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People with cognitive and psychiatric impairments are over-represented in the prison system. Shutterstock

We must do more to help people with intellectual impairments stay out of prison

Laws and policies often perpetrate and deepen the disadvantage and exclusion of vulnerable groups, especially prisoners.

Here’s just one practical example. Last week I visited someone in the new Darwin Correctional Precinct, which is now the main jail in the top end of the Northern Territory. The jail is 28km out of town and there is no bus service. Most families with loved ones in jail there, especially Aborigines from outlying communities, cannot afford the A$70 one-way taxi fare. Many prisoners just don’t receive visitors anymore.

Such isolation impacts particularly on people with cognitive impairment who are found unfit to plead – but who have been indefinitely detained. The legislative context and service settings in the Northern Territory present particular challenges. This jurisdiction offers the most obvious case for legal reform.

In 2014 the Australian Human Rights Commission highlighted the experiences of four Aboriginal men with disabilities in the NT who were deemed unfit to plead and detained in a correctional facility.

One of the men spent more than four and a half years detained in prison before being transferred to a secure care facility. If he had been found guilty of the offence he was charged with he would have spent around a year in prison.

The lack of screening and diagnostic tools means there is no definitive data on the total number of people with cognitive impairment in the criminal justice system. Nevertheless, expert opinion and estimates suggest this group is significantly over-represented compared with the general population.

People with cognitive impairment in the justice system often come from communities of entrenched disadvantage. A series of research studies commissioned by Jesuit Social Services and Catholic Social Services Australia shows a high proportion of crime comes from a small number of localities. These communities are characterised by entrenched and overlapping disadvantage across a range of indicators.

In the latest Dropping off the Edge 2015 report, high rates of disability and mental health issues coincide with high rates of crime and prison admissions. The web of disadvantage in the most disadvantaged communities is characterised by high rates of domestic violence, child maltreatment, low levels of educational attainment, and long-term unemployment.

People with cognitive and psychiatric impairments are at high risk of re-entering the justice system without receiving the crucial support they need, including assistance to reduce offending. This issue has a disproportionate impact on Aboriginal and Torres Strait Islander people given they are over-represented in both the criminal justice system and among people with disabilities.

The criminal justice system does not easily adapt and respond to the complex and varied needs of people with cognitive and psychiatric impairment. There is a serious lack of specialised screening and assessment tools, little access to appropriate therapeutic support services, inflexible and inadequate legislative schemes, and a lack of appropriate and rehabilitative diversion options.

Often people with cognitive impairment experience even harsher punishments because the justice system does not cater for their disability, or because the disability is not identified, or because it is mistaken for disobedience. People with cognitive impairment should have equality before the law and not be discriminated against by a system that fails to identify their support needs.

Restrictive sentencing regimes in the NT have serious implications for people with cognitive and psychiatric impairment. Mandatory sentencing, for example, imposes unnecessary restrictions on judicial discretion. It negates the court’s ability to take individual circumstances into consideration.

Mandatory detention has not been shown to deter people from committing crimes. It works injustice on those who have poor impulse control.

People with cognitive and psychiatric impairments deserve a health and well-being response and not just a punitive response. In the NT this would include legislative reform including the repeal of mandatory sentencing laws, amendment of bail laws, and removal of the indefinite detention of people who are deemed unfit to plead.

There is a need for appropriately resourced, accessible and specialised assessment and screening tools at all key points of the justice system (across all Australian jurisdictions).

There is also a need for appropriately resourced and specialised therapeutic support options both within the community and in prison, including in remote and regional Australia. Diagnosis and appropriate therapeutic support at the earliest opportunity could reduce the likelihood of further contact with the criminal justice system.

Prior to the federal election, a Senate committee was inquiring into the indefinite detention of people with cognitive and psychiatric impairment. Jesuit Social Services joined others in calling for an end to indefinite detention by reforming the justice system to better meet the needs of people with cognitive impairment.

People with cognitive impairments are entitled to opportunities to engage meaningfully in society. More must be done to reform the systemic legal barriers that prevent this.

Resources are needed for improved screening tools, specialised problem-solving courts, and a wider variety of therapeutic, community-based alternatives to prison.

And yes, there is a need for a bus service to the Darwin Correctional Precinct.

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