Disabilities within criminal justice system’s penal practice and experiences of justice create and become created by prison culture. Disablism, criminological and penological research examined the ‘barriers of doing’ and ‘barriers of being’ in relation to incarceration as experienced by the people with various forms of disabilities. However, no adequate records of people with disabilities may be available within the prison population as held by the statutory bodies due to complexity of distinguishing certain disabilities when it comes to the law and criminal justice. ¹

Incarcerated with disabilities are at risk of additional harm, harassment, abuse, coercion and manipulation, as well as exploitation and dangerous relationships with their custodial staff, fellow prisoners and prison’s personnel. Defendants with disabilities such as learning disabilities can have increased uncertainty about their sentencing, noted to have had cases of overstaying their sentence due to their release dates being postponed, as well as committing a new offence once released. As the result, disabled prisoners are noted to have been unable to brace themselves for long-term incarceration or meet the requirements for release due to lack of tangible support. In fact, awareness about prison’s structure and daily routines alleviates some of the suffering and provides comforting reassurance to the incarcerated. Nonetheless, absence of information and informational barriers often means anxiety and fear further heightened by relying on other prisoners for interpretive assistance and hesitance to turn to prison staff or having their questions left unanswered when doing so. In addition, incident reporting to prison staff or furthermore becoming victimized by the prison staff do not contribute to establishment of institutional trust leaving some prisoners to self-isolate and become further marginalized.

Awareness and support experienced by the defendants in court highlight the lack of accessibility extended to them during their trial either by their legal counsel or other representative to them in part of their legal proceedings. Accessible language, terms of reference and time markers would have contributed to reduction of harm experienced by the incarcerated struggling with disabilities.

Criminologists assess causes of anti-social behavior that is associated with most criminal activities. Impaired cognitive functioning has been further established to be a tangible cause for anti-social behavior and can include complex experiences of memory and reasoning, orientation to person, location and time, as well as attention, language, constructional skills and calculations. ²  Simultaneously cognitive impairment does not necessitate reduced intelligence or intellectual disabilities and is challenging to clearly define. Appearance of cognitive impairment can occur during development or for reasons such as substance use, physical damages to the brain due to an inflicted or otherwise received injury, or other aspects that translate into clinical reasons on the contrary to more general cognitive shortages. ³ Furthermore, none of this would negate the importance of understanding that those causes, reasons and experiences arise over a life cycle, beginning and continuing from a concrete stage of a person’s life.

Treacherous wrong is contemplated within the social services system should the rates of people with mental health issues who end up in provincial and federal prisons be as significant as becomes observed. ⁴ Social and spatial exclusion accentuates that inclusion steps beyond physical relocation of certain bodies, therefore rather encompasses broad range of constructs and experiences. Those constructs and experiences are usually measured by legal normative formulations that stipulate the objects, including actions and states, pertaining to rights that are held by the subjects of the law. Meaning that rights serve as extensions of the human self and therefore it is not the subjects who are particularly violated, but their rights and protected categories that are regulated by the enactment of legal norms and their upholding.

Sociologists have been researching the ways in which prisons are experienced, how adaptation takes place, how daily lives of those who live and work there are shaped, as well as prisoner’s understanding of their sentence and complexity around power, authority, and order.

While lack of accessibility constitutes decision making about the person beyond the parameters allocated to the experiences set forth by the criminal justice and penal systems, the history of disability policy is quite extensive. In Ontario, the last institution to close for people with intellectual disabilities was to see its closure in March 2009 and while the focus been shifting toward more self-governed approaches and community based care, deinstitutionalization did not necessitate inclusion.

Hidden harms that extend beyond the affective pain of imprisonment are noted to produce and reproduce inequalities and injustices. ⁵ Beyond latent discrimination and latent crime lays perhaps another latent concept, the concept of latent injustice. Systemic negligence and encountered moral indifference make questionable social mediation of harms within prison structures and institutional interactions.