A vulnerability inspired Universal Design of Justice
| Date | 01 July 2022 |
| DOI | 10.1177/1462474521989806 |
| Author | Jennifer C Sarrett |
| Published date | 01 July 2022 |
| Subject Matter | Articles |
Article
A vulnerability inspired
Universal Design
of Justice
Jennifer C Sarrett
Emory University, USA
Abstract
The US criminal justice system is built on the notion of the liberal, autonomous subject
who chooses to engage in criminal activity, rather than one that addresses the under-
lying factors that lead to crime. I argue that by combining Vulnerability Theory, a
feminist legal theory focused on universal human vulnerability, and Universal Design,
a disability approach aimed at creating access for the widest range of bodies and minds,
we can create a system that necessitates an analysis of how social institutions are
related to risk for criminal justice involvement to reduce the harms perpetuated by
criminal justice involvement. Applied to criminal justice reform together, I develop a
Vulnerability Inspired Universal Design of Justice that identifies important areas of
reform throughout our social institutions in order to reduce the harms of the criminal
justice system.
Keywords
criminal justice reform, disability, feminist approach, Universal Design
Introduction
The US criminal justice system was designed to protect citizens, rehabilitate
offenders, and prevent crime, yet has evolved into an institution that often creates
and perpetuates harm and inequity. The United States has the world’s highest
incarceration rate
1
with a total of 6.7 million Americans under some sort of crim-
inal justice supervision (Bureau of Justice Statistics (BJS), 2018, 2019b).
Corresponding author:
Jennifer C Sarrett, Center for the Study of Human Health, Emory University, Atlanta, GA, USA.
Email: jsarret@emory.edu
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2022, Vol. 24(3) 324–345
However, this phenomenon does not impact communities equally. People of color–
particularly African-Americans
2
—the poor, and people with disabilities are dis-
proportionally represented in both incarceration and community supervision
3
as
well as in incidences of police violence.
However, liberal based explanations for mass incarceration—even in repudia-
tion—ignore these disparities as related to the problems of the rise in American
prisons and incarceration. For example, the neoliberal penality thesis argues that
neoliberalism has driven the increase in punishment and penality and, as such,
major reforms, such as those suggested in this article, would be antithetical to the
underlying motive of the entire criminal justice system (Lacey, 2013). However, the
neoliberal penality thesis does not fully explain the emergence of the current
increase in punishment and imprisonment, particularly in areas of the world
where neoliberalism is rising without simultaneous commitments to mass incarcer-
ation and over policing. In fact, some would argue that our current penal system is
more closely aligned with welfarist systems given an increase in civil agencies and
resources dedicated to public safety and crime response (Bell, 2011).
Classic liberalism approaches to incarceration emphasize both a shift away from
corporeal punishment in favor of incarceration in order to uphold an opposition to
physical cruelty, without an concomitant recognition of the moral cruelty of incar-
ceration (Vick, 2015), as well as an emphasis on crime rates, fear of crime, and
neutral policymaking without a consideration of systemic assertions of power and
structural violence and oppression (De Giorgi, 2014; Huq, 2018). These
approaches rely on the assumption that all citizens are equally exposed to the
risk of incarceration and the protections afforded by the system. However, they
fail to recognize the disparities we see in the criminal justice system, a neglect that,
as will be described below, is condemned by Critical Race Theory (CRT) and
Disability Studies scholars.
Rather than suggesting that there is something inherently criminogenic about
the embodied reality of being a racial minority, poor, or disabled, this paper rests
on the knowledge that the state is not adequately supporting and protecting these
communities. In this paper, I argue that Vulnerability Theory, a feminist legal
theory that advocates for increased state involvement by centering vulnerability
as the universal human condition, and Universal Design, a disability approach
inspired by creating more accessible architecture, can help build a more sustainable
and effective justice system that will both prevent criminal activity and reduce
harm. I argue that Vulnerability Theory’s emphasis on the ways social institutions
can increase or decrease one’s resilience to our inherent vulnerability provides a
deeper, more contextualized analysis of the causes of criminal justice involvement
by addressing the problems in the construct of the liberal legal subject. When
applied in concert with Universal Design, I propose we can identify specific yet
systemic changes that can reduce the inequities in the criminal justice system,
including the (over)reliance on incarceration in response to criminal activity, and
provide more justice for victims of crimes.
325
Sarrett
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