Why the criminal justice system puts people’s disability ‘in the bin’ and what we can do about it – By Hannah

Jailing is Failing: Why the criminal justice system puts peoples disability ‘in the bin’ and what we can do about it

HANNAH MARCH, SOUTH AUSTRALIAN ADVOCACY & CAMPAIGN COORDINATOR, JUSTICE REFORM INITIATIVE

As a middle-class white woman, whose only previous experience of the criminal justice system was that my dad was a Police Officer, I learnt a lot about the system in the early years of my career as a solicitor in the criminal jurisdiction of the Magistrates Court. One lesson that stuck with me was the language we all used. I still remember clearly– just over 10 years ago - when my first client went from bail to custody: in the front door, out the back door. A kind Sheriff’s Officer said to me as I sat, shocked, at the bar table after the Court had adjourned: “don’t worry, you’ll get used to people being binned”.

South Australia’s prison population has risen by 49.5% over the last 10 years, from 2,077 to 3,105 people1 and more than half of that population have been to prison before2. The total South Australian population has only increased by around 8.5% in the same time. We will spend more than $361 million running correctional services every year on the current trajectory.

The language we use when the Court is adjourned is casual but frightfully insightful. Our civil society’s blunt response to people with often complex and compounding disadvantages in life is to ‘bin them’ at increasing levels and expect that response to make the community safer3 .

So who are some of the people we are imprisoning - “a punishment of last resort”4 and required for protecting the safety of the community5- at a rate so much higher than that of the general population growth? Who are some of the more than 3,000 people we are putting ‘in the bin’ and does this actually make our community safer?

How the Criminal Justice System deals with defendants with cognitive and psychosocial disability.

One group of people imprisoned at a disproportionately high rate are defendants with cognitive disability6 and psychosocial disability.7 This group of defendants are three to nine times more likely to be in prison than the general population.8 Available information also suggests that Aboriginal and Torres Strait Islander people with disability are about 14 times more likely to be imprisoned than the general population.9

We also know that people with cognitive and/or psychosocial disability are significantly overrepresented amongst the group who are charged with or accused of criminal offences.10 As expert Disability Rights Lawyer Natalie Wade points out, for some people with disability, their behaviour or approach to certain situations can be misinterpreted as crimes and some people with disability may find it difficult to tell what behaviour is appropriate or when certain behaviour is required. This leads to the overrepresentation of people with disability coming in to contact with Police and to specific barriers to justice due to their disability when charged with criminal offences.11

Although we know from research that we are imprisoning people with cognitive and psychological disability at a higher rate than the general population, we do not know precisely how many people with these disabilities are in South Australia’s prisons today, either on remand, serving a sentence, or detained after a finding of ‘not guilty’ by reason of mental incompetence. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Royal Commission) issued notices to each State and Territory to produce to the Commission information about the data kept in relation to prisoners and detainees in custody that have a disability. Counsel Assisting informed the Commissioners that “The information provided …raises questions about the sufficiency of the data collected by correctional services agencies around Australia with regard to prisoners and detainees with disabilities. It appears that generally there is insufficient high-quality data collected about the nature of the disabilities and impairments experienced by prisoners and detainees and the disability supports needs of the prison detention centre population.”12

Evidence of the impact of this treatment on people with cognitive and psychosocial disabilities

Consigning people with cognitive and psychosocial disabilities to a life in and out of our prisons sets them up to fall foul of preventative detention laws13. These laws exist in all States and Territories to protect citizens from recidivist offenders: the gross irony of course being that recidivist offenders have spent time in prisons which have neither rehabilitated them nor helped them access supports for their disabilityrelated needs so they have a better chance of breaking the cycle of offending. This is not an argument divorced from the primary purpose of the Sentencing Act: to protect the safety of the community. Why does the community accept that people – usually by complete bad luck – become victims of often violent recidivist offenders when the State has had multiple and very expensive opportunities to rehabilitate but instead chooses to detain indefinitely rather than invest in supports to prevent future offending?

The Chair of the Royal Commission,

the Hon Ronald Sackville AO KC put it thus in his opening to Public Hearing number 27: “It is neither my function nor my purpose to question a decision of the High Court. But perhaps we might wonder whether in 2022, 31 years after the report of the Royal Commission into Aboriginal Deaths in Custody, preventive detention is the most appropriate means of rehabilitating prisoners with disability and allowing them to return to their communities safely and without presenting a danger to those communities.”14

What is needed to support people with cognitive and psychosocial disabilities so they do not become trapped in a cycle of incarceration?

A critical step to reduce the number of people in prisons is to acknowledge at all stages of the criminal justice system that behaviours of some people with disabilities can be misinterpreted as crimes. For example, a person with Tourette syndrome may shout involuntarily and aggressively.15 If this happens in public and the person is approached by Police who do not listen to an explanation, the situation can quickly escalate (assault Police, resist arrest, etcetera) and the person ends up in a Police cell.

People with either or both of these disabilities also have limited access to appropriate mental health or other critical support while they are in prison. Most will be released back into the community in a relatively short period of time from remand or having served their sentence, but still lacking strong enough supports to prevent reoffending. We should be diverting more people away from detention and into community based support where possible and providing better therapeutic responses for those who cannot be diverted. Of course, noting the existing gap between demand for mental health services in this State and service providers’ capacity to provide them16 .

There is also no validated screen or diagnosis for Aboriginal and Torres Strait Islander people for cognitive impairment. The ‘Guddi Way Screen17’ has been developed to address this lack of culturally appropriate screening and has many uses, including when people are being processed in to correctional services facilities so there is at least a chance of receiving supports while in custody and when released.18

Conclusion

We don’t know precisely how many people with cognitive and psychosocial disability are in prison in South Australia today. But we do know that it costs South Australians $80,289 per prisoner per year to imprison them. There is a clear mismatch between expenditure on prisons and the relatively low investment in communitybased services. Jailing is failing all of us and we are long overdue to make a concerted effort to find ways to reduce recidivist offending that keeps our community safe, instead of binning human beings. About the author:

The Justice Reform Initiative is an alliance of people who share long-standing professional experience, lived experience and/or expert knowledge of the justice system, who are further supported by a movement of Australians of goodwill from across the country who all believe jailing is failing, and that there is an urgent need to reduce the number of people in Australian prisons. B

Endnotes 1 Australian Bureau of Statistics (ABS), Prisoners in Australia 2021, Table 15. 2 ABS, Prisoners in Australia 2021, Table 15. 3 Sentencing Act (2017) section 3 The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general. 4 Criminal Law and Penal Methods Reform

Committee (SA) (1973), Sentencing and

Corrections’ Parliamentary Paper, No. 91. 5 Sentencing Act (2017) s10(2). 6 Cognitive disability: Arises from the interaction between a person with cognitive impairment and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. 7 Psychosocial disability: a disability arising from a perceived or actual impairment(s) relating to mental health condition. 8 McCausland R, Baldry E, Johnson S & Cohen

A. (2013). People with Mental Health Disorders and Cognitive Impairment in the Criminal Justice System:

Cost-benefit Analysis of Early Support and Diversion,

PwC & UNSW. 9 Australian Civil Society CRPD Shadow Report

Working Group, ‘Disability Rights Now 2019’,

Submission to the UN CRPD Committee in response to the List of issues prior to the submission of the combined second and third periodic reports of Australia, 26 July 2019, 24. 10 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Issues

Paper: Criminal Justice System, January 2020. 11 Natalie Wade, Disability Rights in Real Life.

Griffin Press - August 2021. Pages 110 to 119. 12 Opening Address Counsel Assisting - Public hearing 27, Perth | Page 22. 13 Garlett v The State of Western Australia [2022]

HCA 30. 14 Chair Opening - Public hearing 27, Perth | Page 27. 15 Wade, N, op cit, page 116. 16 In Report 6 of 2022, The Auditor General found that reporting on mental health services does not provide information to highlight the gap between services required and services available and recommends that government obtain information on any gaps between the demand for mental health services and service providers’ capacity to provide them, and report these gaps to mental health oversight groups. 17 The word ‘Guddi’ is from a Far North Queensland language of the Kuku Yalanji people, which means

“come home, come heal, and come rest.” 18 https://synapse.org.au/creating-real-change/ourresearch-work/research-projects/guddi-way/