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Research Report: Taking justice into custody: summary report, Justice issues paper 2
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Taking justice into custody: summary report, Justice issues paper 2  ( 2008 )  Cite this report



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Summary of legal issues, state of inmate, features of environment, key barriers to addressing legal needs and policy implications, by stage of incarceration


Legal issuesState of prisonerFeatures of the environmentKey barriersPolicy/service provision implications
CHARGED AND IN DETENTION
Phase characterised by acute personal and legal crisis in the context of the prisoner experiencing impaired cognitive capacity and having very limited access to legal advice and support
Criminal law
Bail
Child protection and custody
Personal property and pets
Notification of employer
Shocked and/or feeling anxious and fearful
Possible drug and alcohol intoxication or withdrawal
Possible unstable mental health
Limited financial capacity
Possible limited proficiency in English, literacy problems, and/or cognitive delay
Focusing on criminal matter — other civil issues not a priority
May not seek or receive informal support because of distance, lifestyle, sense of shame, and/or belief that release is likely (on bail or because there will be no charge)
Crowded police/court cells that lack privacy for legal consultation
Little access to telephones
No access to library
Legal Aid available for bail but not for criminal matters at time of arrest
Limited time with duty lawyer at bail hearing
No or limited access to prison welfare support
Little access to legal information or advice about criminal charges, particularly for those without private representation at the time of arrest
Confidentiality compromised when speaking to legal adviser in police or court cells
Personal capacity may be limited by intoxication, shock, lack of appropriate medication for mental illness and anxiety but crucial statements may still be made
Limited financial capacity may impact on ability to get bail
Detention may be sudden and unexpected
Resources for longer appointment times with legal advisers, taking into account the often reduced capacity and high need of prisoners at this time
Training for lawyers about factors affecting prisoner capacity (e.g. drug and alcohol impairment, mental illness and the impact of a chaotic history or lifestyle)
Provision of time and space for private legal consultations in police cells
Assessment of and assistance with immediate non-criminal needs (e.g. housing, child care, employment, property and pets) especially if held in police cells for extended periods
Consideration of a legal advice service for prisoners with urgent civil/family legal issues in police/court cells where prisoners are held for extended periods
REMAND
Phase characterised by a need to simultaneously address criminal issues and prevent or address civil/family issues when unfamiliar with the systems, suffering from a reduction in personal capacity (e.g. withdrawal and stress) and coping with imposed time constraints because of court dates and time limits for notifications
Criminal law
Bail
Housing (tenancy and mortgage payments)
Employment/ business related legal issues
Social security
Ongoing need to organise affairs relating to family and children
Prisoner continues to be in shock, and is feeling unsettled and highly anxious
Prisoner unsure about length of time to be spent in custody
Possible drug and alcohol intoxication or withdrawal
Re-establishing appropriate psychiatric medication
Unfamiliarity with available help and processes in prison
Court processes and outcomes not well understood
Limited financial capacity
Possible limited proficiency in English, literacy problems, cognitive delay and/or mental health problems
Focusing on criminal matter — other civil issues not a priority
May not be aware of full range of outstanding civil issues
Tendency to have informal arrangements for child care, property, housing and debt
May have limited knowledge of prison processes and culture
Most remandees in maximum security, which is a highly stressful environment
Phone cards may take time to be functional
Staff shortages lead to custodial officers being stripped from duties such as sorting the mail and setting up phone cards Vulnerable prisoners may be placed on protection, which has more restrictions on movement and limits out-of-cell hours
Restrictions on movement experienced within the correctional centre when first received due to monitoring by prison staff
Prisoner may not receive induction information because of lack of resources
Prisoners legal advice service has limited time to spend with each prisoner
Limited window of time for lawyers to attend prison (e.g. due to lockdown times) or for inmates to telephone lawyers (e.g the lockdown occurs in the early afternoon before the lawyers are out of court)
Prisoners cannot directly receive telephone calls in prison
Time limited telephone calls and a limited number of telephones available
Legal advice service lawyer may not be able to give advice outside his or her area of expertise e.g. on civil/family issues because he or she has specialised as a criminal lawyer
Frequent movement of prisoners between correctional centres may disrupt communication with lawyer and informal intermediaries
No internet access to legal information
Prisoners must use intermediaries for assistance with legal problems
Obtaining legal information from library may entail delays
Limited access to computer to read briefs
Transit to court long and may involve transfer to another prison (avoided if hearing by AVL)
Prison culture discourages use of custodial staff for information
Personal capacity may be limited by intoxication, shock, depression, anxiety, re-establishing psychiatric medication and uncertainty about time that will be spent in custody
Problems associated with phoning legal for advice because of prisoner classification, restriction on movement, delayed telephone approval, limited time available on telephones, competition for telephone use and lawyer not available during prison operating hours
Prisoners reliant on publicly funded legal services because of poor financial capacity — yet these services are limited by resources
Access to legal advice given in person reduced because of lockdown, prisoner classification, timeliness, movement between prisons and low resources of publicly funded legal services
Reduced capacity to give instruction to lawyers because of comprehension difficulties, privacy and limited time with adviser
May not receive legal mail in time to prepare for court because mail distribution is delayed (e.g. delays may occur because the officer responsible has been placed on security related duties during staff shortages)
Intermediaries delay or fail to carry out tasks related to obtaining legal assistance
Reduced capacity to access legal information because of prisoner classification, restriction on movement and delayed responses to legal information requests
Difficulty understanding legal documents and court processes because of complexity, limited proficiency in English and literacy problems
Transportation to court hearing on trucks is highly unpleasant and prisoners may plead guilty to avoid it
Criminal matter takes priority to the possible detriment of civil/family legal issues
Unfamiliarity with formal and informal prison ‘rules’ may leave them vulnerable and/or unable to initiate obtaining assistance
Assessment of remandees’ civil and family legal needs
Clear, reliable and timely information for prisoners about how to access legal assistance for civil, family and criminal law problems from jail
Strategies to ensure that prisoners in reception, segregation and protection can access legal assistance
Clear and consistent information and support for DCS staff about their role as a link to legal assistance (e.g. consideration of courses such as ‘law for non-lawyers’ for key custodial and other staff like Wing Officers, Welfare Officers and Community Corrections Staff)
Continuation of the PLS weekly visiting legal advice clinic, with funding to allow for longer appointment times
Continuation of visits by the ALS field officers
Maintenance of LIAC information and staffing in all prison libraries
Persons (staff and prisoner peers) who may assist prisoners to complete library request forms are clearly identified to prisoners and trained appropriately
Develop phone cards that are transferable between prisons
Consideration of ways to improve telephone communication between prisoners, legal and government services (e.g. instituting a message service for lawyers trying to contact prisoner clients and setting up special telephone numbers for prisoners without automated waiting periods)
Increasing the accessibility and availability of welfare staff/staff that can assist with welfare issues (e.g. advocacy and contact with government agencies)
Provide community legal education for longer term remand and sentenced prisoners on issues including housing, debt/finance, child custody, domestic violence issues, immigration and employment
Increase opportunities for prisoners to act autonomously in address their legal issues (e.g. enable access to government agencies such as SDRO)
SENTENCED
Phase characterised by prisoners having time to take on outstanding legal issues and are no longer in crisis, but more distant from issues outside of prison and have fewer legal resources
Appeal sentence/conviction
Access to children and other family matters
AVO/ADVOs
Prison disciplinary matters
Assault or other accidents in prison
Victims compensation restitution
Outstanding warrants and DNA testing
Unpaid fines, child support, DOH, Centrelink and other debts
Defamation
More familiar with available processes and culture in prison
Receive treatment for mental illness and alcohol or other drug problems
DEPENDING UPON LENGTH OF SENTENCE
More involved in work and education programs
Has links within jail to other inmates and staff
Less connected with life outside prison
Most sentenced prisoners in lower security prisons
Longer out-of-cell hours
May still be transferred between prisons
If in a rural/regional location, higher costs are incurred for telephone calls and, consequently, there is less access to the prisoner’s private lawyer as well as to family/friends
At the time of our interviews, limited and outdated legal information materials were available at sentenced jails (LIAC material are now distributed)
No direct access to law library based in MRRC
Free telephone calls to Legal Aid but prisoners have to pay for telephone calls to private lawyers
Little or no resources to assist with resolution of civil/family legal issues
Limited access to formal hearings for civil/family law matters
Prisoners must have money and be prepared to pay for certain charges, such as telephone calls to their private lawyer, with the cost being higher if the prisoner is transferred to a regional prison
Difficulties accessing solicitor when transferred to a prison away from the prisoner’s usual place of residence
Loss of connection with the outside world reduces prisoners’ motivation to address outstanding legal problems
Limited access to current, relevant legal information materials from sentenced jails
For those on short sentences, limited access to education or other programs and there is less time to ‘settle’ into jail and address issues
For those on longer sentences, prisoners are more entrenched in prison culture and are less likely to report assault by other prisoners
A more passive approach to addressing issues may evolve during the prison sentence
Accessible information sources (e.g. other prisoners) may not have reliable information
Regular specialist civil/family legal advice clinics in sentenced jails
Maintenance of LIAC information and staffing in all prisons
LawAccess number charged as a local call on all prisoners’ phone cards
More formal streamlined processes for prisoners to contact relevant government agencies (e.g. SDRO to address fine-related debt and DOH concerning housing debt)
Increasing the number of welfare staff/staff that can assist with welfare issues, including advocacy and contact with government agencies
Further explore and evaluate the use of AVL for the provision of legal advice services in prison
Improved systems of contact between prisoners and lawyers (e.g. reliable message system and mobile numbers)
Better access to forums for resolving civil/family matters
Calling in of warrants to enable the prisoner to serve time concurrently
PRE-RELEASE
Phase characterised by an increasingly urgent need to prepare and be eligible for release in the context of the prisoner experiencing
anxiety concerning his or her release, partly stemming from an inadequate knowledge about the situation outside of prison
Securing parole
Outstanding debts
Identification documentation
Deportation and immigration issues
Outstanding warrants
Unpaid fines
May be more comfortable in prison than outside
May feel heightened emotions about leaving prison, either nervous or eager
Possible unrealistic expectations of post-release life
Lower security
May be placed in rural/regional location, which leads to increased costs of telephone calls, less access to non-local lawyers and more difficulty in making arrangements for post-release support
Limited information on civil/family law matters
Limited places in courses, which prisoners may need to attend so that they can be eligible for parole
Parole hearing conducted at a distance to prisoner’s prison
Lack of access to up to date accurate legal information because of barriers to accessing a law library and/or out of date library content
Willingness to agree to parole conditions that can’t be met
Less access to lawyers because of geographical location
Failure to attend court or parole hearing on the basis that, by leaving their current prison to attend their hearing, they will lose standing and privileges
Cannot meet parole requirements because insufficient places on required courses
For short stay prisoners, less time to address outstanding legal issues and to prepare for release
Support and assistance to address outstanding legal issues:
• outstanding warrants
• commence child access arrangements
• payment of fines to regain license
• deportation and immigration
Establish familiarity with resources/networks that may be continued outside of prison (e.g. LIAC and LawAccess)
Sufficient places/organisation of courses to allow prisoners to meet eligibility requirements by the end of their non-parole period
Alternatives to travelling for, and otherwise not participating in, parole hearings
Provide sufficient information/education about basic life skills, such as opening bank accounts, regaining a drivers licence, obtaining identification such as a Medicare card and accessing legal assistance outside of prison
POST-RELEASE
Phase characterised by an eagerness and a need to rebuild their life while having to deal with the reality of multiple obligations, few financial resources, absent or outdated skills, poor housing options and an unstructured environment
Complying with parole conditions
Social security debt and proving social security eligibility
Housing debt
Identification documentation
Outstanding fines and other debts
Police attention and harassment
Discrimination issues when trying to find employment and housing
Access/custody of children
Victims compensation restitution
Capacity to meet responsibilities reduced by lack of autonomy in prison
Deskilled
May be stressed, overwhelmed or fearful
Face recurring alcohol or other drug and/or mental health issues
Lack of support network due to release into a new area or relationships damaged prior to incarceration
No drivers licence
Stigmatised because of imprisonment
Reduced financial resources
Out of touch with current technology, procedures and social mores
Accustomed to acting passively and/or aggressively
May have few social supports and be tempted back to negative patterns of behaviour
Greater access to legal services than current prisoners
No, inappropriate, or temporary housing
May be subject to multiple compliance regime (parole, Centrelink requirements, AVO/ADVOs, methadone, etc.)
Unstructured environment (particularly if not on parole)
Old networks linked to substance problems and/or criminal behaviour
Restrictions placed on people with whom the person can associate
Lack of support and multiple responsibilities may lead to breach of parole or re-offending
Housing and reduced financial resources may make it difficult to regain custody of children
Re-connection with family/friends may make it difficult to avoid drug or alcohol use and criminal activity
Difficulty in modifying passive yet aggressive behaviour patterns to meet social expectations especially when dealing with services/authorities
May have made unrealistic arrangements/commitments that are prone to break down and may place them at risk of breaching parole conditions
including with housing, employment and reintegrating with family/community to assist in the prevention of parole breaches and going outside the law to meet needs
Upon release, all prisoners are provided with:
• LawAccess number
• PLS number (if need assistance to vary parole conditions)
Information for Community Corrections staff about legal services for their clients (at the very minimum, knowing about and giving out the LawAccess telephone number)
Consideration of courses such as ‘law for non-lawyers’ for Community Corrections staff
Information for support agencies/welfare staff about legal services available for their ex-prisoner (and other) clients. At the very minimum, giving out the LawAccess telephone number
Recognition by authorities of the multiple obligations that prisoners experience while trying to re-establish life outside prison


  


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Grunseit, A, Forell, S & McCarron, E 2008, Taking justice into custody: the legal needs of prisoners - summary report, Justice issues paper 2, Law and Justice Foundation of NSW, Sydney