Taking justice into custody: the legal needs of prisoners ( 2008 ) Cite this report
The aim of this research was to explore the capacity of prisoners to:
Legal and administrative context
To place this study in context, there needs to be some assessment of whether accessing legal information, gaining legal representation and participating in legal processes for prisoners is incompatible with the function of imprisonment, as administered by the DCS. A discussion of the broader legal and administrative context of the project is given below, preceded by a brief background to relevant prison policy in NSW.
The Nagle Royal Commission
In 1978 the Report of the New South Wales Royal Commission into New South Wales Prisons was handed down by the Honourable Mr Justice Nagle. The Nagle Report (Nagle) exposed the excessive violence and brutality within NSW prisons at that time, and made 252 recommendations for substantial reform of the system. The closed and secretive administration of the system as it was then was also highlighted as an area of concern. The Nagle Report is a key reference as it signalled a new direction for the administration of corrections in NSW.
A fundamental premise of the report was that prisoners should be perceived as citizens — with the legal rights and protections of other citizens. On this basis, the report outlined five principles to guide future planning for Corrective Services. In summary, these principles were that the intervention of prison should be only used as a last resort, for the shortest possible time, at the lowest appropriate security classification, recognising that it is the deprivation of liberty itself, which is the penalty, not the harshness of the time served. Nagle also proposed that an 'inmate should only lose his liberty and such rights as expressly or by necessary implication result from that loss of liberty' (NSW Royal Commission into NSW Prisons (Nagle), 1978, pp. 53–55). In other words, within the constraints of their imprisonment and the law, prisoners should have the same 'access to justice' as other citizens.
Notably, Nagle not only commented on the need to alter the fundamental principles underlying correctional policy, but examined the capacity of the system at the time to apply these principles. He observed:
Pertinent to this study was that in 1981, the Legal Aid Commission of New South Wales (Legal Aid NSW or Legal Aid) established a limited interim service to prisoners, providing representation at visiting justice hearings and an advice service in some jails. In 1986, the Prisoners Legal Service (PLS), a specialist service for prisoners within the criminal law division of Legal Aid was permanently established (Legal Aid NSW, 2006a pp. 9–10). The PLS continues to operate in NSW prisons.
The notion of 'prisoner as citizen' was not unique to the Nagle Report. Rather, it was part of and reflected a broader theoretical shift in the way that imprisonment was being understood (see Coyle, 2002, 2005). In short, the emphasis was shifting from imprisonment as the simple containment of offenders, to a focus of rehabilitating or resocialising offenders back into the community. The view of the prisoner as an 'imprisoned citizen' rather than as a person who had forfeited their citizenship was also reflected in the changing role of the prison officer. Lombardo (1981; 1989 pp. 2–6) described a shift in the role of prison officers from simple custodians to having a 'human service' role. Their formal and informal interactions with inmates were seen to contribute to the goals of imprisonment; both custodial and rehabilitative. The position description and applicant guide for correctional officers today reflect this change (NSW DCS, 2006a).
Since the Nagle Report, the NSW prison system has been subject to a number of other inquiries, most of which dealt primarily with broad policy concerns of the appropriateness and impact of imprisonment. Key reports from these inquiries which have covered issues relating to the legal or access to justice needs of prisoners include:
Overall, the number of inquiries into corrections in the last five years is indicative of the state of change both in correctional environments around Australia and in correctional practices. The Standard Guidelines for Corrections in Australia, jointly issued by the departments of each Australian state and territory responsible for corrective services, described these many changes as follows:
Current policy position
The stated mission of DCS, as set out in their 2004–2007 Corporate Plan, is 'reducing re-offending through secure, safe and humane management of offenders (NSW DCS, 2004b, p. 1). The values and principles outlined in the plan, which guide Corrective Services in NSW include (inter alia):
Preliminary investigation of the literature concerning prisoners suggested a relationship between legal need and re-incarceration. In particular, studies have identified the detrimental impact of accumulated legal and other social problems on the ability of a released prisoner to become re-established in the community and avoid offending (Borzycki, 2005; Baldry, McDonnell, Maplestone & Peeters, 2003; Aboriginal and Torres Strait Islander Social Justice Commissioner, 2002; Dutreix, 2000; Stringer, 1999). Problems cited include debt (including fines), housing and family matters such as child residency. Given this, the aims of the administration of prisons to maintain the welfare of prisoners when incarcerated and reduce their chance of re-offending once released may be negatively affected if legal matters are not attended to during incarceration. Therefore the role of prisons as broadly stated by DCS administration is compatible with facilitating prisoners' capacity to address their legal needs in prison.
More specifically, it appears that there is no barrier at law that precludes imprisoned people from securing legal advice and participating in legal processes. For example, Section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that inmates may attend courts (including Children's, Federal and Family courts) whilst incarcerated. Further, while the right to legal representation for any person, including prisoners, is not enshrined in Australian law,4 the DCS Operations Procedures Manual for all prisons in NSW makes the following provision in relation to accessing legal resources:
One of the first issues that needed to be defined was the target group of our project. Broadly speaking, the term 'prisoners' could include people who have been arrested and are in police custody, people in jail or juvenile detention, and people who are detained by the Department of Immigration and Citizenship (DIAC). While all of these groups may face access to justice issues, the focus of our study was on prisoners whose 'confinement was the responsibility of a corrective services agency'. That is, people who were held in full-time custody in a NSW correctional centre.Periodic detainees and those on home detention were excluded from the project. However, offenders in police/court cell complexes managed by DCS are included.5 The sample was further restricted to adults as the Juvenile Justice System (covering people aged younger than 18 years) is sufficiently different to the adult system to warrant separate investigation.
However, to fully appreciate legal need in this context, we have also drawn upon the experience of people recently released from jail. Their experiences remain pertinent to the legal needs of serving inmates for several reasons:
'Access to justice'
While we recognise that 'access to justice' can be construed more broadly than this, we have not, in this study, analysed broader notions of 'rights' or 'justice', beyond what the law currently states. Rather, the project has endeavoured to investigate issues of access to justice according to the law as it stands. However, the legal landscape for prisoners differs in some ways from that of other citizens. There are some laws and regulations that apply only to prisoners (such as the law and regulations surrounding parole or behaviour in prison). There are other laws which specifically exclude prisoners or certain prisoners from particular privileges or 'rights' held by other citizens (such as the right to vote in an election). These are described in Appendix 1.
In order to appreciate the access to justice issues that prisoners experience, we first had to establish what types of legal problems are faced by prisoners, or are likely to develop during the course of, or as a result of imprisonment. We have explored criminal, civil and family law issues facing inmates, as well as the circumstances associated with those problems developing. In terms of assistance with legal problems, we have looked at help provided by legally trained professionals, as well as the assistance provided by non-legal advocacy and support agencies/personnel, both within and outside the jail system, to resolve or prevent legal problems.
In addition to the above, in our examination of prisoners' ability to access justice we have analysed both the capacity of inmates to access 'end product' events such as legal advice or court attendance, as well as the intermediary steps that lead to those events. This includes, for example, the ability to obtain information about how to contact a lawyer from prison or how to get to visit the prison library. These intermediary steps, as will be shown in subsequent chapters, are especially important in the prison environment and have assumed a prominent role in our discussion of access to justice. Accordingly, 'access' to justice has been treated more broadly than just physical access to legal information, advice, representation, or legal processes. It has been taken to include the efficacy of that access, for example the quality of a prisoner's interaction with their lawyer.
This report is divided into three main parts: background, results and analytic chapters. The first part provides the broader context to the study and includes a description of prisons and prisoners in NSW along with a review of the literature on prisoners and their legal needs (Chapter 2). This part also includes the method used to collect the data for this analysis in addition to a description of the inmate sample (Chapter 3). The second part reports on the raw results of the study, specifically: the legal issues reported by interviewees in the sample (Chapter 4) and the opportunities and barriers to access justice described by the interviewees (Chapter 5). The third part of the report contains the analysis and discussion chapters. Four analytic chapters (Chapters 6–9) examine the factors underlying the barriers described in Chapter 5. The discussion and policy implications chapter (Chapter 10) also includes the conclusion.