ABSTRACT
This chapter argues that we should approach court diversion as a mode of biopower through which law debilitates criminalised disabled people. This way of approaching court diversion utilises an analytical framework that foregrounds key concepts of ‘discipline’, ‘massification’, ‘scientific racism’, ‘slow death’, ‘inclusionism’ and ‘debility’ which are articulated by drawing on aspects of Foucauldian theory, critical disability studies, critical legal and political theory and queer theory. The analytical framework moves beyond a focus solely on disability discrimination and instead situates court diversion in interlocking oppression and settler colonialism. Through this analytical framework, court diversion can be understood as having violent, discriminatory and unjust impacts at multiple scales—for the particular individuals who are diverted and for criminalised disabled people as a population (the majority of whom are not diverted). As such, this approach differs from existing scholarly and human rights approaches to court diversion which are too narrowly focused on the immediate disability-related implications of court diversion for specific individuals who are diverted. The chapter suggests that far from addressing the problem of overrepresentation of disabled people in the criminal justice system, court diversion instead facilitates and legitimates the continued oppression of criminalised disabled people through criminal legal, criminal justice and disability and mental health systems.
