'Unfit to plead': why does the law jail those with intellectual disabilities indefinitely?

People with intellectual disabilities who are found to be “unfit to plead” are still locked away for years on end in Western Australia. Similarly, in the Northern Territory, this detention occurs in prison, usually in maximum security settings.

In other states such as Queensland, Victoria and Tasmania, a person who has been found unfit to plead may be detained in a secure psychiatric facility.

In 1987, Gregory Yates, a 27-year-old man with an intellectual disability was sentenced to seven years imprisonment in WA for the sexual assault of a young girl.

He served his time for the offence, but due to a judicial order under section 662 of the Criminal Code (WA)- a section that has since been repealed - Yates was detained “at the Governor’s pleasure”. He remained in prison for 25 years.

Earlier this year, the High Court put an end to the ongoing imprisonment of Yates, after evidence before the sentencing judge that suggested he posed a “danger” to the public was held to be insufficient.

Some may argue that due to the severity of his offence, Yates should have been jailed for longer than seven years. But 25 years in prison seems an inordinately long time, given that those convicted of murder can be paroled in less time.

This begs the question: would Yates have been jailed for so long if he didn’t have an intellectual disability?

In a similar case, a man named Marlon Noble was imprisoned for over ten years without conviction in Western Australia. While Noble has now been released into the community, he is still subjected to severe restrictions on his freedom. Noble is attempting to have these lifted.

Those with intellectual disabilities form a disproportionately large cohort of prisoners.

One meta-study has estimated that 60% of prisoners in the United States, United Kingdom, Australia and New Zealand suffer from “traumatic brain injury”, defined as a brain injury acquired after birth.

Those with intellectual disabilities may be detained in prison far longer than those without such disabilities. This is either through indefinite detention provisions or via laws that enable them to be considered unfit to plead.

There is a current campaign that highlights the preventive detention of aboriginal people with intellectual disabilities. Presently, a High Court challenge to the constitutionality of laws surrounding indefinite detention of those with intellectual disabilities is also being prepared.

The detention of individuals with intellectual disabilities on the basis that they may pose a risk to others raises substantial questions concerning human rights.

The Convention on the Rights of Persons with Disabilities (CRPD), which Australia ratified in July 2008, clarifies the obligations of states’ parties to promote and ensure the rights of a person with disabilities. It also sets out the steps that should be taken to ensure equality of treatment. It goes into much more detail than previous general human rights conventions concerning action on prohibiting discrimination.

Neither “disability” nor “persons with disabilities” is defined in the CRPD. However it does state that the latter term includes:

…those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Additionally, the CRPD requires Australia to ensure that persons with disabilities:

…are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

Even if this provision is interpreted to mean that the “the existence of a disability alone” does not justify such laws - but “dangerousness” does - detention without any attempt to treat or otherwise rehabilitate those with intellectual disabilities raises the issue of cruel and unusual punishment, as mentioned in the CRPD.

There is also the issue of risk assessment. The evidence at Gregory Yates’ sentencing hearing would today be considered inadequate for the purposes of indefinite detention.

This is due to the rise of risk assessment instruments and the better training of expert witnesses in this field. However, risk assessment evidence has been criticised on a number of grounds, as has the indefinite detention on the basis of risk. Both concerns raise numerous procedural and policy issues.

The involuntary detention of those with intellectual disabilities due to the risk they pose to others may be viewed as discriminatory. Those without mental or intellectual disabilities are not, as a general rule, indefinitely detained on this basis.

Even if the High Court finds that such schemes are constitutional, there is a need to consider the human rights implications of indefinitely detaining those suffering a mental illness. An exploration of alternative options should be conducted to ensure those with intellectual disabilities are treated equally, as is mandated by the CRPD.

Bernadette McSherry has received funding from the Australian Research Council. Her book, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment, will be published by Routledge New York in August.