This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.
The UN Convention on the Rights of Persons with Disabilities (CRPD), to which Australia is a signatory, came into effect in 2008. Its fundamental purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. It recognises persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society. The Convention gives universal recognition to the dignity of persons with disabilities.
The CRPD also recognises that “disability” is created by society. People with impairments are disabled when they are discriminated against, hindered and excluded from the full range of society’s human endeavours. On the other hand, they may be enabled through participation in family, community, education, employment and play.
[There are] serious consequences of imprisonment for people with cognitive disabilities.
Disability in the criminal justice system
This view of the way disability is experienced and the poor protection of rights is nowhere more clearly manifested than in the criminal justice system. Key issues in relation to persons with mental and cognitive disability being enmeshed in the criminal justice system are: how persons with disabilities who have a right to support and services rather than punishment end up in prison; how they are treated when they are in prison and how to prevent them going back to prison. Little work has been done on these matters but they have become live questions in the past few years internationally and in Australia.
There are large numbers of vulnerable people, persons with mental and cognitive disabilities locked up in prisons every day in Australia. On any one day up to 40 per cent of the prison population (sentenced and unsentenced) will have a mental and/or cognitive disability. Over a year, the flow through the prison population of people with mental and cognitive disability is likely to be much higher, at around 60 per cent, as persons with these disabilities tend to cycle in and out of prison faster than those without disability. These figures are anecdotal, as disabilities amongst prisoners have been poorly recognised and assessed, so most jurisdictions do not have accurate figures.
International and Australian studies indicate that the prevalence of mental disorder amongst prisoners is significantly higher than that found in the rest of the population.
The Statistics in Australia
In Australia, around 25 per cent of Victorian prisoners have had contact with mental health services prior to their imprisonment, and males with schizophrenia and a coexisting substance abuse are over 12 times more likely to be convicted than males in the general population. In NSW the prisoner population has a high prevalence of mental illness. The twelve-month occurrence of any psychiatric disorder (psychosis, anxiety disorder, affective disorder, substance use disorder, personality disorder or neurasthenia) is 74 per cent amongst prisoners (86 per cent for females; 72 per cent for males) compared to 22 per cent in the general population. Excluding substance use disorder, almost half the reception inmates and one-third of sentenced inmates had suffered a mental disorder (9 per cent prisoners vs 0.42 per cent general population suffered psychosis, 22 per cent vs 6 per cent affective disorder, 43 per cent vs 10 per cent anxiety disorder) in the previous 12 months. This high imprisonment rate for persons with mental disorder is increasing with inmates who have previously been assessed or treated by doctors or psychiatrists for a mental disorder increasing from 39 per cent in 1996 to 43 per cent in 2001 to 49 per cent in 2009. An increasing proportion of prisoners are reporting having been admitted to a psychiatric unit previously: from 13 per cent in 1996, to 14 per cent in 2001, to 16 per cent in 2009. These growths may be due to poorer reporting in previous years, but whether this is the case or not, the figures overall indicate an increase.
[Y]oung people with disability are being caught in the grip of the criminal justice system early in their lives.
Assessments amongst the juvenile justice detention and community populations suggest even higher rates of mental health problems: in NSW most young people in the juvenile justice system (78 per cent) drink alcohol at risky levels; two-thirds (65 per cent) use drugs weekly prior to custody; over half (60 per cent) have a history of child abuse or trauma (81 per cent young women, 57 per cent young men); nearly all (87 per cent) have a diagnosed psychological disorder.
For the purposes of discussion regarding people with cognitive disability (CD) in prison, a range of cognitive impairments are covered. CD includes persons with: intellectual disability (ID) that is below 70 IQ; borderline intellectual disability (BID) that is between 70 and 80 IQ; and acquired brain injury (ABI) that results in significantly reduced cognitive functioning. These are different disabilities from mental illness and must be recognised as such. Internationally and in Australia it is reported that persons with CD, in particular persons with BID and ABI, are over-represented in prison.
Again the rate of detention of young people with CD is higher than that of adults. In a survey of juvenile offenders in NSW, 17 per cent had cognitive functioning scores consistent with a possible intellectual disability. Remarkably 74 per cent scored below the average range of intellectual functioning, compared to 25 per cent from the standardised sample. In the most recent juvenile justice survey amongst those in custody, 13.5 per cent of the young people had an IQ of less than 70 with a further 32 per cent having an IQ between 70 and 79 (BID) compared with less than 9 per cent of the general population.
As there is a high rate of graduation from juvenile justice to adult corrections, young people with disability are being caught in the grip of the criminal justice system early in their lives.
The positive results of having a social justice and rights approach can be seen in persons who become clients of the state disability service.
The serious consequences of imprisonment for people with cognitive disabilities are: entrenchment within a culture of criminality due to the tendency of those with CD to want to be accepted by their peer group; vulnerability to assault and mistreatment in the mainstream prison environment; and readjustment problems post-release as people with CD inherently have impaired adaptive skills. Persons with BID face particular difficulties. They are not recognised in the community as having a disability for the purposes of receiving support and assistance from the state disability service, but as just noted they are significantly over-represented in the juvenile and adult prison populations as a consequence of their poorer cognitive and social functioning.
But most persons with mental or cognitive disability in prison do not experience just one disability; they experience a number and almost all come from disadvantaged families and communities.
Persons with multiple disabilities
The findings of a research project on persons with mental and cognitive disability in the criminal justice system led by the author has highlighted the compounding and negative cumulative effects, for persons with disabilities, of having multiple disabilities and disadvantages (often referred to as “complex needs”). It has also highlighted the almost universal lack of recognition of these persons’ rights to have community based disability support and services when younger and even once the disabilities are identified.
Persons with complex diagnoses and disadvantages have significantly earlier police encounters, higher juvenile justice involvement, and more offences, convictions and imprisonments than persons with a single diagnosis and those with no diagnosis. Persons with CD in combination with any other disability have the highest rates of criminal justice involvement both as victims and offenders. Their offences though are almost all in the lowest 10 per cent of seriousness. Persons with complex disabilities have experienced very poor school education; high rates of having been in juvenile detention or on orders; and low disability service recognition and support. They rely heavily on social housing but have a very high tenancy failure rate due largely to being re-incarcerated and recurrence of mental disorders.
The positive results of having a social justice and rights approach can be seen in persons who become clients of the state disability service. Only one quarter of those with ID and virtually none of those with BID functioning have been clients of the state disability service. Of those clients of the disability service, 79 per cent became clients only after going to prison. Those becoming clients after going to prison fare significantly better than previously, especially in regard to stable supported housing, and much better than their peers who are not disability service clients.
The pathways for people with complex disability from an early age into ongoing enmeshment with the criminal justice system and imprisonment that emerge from the analyses above suggest an abysmal failure on the part of government, and government services to afford many persons with complex disabilities and disadvantages their rights to support, respect and dignity from childhood. By far the majority of persons with mental and cognitive disabilities who end up in prison are there for offences of low seriousness, usually to do with their poorer cognitive capacity. They should have been enabled to live fulfilling lives from childhood. As is their right.
Eileen Baldry is Professor of Criminology at the UNSW School of Social Sciences. She has published widely on social justice issues over the past two decades. Read more about her current and many recent research projects here.