Justice MDIA3010_18 MDIA3010_2ndFeature MDIA3010Tue12.00

Criminalising Disability

People with disabilities, particularly cognitive or psychosocial disability, represent 18% of Australia’s overall population but account for half of the total prison population. Inside prison, this group are at serious risk of abuse. Supporting diversion of people with disability away from the criminal justice system and into community support will break the cycle, researchers say.

Saskia Mabin.

Almost 50 per cent of people serving sentences in Australian prisons have a disability.

Prisoners with disabilities are locked in solitary confinement for extended periods of time and suffer physical and sexual abuse in Australian prisons, an incriminating report by Human Rights Watch revealed in February.

Across all 14 prisons that Human Rights Watch visited in Western Australia and Queensland, inmates with disabilities were found to be “easy targets” of violence, perpetrated by other inmates and prison staff.

Aboriginal and Torres Strait Islander prisoners are significantly overrepresented in this group and by 2020, are predicted to reach fifty per cent of the prison population. Disability often goes undetected in childhood among this cohort, Human Rights Watch reported.

Graphic created by The Conversation 2017 (https://theconversation.com/three-charts-on-australias-booming-prison-population-76940)

The report documented 32 cases of sexual violence and 41 cases of physical violence. In one case, a prisoner had been repeatedly raped by an inmate who was his appointed “carer”.

Prisoners interviewed by Human Rights Watch said they did not report abuses against them out of fear of reprisal and because they did not think they would be believed.

Solitary confinement for prisoners with a disability is a common form of detention for behavioural issues, the report found. Prisoners are kept in detention units with no meaningful human contact for 22 hours or more a day for periods of weeks, months and, in some cases, years.

“The staff terrorise people in the DU. ‘Heel, dog, heel,’ they said to me,” a male prisoner with a psychosocial disability told Human Rights Watch.

“They opened up the grate [in the cell door] and laughed at me. I swallowed batteries in front of them. [One officer] spat in my face. He said, ‘I will punch your teeth all over the cell.”

A solitary confinement cell at Brisbane Women’s Correctional Centre, Queensland. Daniel Soekov, Human Rights Watch 2017.

Both Queensland and Western Australia state governments responded to the report, saying they would investigate its claims

Prison staff admitted to the Human Rights Watch that they did not have adequate training to deal with prisoners with disabilities or mental health illnesses and to distinguish between behaviour that can be attributed to someone’s disability or to disobedience, the report said.

“There are more people in the prisons with intellectual disability than ever before because the disability system that has supported them has fallen away,” said Professor Leanne Dowse, Chair in Intellectual Disability and Behaviour Support at UNSW.

Professor Dowse’s research focuses upon people with a cognitive impairment who are in the criminal justice system. The issue, she says, is a severe lack of community support services for vulnerable people with multiple needs. This results in a justice system that criminalises disability.

“This group are known as the churners…our research shows that they go in and out of prison on average about 5 times a year,” she said.

“Their most common offences are theft, low level violence and public order type offences.

“These aren’t white, middle class people with happy families and living in group homes on the north shore. These are Aboriginal people, they are people with complex, corrosive social disadvantage. Their trajectory into the system began a very long time ago and it wasn’t necessarily due to their intellectual disability.”

“They end up going in and out for their whole lives, partly because the only system that manages them is police and justice.”

Churners are often expelled from schools and fall through the cracks because “no services want to deal with them”, said Professor Dowse. She said they are also unsupported by the NDIS.

“What we’ve moved to in the NDIS is a system of personalisation, individualisation, and marketisation…(It) sounds all great about choice and control but there are several key problems,” said Professor Dowse.

“Our siloed approaches to policymaking and service provision just almost make it impossible to recognise and address the needs that the group have.”

The NDIS will develop pathways for people from social disadvantage and with complex needs and eventually pilot and test these, according to their website.

Lotus Glen Correction Centre, a male prison in northern Queensland. Half of the prisoners in this facility are Aboriginal and Torres Strait Islander. Daniel Soekov, Human Rights Watch 2017.

Support services for people with a cognitive disability in criminal justice proceedings saves the state government $1.28 million a year, a 2017 economic evaluation of the Criminal Justice Support Network (CJSN) found.

The study, conducted by Professor Dowse and her colleagues, found that the assistance provided by caseworkers in helping clients with cognitive impairments to understand and exercise their legal rights led to better criminal outcomes for clients and significant savings on costs associated with custody, community supervision, police and courts.

People with a cognitive impairment who receive court support are three times more likely to receive a section 32 diversionary order, than those who do not, the report found.

“Rather than say, ‘do you understand that, we say to them ‘tell us what you understand.’ It’s that change in language that can make a massive difference,”said Kelly Watson, Manager of the Criminal Justice Support Network.

The Cognitive Impairment Diversion Program (CIDP) is a two-year pilot program funded by NSW state government aimed at providing early intervention to divert people away from prisons and into community support.

The CIDP involves government and non-government partners, and operates in two trial courts, in Penrith and Gosford.

“There needed to be some kind of early intervention program to try and better support and divert people into disability and community support rather than criminalise them,” said Benjamin Garcia Lee, who manages the NGO component, provided by the Intellectual Disability Rights Service (IDRS).

“A screening will occur if they think the person has some kind of cognitive impairment. They will then ask for an adjournment through the person’s solicitor for 8 weeks to undertake full neuro-psychological assessment,” said Benjamin.

“This is a really breakthrough part of the project because this population group have had trouble access(ing) neuropsychologists to do assessments…it’s an incredibly expensive thing.

“(We) offer that person intensive case management alongside the court matter with a view to putting together a holistic support plan to hopefully support them to be diverted out of the criminal justice system.”

Magistrates have been “amazingly receptive and amazingly supportive” of the program, said Benjamin.

“Since February we’ve had 12 clients go right through the program and 10 of those have been diversionary orders. That’s a bit unheard of.

“What we’re finding is that people are engaging with the conditions that end up in their orders in a way that we haven’t necessarily always seen.

“I feel confident that’s because the person is at the centre of that work. …(They are) actively involved in identifying and working through the supports that are missing for them and what they’d like to have, so they are very willing to engage and derive the benefits they can from those supports.”

“If there’s any message I’d love to get out there it is that targeted, person centred early intervention works. And we are now developing evidence base for that.”