From Asylum to Prison? Legality, Morality, and Defendants with Intellectual Disabilities in Western Europe in the 1990s and 2000s

In recent decades increasingly attempts have been made for the societal inclusion of people with disabilities under the banner of diversity and with the international convention on the rights of persons with disabilities (2006) as a landmark event. Simultaneously with this inclusion of people formerly considered deviant and the dismantling of asylums, we can observe a tendency to banish and control deviant behaviour. Scholars have coined the term ‘punitive turn’, because in last decades (legal) penalties have often become stricter and mass incarceration has become a common phenomenon. Strikingly, people with disabilities represent one of the largest minority populations in prisons. This paper will investigate how the turn towards inclusion went along with a punitive turn by analyzing a series of court cases in which people with intellectual disabilities were accused of a crime. The cases, that took place in the 1990s and 2000s in Belgium, Germany and the Netherlands, are subjected to the following questions: How did the actors and judges in particular interpret the (alleged) criminal act? How was their interpretation informed by prevailing legality and morality, i.e. by existing (inter)national criminal and human rights law and popular discourses of both diversity and zero tolerance, and determined by concepts like class, ethnicity and gender? And how can we explain their interpretations? By answering these questions, the paper contributes in the following ways to the existing literature. Firstly, the relation of the inclusive and punitive turn is hardly investigated from a historical perspective. In the second place, the geographical focus will enrich the mainly Anglo-Saxon literature. Thirdly, the paper will use an innovative research design inspired by the anthropology of ethics that articulates the agency and ethical reflection of judges.