Sentencing offenders with disabilities

Abstract

Offenders with disabilities have a vulnerable status in prison. Due to inadequate facilities and a lack of care available to address their special needs in prison, their health may even deteriorate from imprisonment. The prisons carry out the sentences decided by the courts. It is therefore of interest to examine how the courts mete out punishment when the defendant has a disability. How are offenders with disabilities ‘seen’ and perceived by the penal law and the penal courts? Does the disability matter when the court metes out the sentence, and if so, in what way? Should disability matter as a mitigating circumstance? How should offenders with disabilities be dealt with in the criminal justice system? These questions are addressed in this article.

Keywords:

• offenders with disabilities
• sentencing
• imprisonment
• principle of equality

Notes

1. For a more nuanced discussion of this thesis, see e.g. Ugelvik and Dullum (2012) and Barker (2013).

2. Lovdata is an online database which includes all Supreme court decisions from 1836 onward and all appellate court decisions from 1993 onward.

3. All translations are those of the author.

4. Preventive detention is unlimited with respect to time, and incarceration can in theory last for life.

5. To compare: In Norway, most prison sentences are relatively short. In 2010, of all those released from prison, 75% of prisoners were released within 90 days. 93% were released within one year.

6. In 2002 the sanction of preventive supervision was replaced by preventive detention. Preventive supervision could be applied in addition to a penal reaction for certain groups of offenders who could be held responsible for their crimes.