Taking justice into custody: summary report, Justice issues paper 2 ( 2008 ) Cite this report
Formal opportunities do exist for prisoners to address their legal needs, particularly for criminal legal problems, and to prevent new issues developing. Our research has revealed that prison libraries, knowledgeable staff, visiting legal services, and LawAccess assist inmates to identify and satisfy legal needs. However, what was also revealed was the vulnerability of these opportunities to being compromised by poor inmate capacity, the systemic environment, the mediated and at times convoluted pathways to assistance, and prison subculture. However, looking across these factors, a range of other observations and themes emerged from the analysis.
The first theme concerns the seemingly inverse relationship between the accessibility of legal help and the quality of that assistance. For instance, while other inmates were a very immediate source of assistance, the quality and relevance of advice given was variable. In contrast more reliable sources of assistance such as lawyers were much harder for prisoners to reach. The need to bring quality legal assistance within more direct reach of inmates and the improvement in resourcing more accessible sources were two clear implications for future policy. The recent placement of the State Library’s Legal Information Access Centre (LIAC) materials into prison libraries and the addition of the LawAccess telephone number to inmates’ phone cards were two examples of such strategies.
|But sometimes I do wish I had some knowledge to be able to answer them. You know, some knowledge with some confidence to be able to give them a response rather than, you know, ‘Go and see Welfare, speak to your solicitor, I’m only a wing officer.’
— Custodial officer
A second theme concerned the mismatches between what inmates needed to access justice and what opportunities were available. For instance, legal processes often rely on written information, and yet many prisoners are poorly educated and face difficulties with literacy. Further, resources within the systemic environment often fell short of demand for them — telephones, public legal professionals and welfare staff for example were in high demand but often, apparently, short supply. There was also evidence of mismatches between the routine and realities of life inside prison and the way services to prisoners were delivered. For example, lawyers were most accessible by telephone or in person at the times that inmates were more likely to be locked in cells unable to access the telephone. Similarly, restrictions on inmates’ movements within prison could prevent their access to the prison library when it was open.
Disempowerment was a third theme concerning barriers facing prisoners when they try to prevent or address legal issues. The pervasive need for prisoners to rely on other people to carry out tasks on their behalf (such as calling government agencies, passing on messages and arranging legal visits) meant that inmates were often not in control of obtaining information and advice on their own behalf.
Consequences included delays, essential activities not taking place at all, and the creation of unequal power relationships that sometimes were to the detriment of the inmate. Additionally, the loss of skills and resources through repeated incarceration and concomitant reliance upon others may cumulatively erode inmates’ capacity to address their legal needs on their own behalf even when released.
A final theme concerns how the capacity of prisoners to address certain legal issues varies at different stages of their incarceration. When first incarcerated, inmates are generally too unstable, stressed and focused on their criminal matters to have the capacity to focus on their longer term civil law problems. By the time they are in sentenced prisons, inmates appear to have more personal capacity to address these issues, but are faced with more systemic barriers to doing so (e.g. placement in a rural prison and less access to welfare or regular legal assistance). If civil law assistance was provided at a point in the incarceration when inmates were most able to engage with that assistance, the effectiveness of that assistance may be increased.
The following table (see page 10) summarises the changing capacity of inmates and the nature of their environment as they move through the incarceration process. It also shows the barriers they face, highlighting policy development and service provision issues.
It is important to recognise that some of the factors that affect prisoners’ access to justice may not be easy to modify or will change slowly. These include the overriding priority given to security in jails, limited resources within both correctional and legal service delivery systems, the complex histories of prisoners and the limited cognitive capacity of many inmates, particularly during early periods of custody.
|Sometimes you might need more than a few minutes but because [the legal advice service] have got so many they want to see, then they can only give you, like, two, three minutes to see you, and they’ve got to get quick details and then rush off. They need to send more lawyers out here.
— Male sentenced prisoner
However, here are some key elements that would address a number of the barriers identified in our study: