfully’ breach conditions and those who fail to comply due to incompetence or lack of resources and that the latter category of offender should receive help and assistance as opposed to a severe penalty like imprisonment. This can be done through multi-layered, individualised, holistic responses to non-compliance. For example, in Belgium, recall to prison is considered the last resort which is only imposed when all other informal and formal warnings have failed (Beyens et al. 2017).
Conclusion
PWID feel the pains of imprisonment more acutely than those in the general prisoner population. In recent years, European and international discourse has propounded the principle of prison as a sanction of last resort as a means to tackle the issues with imprisonment. The author argues that there is merit in applying this principle to PWID. However, to do so, there must be receptiveness to community-based sanctions from both the public and the judiciary. Moreover, sentencing judges must consider how ID impacts culpability and the difficulties PWID experience as factors meriting the imposition of community-based sanctions in lieu of imprisonment. Finally, instead of immediately imposing imprisonment for non-compliance of community-based sanctions, there should be a multi-tiered process allowing for consideration of the offender’s individual circumstances.
References
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Defending Vulnerability 