What Making a Murderer tells us about disability and disadvantage in criminal law

Those with learning or other disabilities need someone to back them up in the legal system to avoid injustices.

This article contains spoilers.

The most shocking moments of the true crime documentary Making a Murderer don’t involve its convicted-exonerated-convicted-again protagonist Steven Avery. They depict two police officers gently coaxing a softly spoken teenager to recount his role in a vicious crime.

Viewers of the wildly popular Netflix series know the story: Steven Avery is released from prison after serving 18 years for a rape he didn’t commit, only to find himself back behind bars for the brutal murder of photographer Teresa Halbach. A cornerstone of the prosecution’s case against Avery is the confession of his 16-year-old nephew, Brendan Dassey. The teenager is presented as an accomplice to the murder.

Dassey is described in the series as “learning disabled”, who reads at a “fourth-grade level”. He is interrogated — alone — and possibly coerced by police into confessing to rape and murder. Dassey later recants the statement, both inside and outside of the courtroom. But, ultimately, Dassey is condemned by the dubious confession and sentenced to life imprisonment for Halbach’s murder.

 Get The Latest By Email

Weekly Magazine Daily Inspiration

Dassey’s treatment should shock viewers because it shows how the system is skewed against an accused person such as Dassey. It highlights the importance of appropriate supports for people with cognitive impairments in the criminal justice system. This is as relevant in Australia as it is in the United States.

The Australian system

People with cognitive disability are over-represented in the criminal justice system. This includes people with intellectual impairments, acquired brain injuries and mental health issues. Indigenous people with cognitive disability are doubly disadvantaged.

The Sydney-based Intellectual Disability Rights Service has called for support for people with cognitive disabilities when interacting with the police. Without appropriate support, people with cognitive disability may want to please authority figures, or may not understand questions or legal cautions. They may also just want to get out of the police station as quickly as possible.

Organisations such as the Victorian Office of the Public Advocate provide “independent third persons” during police interviews for precisely these reasons. Such support might have avoided the injustice of Dassey’s case.

Disadvantage doesn’t stop at the investigation phase. Court proceedings pose a number of pitfalls for accused persons with disabilities. And it is here that Australia lags behind other jurisdictions. In the United Kingdom and Canada, defendants can be assisted by “intermediaries” who help people with disability understand proceedings and give evidence in court.

Indefinite detention

In Australia, accused persons with cognitive disabilities can be held indefinitely after being deemed unfit to stand trial. A person is deemed “unfit” if a court is satisfied that he or she cannot understand the charges, or struggles to follow court proceedings. This is perhaps understandable given the impenetrable language and alienating formality of modern judicial systems.

“Unfit” defendants are diverted out of the mainstream criminal justice system. They are never convicted of any crime. But that does not mean they walk free. They can be detained indefinitely, in mainstream prisons or secure facilities. Often, they are detained for far longer than any sentence they would have received.

Grave injustices can follow, as the recent high profile cases of Marlon Noble and Rosie Anne Fulton show. Both were found unfit to stand trial. Noble spent ten years incarcerated for a crime it now seems he didn’t commit. Fulton was detained for 22 months on relatively minor driving charges in the Northern Territory.

According to estimates by People with Disabilities Australia there are at least 100 people detained across Australia in similar circumstances; at least half are Aboriginal or Torres Strait Islander.

Numerous reviews and law-reform agencies have recommended changes to unfitness to plead laws. A recently announced Senate inquiry provides an opportunity for nationally consistent reform.

Seeking support and equality

The UN Convention on the Rights of Persons with Disabilities, which Australia has ratified, can help guide reform. The convention promotes a shift away from ideas of “vulnerability” and “specialness” towards equality and accessibility.

From this view, cases like that of Dassey, Marlon Noble and Rosie Anne Fulton are not tragedies of exploitation. They are tragedies of inaccessibility. They are failures of criminal justice systems to cater for everyone. International human rights law – and the fundamental notion of equality before the law – demands “reasonable accommodation”. This includes appropriate support for people with intellectual disability charged with a crime.

Our new research project sets out to develop such supports. Our team of researchers will partner with legal services to create and evaluate support for accused persons with cognitive disabilities at risk of being deemed unfit to stand trial. This will include a focus on support tailored to the needs of Indigenous people with cognitive disabilities.

Because – when it comes down to it – maybe all Brendan Dassey needed was someone to back him up.

Read more: Making a Murderer: why innocent people confess under interrogation


  1. ^ ()

About The Author

Bernadette McSherry, Foundation Director, Melbourne Social Equity Institute, University of Melbourne

Appeared On The Conversation

Monday, 24 July 2023 16:37

Uterine fibroids, or leiomyomas, are benign tumors commonly occurring in the uterus. They affect many women, particularly African Americans, and can lead to clinical symptoms such as abnormal...

Friday, 21 July 2023 15:37

During uncomfortably hot weather, people seek ways to cool down their homes. Air conditioners often become the default solution when temperatures rise as they provide fast and effective relief from...

Friday, 21 July 2023 14:28

  Brushing your teeth is essential for maintaining optimal oral health, but like most aspects of health, the full story is more complicated.

Friday, 21 July 2023 06:06

Are you seeking a gentle yet powerful practice that brings balance to your body and mind? Look no further than Tai Chi. 

Friday, 21 July 2023 05:40

  As the world grapples with the ongoing COVID-19 pandemic, there has been a surge of interest and concern regarding vaccines. Vaccines play a crucial role in preventing infectious diseases,...

Thursday, 20 July 2023 22:38

As the temperatures rise during the summer months, it's important to be aware of the risks associated with extreme heat.

Thursday, 20 July 2023 15:45

People who exercise only on the weekend have similar heart-health benefits as those who exercise throughout the week

Wednesday, 19 July 2023 17:42

The World Health Organisation (WHO) recently reported that around one in six couples globally are affected by infertility. For many years people tended to blame women for a couple’s infertility –...


English Afrikaans Arabic Chinese (Simplified) Chinese (Traditional) Danish Dutch Filipino Finnish French German Greek Hebrew Hindi Hungarian Indonesian Italian Japanese Korean Malay Norwegian Persian Polish Portuguese Romanian Russian Spanish Swahili Swedish Thai Turkish Ukrainian Urdu Vietnamese

Sunday, 02 May 2021 08:18

When you think about soil, you probably think of rolling fields of countryside. But what about urban soil? With city dwellers expected to account for 68% of the world’s population by 2050, this oft...

Monday, 24 July 2023 19:42

Today, mountains of calorie-rich (and often nutritionally poor) food and lakes of sugary beverages are readily available in much of the world. It’s no longer necessary to leave home — or even stand...

Sunday, 16 May 2021 14:24

The human body is an amazing thing, full of systems, organs, nerves, and vessels that work together in harmony. You’ve seen the body described as a machine, as a city, or even as a factory....

Friday, 02 April 2021 08:02

  Microdosing has become something of a wellness trend in recent years. The practice involves taking a low dose of a psychedelic drug to enhance performance, or reduce stress and anxiety.

Wednesday, 28 April 2021 08:57

Replenishing antioxidants in the body may help protect against oxidative stress and lower the risk of cancer

Tuesday, 27 April 2021 08:56

Peas, lentils, chickpeas, beans and peanuts: if it comes in a pod then chances are it’s a legume. These unassuming food crops have a special ability that makes them fairly unique in the plant...

New Attitudes - New Possibilities

InnerSelf.comClimateImpactNews.com | InnerPower.net
MightyNatural.com | WholisticPolitics.com | InnerSelf Market
Copyright ©1985 - 2021 InnerSelf Publications. All Rights Reserved.