Why Australia's prison system can be 'terrifying' for people with an intellectual disability

A new website aiming to help people with intellectual disabilities get fairer outcomes in the criminal justice system is about to be launched in Victoria. Here, a former inmate tells SBS News why the support matters.

It wasn’t until Claudia* was in custody in her 30s that she realised she’d been living with a disability for decades.

“I became aware of a big change in me when I was 17, but I wasn’t sure what it was,” the 48-year-old told SBS News.

Twenty years later, as she was entering prison, she was diagnosed with an acquired brain injury (ABI), a condition caused by post-birth damage to the brain and which affects cognitive skills and behaviour.

“I suspect I received my ABI from violence in my childhood home,” Claudia said. “As my life went on, I went on to experience violence at the hands of others, as well.”

Claudia* says she found it hard to engage with the complex legal processes happening around her.
Source: SBS

Throughout adulthood, experiences of domestic violence, homelessness and substance abuse saw Claudia repeatedly come into contact with the justice system as an offender.

While presenting to police, lawyers and magistrates with visible injuries, few offered Claudia the support she felt she needed.

According to disability rights advocates, many disabilities, like Claudia’s, are hidden and can be misconstrued as uncooperative or drug-affected behaviour. 

Claudia said she also struggled to remember her court dates or engage with the complex processes occurring around her.

“I was always quite frightened. I felt very alone [by] not being able to communicate with the person who was supposed to be helping me,” she said.

“I met very heavy-handed male police officers. Lawyers never had time to learn anything of value about me when I was being represented.”

“And being in front of the magistrate, someone making such life-changing decisions about me, was really terrifying.”

‘Early intervention critical’

People with disability, particularly cognitive disabilities, are over-represented in Australia’s criminal justice system.

Data released in May showed Australians between the ages of 18 and 34 living with disability were incarcerated at three times the rate of those in the same age group without disability last year.

People living with disability aged 35-54 were incarcerated at twice the rate of those without disability.

Such statistics have led to the creation of a new online resource aimed at teaching people working in Victoria’s legal system about disability. It includes support on how to recognise the signs, how to learn effective communication strategies and how to refer people to support services.

The Supporting Justice website was developed by RMIT University’s Centre for Innovative Justice (CIJ) after 12 months of consultations with people from across Victoria's disability and legal sectors.

Stan Winford: "People in the justice system don’t recognise or understand people with disability".
Source: SBS

“People in the justice system don’t recognise or understand people with disability. They don’t provide people with the right support when they need it,” CIJ associate director Stan Winford said.

“We know it is very important people address issues before they reach the prison system. Early intervention is critical.

“We need to connect people with the right support at the right time, and we hope our resource will enable that to occur when people come into contact with the courts and police in the first instance.”

The website also aims to help people with disability and their supporters learn what legal support exists in Victoria - where it’s estimated 42 per cent of male prisoners and 33 per cent of female prisoners have an ABI according to the state government - and how to find out what their rights are.

The Supporting Justice website was created after a year of talks with people from across Victoria's disability and legal sectors.
Source: Centre for Innovative Justice

Claudia said extra guidance during her time in the justice system would have been helpful.

“I can’t help but feel, early on, had I been asked some very simple questions and perhaps been directed to some help, my life would have turned out very differently than it did,” she said.

"Being able to have someone learn about how to communicate with me, that [would have] made a world of difference.”

Changing the approach

The care of people involved with the law is a state responsibility but there are some federal government initiatives aimed at reducing the over-incarceration of people with disability.

Around 10 per cent of government-funded advocacy support addresses legal and justice issues each year, according to the Department of Social Services.

“The Morrison Government provides $24.5 million a year under the National Disability Advocacy Program to support people with disability access effective advocacy that promotes and protects their human rights,” a spokesperson for Social Services Minister Anne Ruston told SBS News in a statement.

“This includes support for legal issues and dealing with the justice system, and may include supporting people with disability inside prisons.”

Claudia* (R) was entering prison when she became aware she'd been living with a disability for decades.
Source: SBS

Mr Winford said reducing disability incarceration will not hinge on support funding, but rather, tweaking the approach.

“What we need from government around the country, is to be much more person-centric,” he said.

“All of these parts of the system need to work together to address the needs of the person rather than bouncing them between services, and losing them between those services, or allowing them to fall through the cracks because no one is taking responsibility for their personal needs.”

“We need to change the system [and] focus on the needs of the person, not the needs of the criminal justice system.”

Though Claudia’s battles with homelessness continued after her release from prison, through her own persistence, she secured a place in a social housing development where she has been living for nearly nine years.

From this base, she has been using her personal experiences to advocate for more recognition of disability inside the justice system.

”There is a real over-representation of people with disability in the criminal justice system, namely in prison,” she said.

“I have got to see with my own eyes and meet lots of other people who are invested in helping other human beings, but we need help.”

*Name has been changed

Published 6 November 2019 at 3:19pm
By Evan Young