“Are You Able-Bodied?” Embodying Accountability in the Modern Criminal Justice System
| Author | Michele Cadigan,Tyler Smith |
| Published date | 01 February 2021 |
| Date | 01 February 2021 |
| DOI | http://doi.org/10.1177/1043986220965034 |
| Subject Matter | Articles |
research-article2020
Article
Journal of Contemporary Criminal Justice
2021, Vol. 37(1) 25 –44
“Are You Able-Bodied?”
© The Author(s) 2020
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Embodying Accountability
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https://doi.org/10.1177/1043986220965034
DOI: 10.1177/1043986220965034
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in the Modern Criminal
Justice System
Michele Cadigan1,* and Tyler Smith1,*
Abstract
Monetary sanctions are a common tool for enforcing accountability within the
criminal justice system. However, it is unclear how individuals with disabilities who
have a limited capacity to work interact with the system of monetary sanctions.
Drawing on courtroom observations and interviews in Washington State, we find
that although the court does take disability into account when imposing economic
sanctions and monitoring payment compliance, individuals with disabilities end up
in a perpetual cycle of administrative hearings that can result in serious financial
and health consequences for those involved. Implications for findings are discussed.
Keywords
disability, monetary sanctions, workfare, criminal justice system
Introduction
Penal practices that directly or indirectly prioritize labor or workforce participation as
a form of rehabilitation and accountability are an integral part of the modern criminal
justice system (Gurusami 2017; Wacquant, 2009). Monetary sanctions, also known as
legal financial obligations (LFOs), are an example of this practice as courts attempt to
make individuals responsible for “using” court resources by financially compensating
the state and punishing them when they cannot pay (Friedman & Pattillo, 2019; Harris,
2016). For those who cannot immediately pay in full, this practice requires them to
1University of Washington, Seattle, WA, USA
*Equal authorship
Corresponding Author:
Michele Cadigan, Sociology, University of Washington, 211 Savery Hall, Box 353340, Seattle, WA 98195,
USA.
Email: mlcadig@uw.edu
26
Journal of Contemporary Criminal Justice 37(1)
seek employment to fulfill these court-ordered obligations and exit the system—a dif-
ficult task for many indigent defendants.
However, this work has yet to examine the experiences of individuals with dis-
abilities within the system of monetary sanctions. This is important because disabled
people are overrepresented in the criminal justice system, have an even more difficult
time accessing the labor market than nondisabled people, and are often poorer than the
general population (Giertz & Kubik, 2011; L. Harris, 1994; Jenkins, 1991). Thus, the
expectation of workforce participation that is inherent to the practice of monetary
sanctions presents unique difficulties for this population. To understand the relation-
ship between disability and LFOs, we examine what considerations the justice system
gives to individuals with disabilities when imposing and monitoring compliance with
monetary sanctions. Furthermore, how do these different practices and policies shape
the experiences of people with disabilities burdened with this debt?
Drawing on 169 hours of ethnographic observation of court hearings and 59 inter-
views with individuals convicted of misdemeanors or felonies in three Washington
State counties, we found that the process for assessing LFOs and monitoring payment
compliance presented unique challenges for individuals with disabilities. We define
disability as a set of limitations that prevent people from pursuing collective, social,
and economic pursuits (Wendell, 1996). In this case, disability included physical, cog-
nitive, or psychiatric limitations, both visible and nonvisible, that individuals we inter-
viewed and observed claimed limited or prevented them from working. Although there
is likely a significant amount of nuance in how individuals with different types of
disability experience the justice system, our goal was to provide a descriptive account
of how disability, broadly defined, may shape experiences with monetary sanctions.
Even though the courts did consider disability when assessing ability to pay and
determining if noncompliance with payment orders was willful, the laws governing
monetary sanctions required the imposition of some fines and fees nonetheless. As a
result, individuals unable to work because of their disability were kept under the sur-
veillance of the criminal justice system seemingly indefinitely. Under this surveil-
lance, they were subject to routine administrative reviews where they were required to
continually reassert their disability status to avoid the legal consequences of nonpay-
ment. Overall, individuals with disabilities reported they struggled to pay their LFOs
and discussed the real and potential health consequences they faced while attempting
to balance these legal debts with other financial and medical needs. These findings
underscore a previously unexplored mechanism by which the criminal justice system
furthers economic and social marginality among disabled populations.
Disability and the Criminal Justice System
The surveillance and control of individuals with disabilities have a long and sordid
history. Individuals with disabilities have often been framed as dangerous and in need
of containment (Ben-Moshe, 2013; Foucault, 2003). Individuals with developmental
and psychiatric disabilities in particular have come to be seen as prone to violence and
in greater need of strict supervision (Mueller et al., 2019). These narratives linking
Cadigan and Smith
27
disability to deviance led to the institutionalization of disabled people in mental hos-
pitals during the 18th century, and although many of these institutions were closed in
the 20th century, scholars suggest these populations have simply been redistributed
across other institutions of control such as nursing homes, treatment centers, and cor-
rectional facilities (Ben-Moshe, 2020; Parsons, 2018).
Although it is hard to estimate the exact number of individuals with disabilities entan-
gled in the justice system today (see Smith et al., 2008), evidence suggests they likely
make up a large portion of the justice-involved population (Bronson et al., 2015).
Researchers find individuals with disabilities, such as those related to mental health, may
be more vulnerable to arrest than the general population due to high rates of homeless-
ness and substance abuse (Fischer, 2005). Conservative estimates find at least 39% of
incarcerated individuals have at least one chronic physical or mental health condition
(Wilper et al., 2009). Furthermore, about 15% have multiple cognitive, visual, hearing,
and/or self-care disabilities (Bronson et al., 2015). Compared with the general popula-
tion, individuals in prisons or jails have a greater likelihood of experiencing chronic
conditions such as asthma, arthritis, and some forms of cancer (Binswanger et al., 2009).
Despite the number of individuals with disabilities in the criminal justice system,
most research on the proliferation of the carceral state largely ignores this population
(Ben-Moshe, 2020). What research does exist suggests the justice system is ill-
equipped to deal with this population and that correctional institutions can even be
deadly for those with various disabilities due to institutional mismanagement (Fischer,
2005; Herbert, 2019; Petersilia, 2000). Even family members of defendants claim
there is inadequate support for individuals with disabilities throughout the process and
a lack of sentencing options that account for this population’s particular needs
(Cockram et al., 1998). Furthermore, individuals with disabilities encounter unique
difficulties navigating life postincarceration and are at increased risk of returning to
prison or jail (Ben-Moshe, 2013; Bunn, 2018).
Although this research is important, there is a dearth of studies that explore the
experiences of individuals with disabilities with forms of criminal punishment outside
of direct incarceration. Engaging in such research has become increasingly critical as
scholars document the expansion of punishment practices such as the increased use of
probation (Phelps, 2017), electronic home monitoring (Jones, 2014), coercive treat-
ment programs (Gowan & Whetstone, 2012), and monetary sanctions (Harris et al.,
2010). Not only is the United States experiencing an era of mass incarceration, but it
is experiencing what might rightly be called an era of mass punishment more gener-
ally. A greater exploration of how different forms of punishment affect those with vari-
ous disabilities will serve to further our knowledge about how the criminal justice
system further marginalizes these individuals.
The Role of Labor in Criminal Justice Punishment
Practices
Central to understanding the effect of the modern criminal justice system on individu-
als with disabilities is an examination of the increased use of labor as an aspect of
28
Journal of Contemporary Criminal Justice 37(1)
punishment. Modern state bureaucracies are shaped by the “new economic discipline”
of neoliberal governance emphasizing personal responsibility and celebrating the ben-
efits of labor market participation (Schram et al., 2008; Wacquant, 2010). Social hard-
ship and deviance are seen as resulting from personal moral failings rather than
structural issues, and state institutions have increasingly focused on the direct or indi-
rect enforcement of labor...
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