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Taking justice into custody: the legal needs of prisoners   

, 2008 This report describes a study conducted by the Law and Justice Foundation of New South Wales (the Foundation) on the legal needs and access to justice of prisoners in New South Wales (NSW). This project is part of the Foundation`s broader program of research into the legal needs of economically and socially disadvantaged people, and their access to justice....


Ch 6. Prisoner Capacity


Introduction

A prisoner's capacity to identify and deal with legal issues they are facing and to actively participate in legal processes to resolve those issues whilst incarcerated is affected by a complex interplay of factors. Some factors relate to systems (legal, bureaucratic and custodial), some to individuals within these systems (inmates, lawyers and prison staff) and some to the prison culture. This chapter focuses on those factors that are related specifically to the prisoner. In particular, it examines how the capacity of inmates to address their legal needs is affected by their own:


Importantly, these factors should not be considered in isolation from their systemic context. Some of the characteristics identified as relating to the inmate are influenced or exacerbated by their environment. For instance, a lack of motivation to address outstanding debts must be considered in the context of limited financial resources and the difficulties they face in dealing with them from prison (Stringer, 1999). It is important to shed light on those aspects of a prisoner's life and skills that may affect their ability to access justice.

Histories: lives before prison

— DCS welfare officer

Among the more than 9 000 inmates in NSW jails are men and women with diverse backgrounds, histories, abilities, experiences and traits. Yet there are certain histories and characteristics that are commonly reported among the prisoner population, which can have a direct bearing on the capacity of inmates to address their legal needs. Chapter 2 provides a picture of the overall characteristics of the NSW prisoner population in terms of gender, age, ethnic or Indigenous background, education level and health status. The following analysis examines the personal characteristics of prisoners and their lives which were identified in this analysis as having an impact upon their ability to access justice. While some of the features we describe are not unique to prisoners (e.g. poor literacy), they are discussed here because of their prevalence within the prison population and their particular impact on access to justice issues in the prison environment.

It appears from our interviews that it is not uncommon that life prior to coming into custody is chaotic and, for some, spiralling out of control. According to our interviews, for many prisoners this pre-custody period is characterised by unstable living arrangements, poverty, alcohol and other drug misuse, mental illness, damaged or unhealthy relationships with family and friends, and poor histories with government agencies and other services providers. It became clear from our interviews that the impact of these somewhat chaotic lifestyles before prison both contributed to the range of legal issues with which people arrived in prison and continued to affect their capacity to address their legal issues while incarcerated. These legal issues may continue unresolved well into their post-release period.

Chaotic lives

Alcohol and other drug use, mental health issues, transient lifestyles and criminal activity were all commonly reported by our interviewees as precursors to prison. A sample of descriptions given by our interviewees characterise this period:

— Mike, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
— Malcolm, male parolee, 35+ years, non-Aboriginal, urban area

A lawyer who regularly attends prisons observed:
— Legal Aid solicitor

These comments are supported by the statistics presented in Chapter 2, which indicate a high prevalence of mental disorders (psychosis, affective disorders and anxiety disorders) and substance use disorders among inmates on reception into prison and in the 12 months prior to their incarceration.

As outlined in Chapter 4, inmates interviewed for this study commonly came to prison with a range of civil and family law problems in addition to their criminal law issues. These included accumulated debts and fines, evictions and/or blacklisting from housing, as well as child support and custody residence issues. Indeed, our research has suggested that incarceration is not just a marker of criminal law issues, but is often an indicator of crisis more generally.

One impact of inmates having pre-existing legal problems when they enter prison is that, when they are removed from the community, their legal issues often remain. Family on the outside may be directly affected by these issues whilst the inmate is in prison (Woodward, 2003). However, it is often not until release that inmates themselves feel the full effect of these unresolved issues, which may have by then compounded and generated further problems:

— Probation and parole officer, urban area

If the legal issues accumulated through their chaotic lifestyles prior to prison are not resolved during imprisonment, as the quote above suggests, people are likely to return to the community with debts, fines, housing and other non-criminal legal issues dating back to pre-prison life. These unresolved issues add to the difficulty of people re-establishing themselves in the community after a period of custody.

Damaged and damaging relationships

Adding further to the challenge of dealing with outstanding legal problems from the period before custody, prisoners may also have severed and/or damaged relationships with family and friends, government agencies (e.g. DOH or Centrelink) and other support services that could assist them with these problems in their post-release life.

Personal relationships

— Custodial officer, urban prison

It would appear from our data that the chaotic and often desperate lives inmates lead prior to incarceration could have detrimental effects on their personal relationships, and the resulting level of support they could draw on to address legal issues. For example, one inmate, Frank, commented on his difficulty in obtaining work because of the reputation he has with family and friends:
— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

A DCS officer noted that, while families can and often do play a vital role in supporting prisoners to avoid and address legal problems, their willingness and capacity to provide ongoing support may be compromised by the inmates' behaviour:
— Non-custodial staff manager, urban prison

Inmates' expectations of the support they may receive — and of their legal options — may also be quite unrealistic, given the toll that their pre-prison lifestyle has taken. The following example relates to the difficulties involved in regaining access to, or custody of, children:
— Legal Aid solicitor

For other prisoners, families and close friends have been integral to the chaotic lifestyle they were living. In these cases, inmates and workers spoke about the need for people to break ties with particular family members and situations in order to move away from illegal behaviour.
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

However avoiding this situation can be difficult when other sources of support are limited.
— Probation and parole officer, urban area

Relationships with agencies

Poor histories with government and other support agencies can also make it difficult for inmates both to resolve their civil and family law issues and to re-establish life post-release. As described in Chapter 4, service providers reported the difficulties they faced trying to re-house ex-prisoners when they had been banned by the DOH, placed on tenancy default databases (blacklists) or excluded from support services due to their previous histories:

— Legal Aid solicitor

However, the breakdown between inmate and agency may be a two-way street: with prisoners also distrustful of or reticent to re-engage with government and other agencies:
— DCS welfare officer, urban prison

This is consistent with previous research which has indicated that some ex-prisoners did not attempt to resolve DOH debts because they believed, based on past experience, that doing so would be 'wasting their time' (Baldry et al., 2003, p. 14; see also Stringer, 1999). Having a poor history with agencies also appeared to increase the isolation of inmates from the conventional world and drew them back to seeking more marginal sources of support:
— Financial counsellor

Accordingly, through often erratic and dysfunctional lifestyles inmates may have 'burnt their bridges' with those who could potentially support them during the post-release period. However, not only are family members and mainstream support services sometimes wary of inmates, but prisoners themselves can be reticent to draw on these groups for support. Having compromised their options for assistance and support, inmates may instead be drawn back towards the networks associated with their offending behaviour, thereby undermining their attempts to re-establish their lives after being released from prison.

Awareness of the damage done

An unstable lifestyle prior to custody, particularly when alcohol and other drug misuse or mental illness have been factors, may also mean that inmates are not fully aware of the extent of the legal problems that have accumulated during the period before they went into custody. Frequent changes in address prior to their imprisonment may also mean that notices and letters are not received or become lost in residential moves. In other cases, through their disordered life before prison, the person may have simply forgotten specific events or issues that have developed into legal issues. As one support worker observed:

— Homelessness worker, urban area

Ricky, a long-term inmate noted:
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Not only may inmates have accumulated legal issues through their chaotic lives prior to custody, they may not be aware of the full of extent of these issues when they are in prison. Events may also be forgotten with the length of time people spend in jail, separated from their former lives. Consequently, legal problems may accumulate but not become apparent to the inmate until they leave prison and start to re-engage with their former lives.

Informality in personal affairs

A further feature of prisoners' lives before custody that was relevant to an examination of prisoners' legal needs was a tendency for inmates to manage their financial affairs and family arrangements without recourse to formal legal transactions or processes. Examples raised in our study included informal money lending between family, friends and acquaintances, unofficial custody arrangements for children and the unauthorised sub-letting of housing. Inmates interviewed commonly reported having made relatively informal arrangements with their housing, allowing friends to occupy their accommodation while they were in custody or when they had moved elsewhere:

— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

This may be because, as perhaps is the case for people who are not inmates, informal arrangements may seem simpler, develop slowly over time, or are emergency measures that become permanent. There was also the suggestion that informal arrangements were preferred because inmates had negative perceptions of the legal system. For example, it was evident during the interviews that prisoners and ex-prisoners were often quite suspicious of the law and legal process and its capacity to deliver positive outcomes for them. This appeared to contribute to the tendency towards informal arrangements:
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

One father indicated he would deliberately avoid using legal processes to gain access to his children because of the perceived impact of the system on them:
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

Toby also indicated that he would not go to the police when he had been a victim of crime, even though this affected his capacity to be compensated for his injuries:
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

Accordingly, some inmates spoke of the legal process as potentially damaging to what were already fragile relationships and sought to avoid these processes, even if they recognised that these processes may yield benefits to them. Inmates may also be isolated from conventional processes by a history of exclusion from the mainstream community:
— Financial counsellor

In some cases, these informal arrangements may be entirely consistent with customary practices (e.g. among Aboriginal people) and is also apparent among people who have not been in jail. However, incarceration brings to these arrangements particular difficulties and consequences. One impact is that informal arrangements may result in additional legal problems because the inmate cannot protect their interests whilst in prison.
— Welfare officer, urban prison

This theme is further discussed in Chapter 8 concerning prisoners' dependence on intermediaries.

Another impact of inmates having informal personal arrangements that are made outside the law is that, if the informal agreement fails, it is more difficult to use the law to assert an inmate's rights and preferences, particularly from prison. In part, this is because inmates have little or no documentary evidence of the arrangements they have made. For instance, Sharon described the care arrangements for her two older children, who had been living with her Aunt while she was been in prison:

— Sharon, female parolee, 25–34 years, Aboriginal, urban area

Without any formal agreement, Sharon's contact with her children now she has been released from prison is contingent upon her Aunt agreeing to allow access:40
— Sharon, female parolee, 25–34 years, Aboriginal, urban area

Finally, in our interviews we also found that this preference for informal processes was also manifest in examples of violent retribution, some of which led to the inmates being incarcerated for their actions. The use of violence by inmates to resolve issues whilst in prison is discussed in detail in Chapter 9.

Consequently, our research indicates that prior to coming to prison, prisoners tend to have arranged their affairs without recourse to formal legal transactions or processes. This can manifest as informal money lending, sub-leasing of housing, unofficial care arrangements for children and the use of violence to settle matters. The tendency towards having informal rather than formal arrangements appears to be, at least, partly the result of a suspicion of the legal processes and a general isolation from conventional opportunities and processes. The impact of this separation from formal processes is that, in the absence of defined arrangements (including contractual documents), it may be difficult to negotiate resolutions when disputes do arise while one party is in prison. In this way, prisoners' ability to use the law to address problems may be somewhat compromised. Without — as they see it — being able to call upon the law, inmates may be drawn towards less conventional resolutions to their problems.

Financial capacity/resources

— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Prisoners' financial capacity and resources emerged from our analysis as a second broad characteristic to affecting how inmates meet their legal needs. According to previous research, most prisoners come from economically disadvantaged backgrounds (Butler & Milner, 2003, p. 23–24; Stringer, 1999). Incarceration further interrupts the income flow as people lose their jobs and, in some cases, their businesses when they go to jail (see Chapter 4). Once in jail, inmates' earning capacity is very limited, ranging from $12.60 a week for 'unemployment benefits' to $63.30 per 30-hour week (including a 'performance component') for highly skilled jobs in the 'business units' (prison industries). More commonly, inmates earn between $20–$30 per 30-hour week in business units and $14–$3241 per week in service industries (NSW DCS, 2006c, ss. 4.6–4.8). In addition, for some inmates, financial resources on the outside are frozen after their arrest and are subject to confiscation:
— Financial counsellor

Lack of financial resources interacts with access to justice in a number of ways. Firstly, as noted in Chapter 4 a person can be kept in jail simply by virtue of an inmate or his family not being able to raise bail:
— Custodial manager, rural prison

Inmates incarcerated multiple times may also find their family less able to assist:
— Official Visitor, urban prison

Secondly, legal representation and expenses drain inmates' and their families' financial resources. While many inmates are represented at a heavily subsidised rate or at no cost by Legal Aid or the ALS, there is a sizeable group of people who are not wealthy, but have enough income or assets to render them ineligible for legal aid for their criminal matter (Legal Aid NSW, 2006b):
— Probation and parole officer, urban area

With their freedom at stake, some inmates were reported to choose private representation in preference to Legal Aid or the ALS, even though it financially depleted them or their family:
— Probation and parole officer, urban area
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Thirdly, the depletion of financial resources through the criminal legal process also affects the type of legal support an inmate can obtain if they have any further legal problems after their initial incarceration:
— Geoff, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
— Official Visitor, urban prison

Consequently, consistent with earlier research (e.g. Stringer, 1999), it was clear from our study that most inmates left jail in a weaker financial position than when they went in. This in turn affected their capacity to re-establish themselves during the post-release period:
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Upon release, prisoners may also face additional debts arising from court costs and any victims compensation restitution for which they are liable (see Chapter 4, 'Legal Issues affecting Prisoners'). Indeed, debt is one of a number of factors (including homelessness, unemployment, addiction issues, as well as being female and being indigenous), which has been associated with returning to prison (Baldry et al., 2006, pp. 28–9). Baldry et al. (2003) found that ex-prisoners who had debt were statistically more likely to return to prison (50%) than those without debt (30%) (p. 14).

It would seem that inmates tend not to enter jail in a strong financial position. While some will be eligible for subsidised assistance from Legal Aid or the ALS, others will have to (or may choose to) engage private representation. As the additional costs of legal representation come at a time when a source of income has been lost because the inmate is incarcerated, prisoners and their families may become further impoverished through the legal process. As inmates cycle through the system for the second or third time, their financial resources, the goodwill of family and friends, and the range of options available to them for legal representation are only further exhausted. Meeting legal needs during successive terms in prison becomes more difficult to sustain and consequently any legal problems not demanding to be resolved tend to go unattended.

Prior experience of legal processes

The third area that affects inmates' capacity to access justice is their prior experience with legal processes. In our interviews, lawyers, DCS staff and inmates alike maintained that inmates were able to draw on their previous experiences with the law to better negotiate legal and custodial systems. However, it will be argued here that the level of knowledge among inmates of the laws and legal processes is not consistently high, accurate or broad enough to cover the range of criminal and civil matters they may face.

Criminal law processes

Lawyers, custodial staff and inmates all commented on the apparent depth of knowledge of the criminal law process displayed by some of the more experienced long-term inmates:


One interviewee specifically linked this knowledge with their prior experience:
However, the confidence and familiarity of some prisoners with the law and legal processes can mask gaps or inaccuracies in their knowledge. By way of example, one very experienced inmate spoke of his anxiety when faced with a legal process he had not encountered before:
A parole officer who works at a court noted how having partial knowledge, and possibly overestimating that knowledge, could work against an inmate:
Consequently, inmates' knowledge of criminal legal processes is likely to be biased towards those of their own experience. However, even with 'experience' as indicated by multiple incarcerations, inmates may not have developed the level of knowledge they are attributed with by stakeholders. Their previous experiences may have been tainted by the effects of such issues as limited education, poor literacy, mental illness, alcohol and other drug misuse, and/or the anxiety and stress of the experience itself. As will be illustrated in the next section, these characteristics militate against knowledge and skill being acquired and retained. Further, the presence of an apparently highly informed group of inmates obscures the fact that there are many other inmates who have very little understanding of the law and legal processes in general, let alone the possible course of their own legal matters.

Among the current sample, many inmates indicated that they had limited knowledge about: how to get legal information and advice within jail; what was the likely progress of their own matter; how to interact with their lawyer; and, what were the possible outcomes concerning their matter:


Another issue is that, to access legal help from inside jail, inmates must also be able to find their way through the correctional system. As described in greater detail in Chapter 8, the route to getting legal help from within jail may be convoluted, with no single obvious starting point. This is particularly confusing to inmates who have never been in custody before:
As suggested by Mike, those who have not been through legal or correctional systems before rely more heavily than more experienced inmates on support and assistance to access legal help and to participate in the legal processes.

Civil and family law processes

The inmates we interviewed appeared to have less experience and knowledge about civil and family law, than they do about criminal law:


How to engage with bureaucracies and how to appeal their decisions were two areas particularly relevant to inmates, but about which they appeared to have limited knowledge. For example:
Thus, in contrast to criminal law processes, which by definition all inmates have been subject to, prisoners may not have previously participated in a civil law process. The tendency, discussed earlier, to not arrange personal matters through the law, only contributes to this lack of experience. The gap in inmates' knowledge may be further perpetuated by a tendency to focus purely on their criminal law matter when on remand. Attention to their civil matters may be further postponed once they are sentenced, as inmates focus on surviving or making the best of prison life:
Consequently, some (usually long-term) inmates with a lot of experience with the criminal law process appear very 'savvy' about the law and legal processes, particularly criminal law. However, their familiarity and confidence about the law can mask both the gaps in their own knowledge and the presence of many other inmates with considerably less familiarity with the law and legal processes. Notably, the level of knowledge among our sample of inmates about civil and family law processes was considerably less than about criminal law, to the point where, in our interviews, the term 'legal' was commonly taken to only refer to 'criminal law'. This is consistent with inmates having less experience with civil and family law processes and the prioritisation of criminal matters over other legal issues.

At the beginning of this chapter we identified six broad characteristics of prisoners and their histories that can affect the capacity of inmates to access justice. We have discussed the impact of inmates' chaotic lives prior to prison, their financial capacity and previous experiences with the law. We now turn to issues relating to cognitive capacity, literacy and comprehension, before we turn to styles of interaction common among inmates and the impact of prison on life skills.

Cognitive capacity, literacy and comprehension


While prisoners are by no means the only people to face difficulties in reading and understanding legal documents, as a group, they are disproportionately affected by cognitive impairment and poor comprehension skills. Contributing to the high levels of cognitive impairment within the prisoner population are inmates who experience one or more of the following problems: intellectual disability; limited educational opportunities; poor literacy; acquired brain injury (ABI); alcohol and other drug impairment; and, mental illness. Limited proficiency in English is also an issue for a significant minority of inmates. Details of the prevalence of each of these issues among the prison population are outlined in Chapter 2.

A key point to make here is that within the inmate population are people who experience more permanent or long-term forms of impairment (e.g. intellectual disability, poor literacy and ABI) and people with short-term forms of impairment (e.g. alcohol or other drug intoxication or withdrawal, the impact of severe mental health episode or medication, anxiety and stress). Further, as this section will illustrate, some of the temporary forms of impairment tend to coincide with crucial points in the legal processes, such as at the time of arrest and police interview, and attending initial court hearings. This is critical because it is at these times when inmates must draw on their skills to engage with the process when they appear to have the least capacity to do so.

The capacity of an inmate to comprehend legal material and engage in legal processes may be affected by either one or more problematic issues, such as poor literacy, limited educational opportunities, limited proficiency in English, intellectual disability, ABI, substance misuse, mental health issues, anxiety and stress. The major effects of inmates not being able to comprehend legal information, advice or processes, identified in our interviews were:


Each of these issues is discussed below.

Understanding and participating in legal processes

It was evident from our research that inmates often did not comprehend the legal processes that they are subject to, commencing from the earliest stages of arrest and incarceration. Of note was the prevalence and impact of intoxication and acute mental health issues at these early stages, over and above the longer term effects of limited education, literacy and intellectual disability. For example, Ricky and Karla describe their experience of arrest and their cognitive capacity at the time:


Comments made by prison reception staff suggest that the types of impairment described by Ricky and Karla are not uncommon among prisoners first coming into prison from police custody:
There are a number of implications of the above situation. Firstly it raises questions about the competence of impaired individuals to participate in the legal processes that directly precede their custody (e.g. police questioning, etc.). Second, the capacity of inmates to identify and address legal issues arising from being taken into custody, such as housing and child custody issues, is also likely to be impaired. Finally, delaying the screening process until they are competent may mean that important criminal, civil and family law matters may be identified too late.

Inmates' lack of cognitive competence in these early stages of incarceration continues to interfere with their access to justice when they attend court. For example:


Consequently, it would seem that inmates, whether affected by drugs, alcohol, mental illness, shock and/or longer term forms of impairment, find it difficult to successfully negotiate the legal processes they are faced with during the early phases of incarceration. Their ability to absorb and impart information, so that their needs can be met, may be significantly compromised by their cognitive capacity during this period, a time when their legal needs are acute.

However, our interviews also indicated that, as inmates settle into prison, they appear less likely to be affected by alcohol or drugs and more likely to be medicated appropriately for their condition:


Accordingly, even though many inmates have very poor capacity when first incarcerated, it may be that further into their imprisonment there is a period of clarity and, for those incarcerated long enough to stabilise, an opportunity to address outstanding legal needs. However, it must be recognised that for some prisoners, intellectual disability, language barriers, very limited education or poor literacy will continue to affect their capacity to engage with legal processes throughout the incarceration process and beyond.

Using AVL

As was discussed in Chapter 5, AVL is increasingly being used to enable defendants to appear in court, without having to be physically transported to the court house. However, our interviews have indicated that appearing in court by AVL may add an additional layer of confusion for some inmates.


AVL has a particular impact on inmates who may already have difficulty understanding the court process, due to intellectual disability or language difficulties:
Lack of comprehension, whether due to the complexity of the legal process or the comprehension capacity of the inmate or both, may result in some inmates participating in legal processes with little or no knowledge of what is happening. This appears to occur even though these processes can have a profound impact on their lives. In short, the legal process may progress on the false assumption that the inmate has a certain level of knowledge and understanding. This appears to be exacerbated when inmates appear in court by AVL.

Signing documents

The issue of inmates signing legal documents without fully understanding the contents and implications of the transaction was also raised as an issue in our study. Examples were given of inmates consenting to legal transactions such as parole conditions and agreements with government agencies, without being able to read or understand the obligations they had accepted on paper. For instance, inmates had left themselves vulnerable to breaching bail or parole conditions and AVO/ADVOs, as well as contractual agreements such as tenancy documents and Centrelink agreements, because they did not understand what they were agreeing to:


A financial counsellor working with inmates further observed that:
Although again a tendency to engage in legal transactions without fully understanding the terms of that transaction is not unique to prisoners, this group are often subject to a range of obligations and conditions, the contravention of which can have considerable repercussions for them. For example, an inmate agreeing to parole conditions that they have not fully understood could well result in their return to jail.

However, it must be acknowledged that, as Elliot, another inmate identified, this lack of comprehension of the legal process may be as much a function of the language and culture of the law as it is a reflection on the cognitive capacity of inmates:


Exclusion from programs

A further issue related to cognitive capacity and participation in legal processes was raised in relation to inmates with an intellectual disability (although it may apply a little more widely than this group). According to interviewees from the IDRS and CJSN, inmates with an intellectual disability may not have the same opportunity to participate in educational programs that are required for eligibility for parole. They said:


The assertion made here is that because of an intellectual disability, inmates may not be able to join educational programs that are prerequisites for parole and so do not have equal access to early release. The interviewees went on to explain why they believed this situation occurs:
In this way, intellectual impairment becomes a barrier to participating in a legal process, namely an application for parole. It appears that the mode by which certain courses are delivered is not appropriate for such people and this renders them ineligible for the course and in turn indirectly makes them ineligible for parole.

Difficulties in the lawyer–client relationship

As indicated earlier in this report, 'access to justice' implies that, with appropriate support or representation, participants in legal processes understand and can make informed decisions that affect their participation in that process and its outcomes. Lawyers and legal assistance services are key providers of that support. However, the client is still expected to understand and be active in this relationship. For instance, they must instruct the solicitor, take his or her advice, recount details of relevant events and provide documentation. It was evident from our research that because of reduced capacity, some prisoners faced difficulties in this relationship and, in particular, in being able to communicate effectively with their lawyers. Difficulties in communications included both understanding their lawyer's advice to them, as well as articulating their instructions to the lawyer:


In Sharon's case, she took her caseworker to meetings with her lawyer so she could have someone explain what transpired to her at a later time. Workers also recognised the difficulties faced by prisoners in the lawyer–inmate relationship given the various impairments with which this group is often afflicted:
As described earlier, the shock of their situation, together with the anxiety, stress of incarceration and the legal process, a prisoner's capacity is reduced so that it is hard for them to hear the advice they are being given by their lawyers and to act accordingly:
The situation is exacerbated by the systemic constraints that commonly affect lawyer–client relationships involving prisoners:
Aspects of the systemic environment that severely compromise communication between lawyers and their prisoner clients are further discussed in Chapter 7.

A number of interviewees reported that, when inmates did not understand what they had been told by their lawyers, they did not necessarily admit to their lawyer that this was the case:


As these quotes indicate, solicitors may leave an inmate unaware that their client has not understood the advice they have been given. Consequently, not only is the client left with an incomplete picture about their case, the lawyer may also be labouring under the false impression that he or she has all the relevant facts about the matter. This is because they are not aware that the inmate could either not express themselves properly and/or did not understand that there were some particular facts they should have disclosed. Effective participation in the legal process in such circumstances is clearly undermined.

Withdrawal from assistance

Our research has indicated that as a result of not being able to read or comprehend legal material, advice or legal processes, some inmates withdraw from legal help. In some cases inmates did not to seek out legal information and assistance while, in other cases, they actively avoided help:


One worker described an instance when an inmate hid from her legal counsel because she did not understand what he was telling her:
As a result, inmates can become further alienated from the services that are there to support them:
Consequently, an inability to comprehend legal information or advice, whether because of low literacy levels, anxiety, intellectual disability or limited English, may result in inmates avoiding assistance. Perpetuating this problem is a sense of shame. Consistent with participants in other Foundation research (Forell et al., 2005, p. 122–123), some inmates in this study reportedly masked their inability to read or understand information and advice relevant to their legal problems. As a number of workers noted:
Accordingly, not only does the person avoid assistance because it is confusing, they are unlikely to be open about the real reason for avoiding help due to a sense of shame. Lawyers and workers may not be aware of, or may misunderstand the inmates' motivations for not seeking assistance, adding to the challenge of addressing their concerns.

Dependence on others

A final impact of not being able to read or understand legal documents or processes is a dependence on third parties for assistance. Inmates who cannot read or understand material often rely on others to pass on legal information, to read legal documents or to explain contracts or legal agreements (e.g. parole conditions). A good example includes inmates from non-English speaking backgrounds.


While inmates who do not speak English may have access to an interpreter at court or in formal conferences with their lawyers, they are often dependent on DCS staff and other inmates from the same language background to explain prison processes, legal processes and to interpret documents in their day-to-day life in prison. Details of the particular vulnerabilities of being dependent on a third party in a correctional environment are further discussed in Chapter 8.

Summary

Effective participation in the legal system demands a cognitive capacity, which many inmates do not have. Their lack of such capacity may be either temporary – due to acute mental illness or because of their alcohol or drug related issues – or it may be a more permanent problem because they are suffering from an intellectual or other disability. Effective participation also demands an ability to communicate relevant information succinctly (e.g. in a short conference with a lawyer before court) and to comprehend relatively complex written text and at times complicated legal language, in a very formalised and intimidating environment. The prevalence of poor literacy, low levels of education and limited English among prison inmates reduces the likelihood that the inmates will meet these demands and participate fully in legal processes.

Of further concern was the ease with which the inability of inmates to fully comprehend legal information, advice or outcomes could be overlooked. Previous experience or time inside can be taken as a proxy for knowledge, even though intellectual disability, anxiety and stress, or other cognitive impairment may have prevented information about the legal process being assimilated and retained. Lack of capacity can also be masked by bravado or silence as an inmate may be too embarrassed to admit that they did not understand or cannot read. Finally, people can be so intimidated or overwhelmed that they withdraw from legal help and, as will be demonstrated in the next section 'Life Skills', simply 'take what comes'.

Life Skills

A final aspect raised by interviewees in this study was the issue of life skills. In the context of this report, 'life skills' mainly refer to interpersonal skills (such as the way inmates interact with each other and the authorities) and their daily living skills (such as managing finances and using new technology). It became apparent that the ability of inmates to prevent and address their legal issues was dependent on having appropriate and effective interpersonal skills as well as general living skills. However, there were many examples given where inmates' capacities on these two fronts were inadequate and in some ways a function of their incarceration.

Interpersonal skills


Our interviews have suggested that some inmates are excellent at accessing services and utilising legal and administrative systems, for example: finding a lawyer, organising with SDRO to repay fines, running an appeal against their conviction or facilitating visits with children from which they have been estranged. They are skilled at dealing assertively and appropriately with government agencies and can effectively engage with and instruct their lawyers. At a roundtable of solicitors and barristers, observations included:
However, while some inmates are extremely effective at accessing legal help, other inmates are not so able to achieve the tasks necessary to effectively participate in the legal system. Two dominant styles of inmate interpersonal behaviour were identified as pertinent to inmates' access to justice in the present research. The first was a tendency to passive behaviour and withdrawal from problems and assistance. Aggression was the second style of behaviour, with appropriately assertive behaviour being less evident.

Passivity

The persistence and success of some prisoners in pursing their rights appeared to mask the fact that many more inmates are not assertive and will not take action concerning their legal issues or seek redress. Resignation and acceptance of situations, even when that situation was less than satisfactory, seemed to be one reason behind this absence of action:


Some people appeared to accept the situation as it is, because they believed any action they undertook would not make any difference:
Previous experiences have sometimes fuelled this perception that taking action is not effective:
Others felt that the process for taking action was just too difficult or felt worn down by the process:
Interviewees also identified certain subgroups of inmates, such as those with intellectual disability, as being less assertive than others. For instance:
Motivation was also reported to be impaired, for some, by medication or illicit drug use:
There were also examples of this passivity pervading inmates' relationships with their lawyers. This is problematic, as the inmate should be instructing their lawyer and their lawyer should be acting accordingly:
A theme that runs through the comments made above is that, in the view of some inmates, the odds of achieving fair outcomes through taking action were low. The passivity of inmates appears to be fuelled by the view that either there was nothing that could be done to address the problem, that the problem is too difficult to address or that the situation is just 'the way things are' and/or is what they deserved in the first place. It may also be that the depression and despondency among inmates described below contributes to these views. Further, as discussed in Chapter 9, passive behaviour — following orders and accepting the routine — appears to be reinforced by the jail culture.

Depression and despondency

It was evident from the interviews that depression and despondency contributed to prisoners' passivity in addressing their legal and other needs:


Not surprisingly, the situation inmates find themselves in can contribute their feelings of depression and despair:
Workers described the impact of depression and despondency on the capacity of inmates to ensure that their matters were progressing:
Shame

One other emotion identified by a number of inmates as reducing their preparedness to seek legal help, was the sense of shame and embarrassment about the trouble they were in, particularly when they first came into custody:


While some inmates were very active in pursuing their legal and other needs, many inmates were not so assertive. Feeding into this passivity were feelings that taking action would make no difference, that it was too hard or that they 'deserved' the situation in which they now found themselves. Low self-esteem, a depleted sense of entitlement and a sense of shame, together with depression and anxiety, also appeared to act as barriers to inmates taking action to address their legal issues. Certain groups of inmates, such as Indigenous inmates and inmates with cognitive impairment may be particularly vulnerable to this passive, defeated state. Finally, the broader literature has suggested that prisoners' levels of passivity may also increase and that they may become more socially withdrawn as they settle into prison life (Paulus & Dzindolet, 1993, p. 164).

Aggressive, not assertive, behaviour


Inmates' lack of assertiveness was a common theme raised during our interviews. In some circumstances this appeared to result in the passivity described above. However, in other cases inmates were reported to revert to more agitated and aggressive behaviour:
Some inmates described aggressive forms of behaviour as 'their way of doing things' or the way to achieve a result:
The boundaries between assertive and aggressive behaviour may not always be clear and for some inmates, aggressive behaviour had assisted them to achieve their goals. Indeed, like passive behaviour, it appeared that aggressive behaviour can be reinforced in custodial settings (see Chapter 9). In this case, aggression can aid survival in prison, to maintain status among other inmates or gain attention from service providers:
With a tendency towards either passive behaviour or aggressive behaviour, inmates were reportedly poorly practised at being assertive in order to gain assistance. Further, the behaviours that are conventional in the prison context, such as, aggressive 'survival' style habits suited to the prison yard, are likely to be counter productive in non-prison settings.

Impulsivity

Another factor contributing to more aggressive styles of behaviour, according to a small number of interviewees, was a degree of impulsiveness and impatience evident among inmates:


Impulsiveness also presents a particular challenge for inmates once the physical boundaries and routines of prison are lifted post-release. Inmates report not always being able to cope with the loss of these boundaries after their release. This may leave them vulnerable to re-offending:
Previous research has identified impulsiveness as a characteristic of those committing certain types of criminal offences and, by association, a trait of certain subgroups of prison inmates. For instance, Makkai and Payne (2003) reported from their study of incarcerated drug offenders that:
In a discussion of the epidemiology of prison violence, Butler and Kariminia (2005) assert that 'the link between impulsivity and offending has long been established in the criminology literature'. International literature reports high levels of Attention Deficit Hyperactivity Disorder (ADHD) among adult prisoners (e.g. Roesler et al., 2004 and Rasmussen et al., 2001). Having reviewed relevant studies, Barkley, Murphy and Fischer (2007) concluded that 'adults who engage in antisocial activities, especially as reflected in adult prisoners, are more likely to have ADHD than would be expected by chance alone' (p. 309). Butler and Milner (2003) also draw a link between impulsivity and brain injury in their research into the health of NSW inmates. Their data on the prevalence of high brain injury among NSW prisoners is outlined in Chapter 2 of this report.

In summary, our analysis suggests that inmates tend towards both passive behaviour and/or aggressive behaviour and appear least practised and less skilled at dealing with issues assertively. Further, these behaviours, although generally maladaptive, may actually reflect modes of behaviour that achieve inmates' goals in the prison environment (see Chapter 9).

Preferred modes of communication

Another aspect of interpersonal skills concerned the modes of communication in which inmates best preferred. It became evident in our interviews, that some inmates had difficulties with certain forms of communication. For instance, one officer identified many male inmates as being poor at communicating effectively by telephone:


We identify the mode of communication as an important issue because telephone based services probably represent the most direct, accessible professional legal advice available to inmates. Face-to-face legal advice was identified as the preferred mode of communication for most inmates, but due to the systemic barriers identified in Chapter 7, this form of advice is less readily available, particularly for civil and family law matters.

The other mode of communication open to inmates is by letter. However, as identified earlier, the low literacy and education levels within prison reduce the utility of this form of communication for some inmates. Accordingly, inmates' own variable personal skills and styles of communication add another layer of complexity to the provision of legal assistance in prison.

Summary

Styles of interaction used by the inmate population, namely passivity and aggression, and inmates' preferred modes of communication (e.g. face-to-face, or at times, fist-to-fist) interact with the issues identified earlier in this chapter, which affects inmates' capacity to ask for legal assistance, understand the advice or information given, and to appropriately participate in legal processes. While some inmates are very effective at getting their needs heard and addressed, many more inmates are not so assertive, to the extent that they will not seek to address problems they are facing or get any assistance to do so.

In contrast, other inmates may resort to behaviour patterns that have been adaptive in the prison or other contexts and are aggressive in their attempts to address their needs. Again, the frustration of trying to get information about the progress of their legal matters and to address legal problems from within jail may further encourage this type of response. Once the very defined boundaries, routines and support networks of prison are removed, some inmates find it difficult to successfully modify these behaviours to those more conducive to receiving assistance on the outside. While this may also be true of people institutionalised in other settings, it remains a pertinent issue for prisoners.

General living skills

Having operated outside the mainstream before coming to prison, as argued earlier in this chapter, some inmates come to jail not highly skilled or practised at effectively managing their personal affairs or dealing with conventional society:


This is particularly the case if people had led the types of chaotic lifestyles described earlier:
While inmates may undertake education courses in jail to improve particular skills, there is little scope within the routine of prison for inmates to make decisions about or take responsibility for their day-to-day lives. Furthermore, inmates are detached from day-to-day responsibilities of the outside world such as budgeting, paying bills, caring for children, arranging work or finding accommodation. A number of stakeholders suggested that inmates lose the confidence and capacity to perform some of these daily tasks:
For those who have been in the system a long time, some may fear their release because of their lack of skill:
— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

In an analysis of the effects of long-term incarceration, MacKenzie and Goodstein (1985) described a process of prisoners becoming 'institutionalised':
The separation of prisoners from their issues 'on the outside' has also been identified in the literature as an effect of time in prison (Paulus & Dzindolet, 1993, p. 149 and MacKenzie & Goodstein, 1985). This description appears to combine a number of other characteristics of inmates described in this chapter — the increasing passivity and the loss of confidence and skill — demonstrating how these characteristics and phenomena interact and confirm one another.

Yet it is not just the case that an inmate becomes deskilled at managing themselves and their affairs while in jail. While inmates are incarcerated, technology in the outside world is rapidly changing and moving on. By the time they are released, inmates may not be familiar with, or at least not confident to use, technologies and communication mechanisms, which have advanced since their incarceration.

For instance, recognising that prisoners have no access to mobile phones or the internet, an inmate jailed for, say, five years may have no experience of internet banking, have never used BPAY, or filled out an application form online. They would not be familiar with SMS messaging or third generation mobile phones. An inmate who has been incarcerated for 10 years may have never seen the 'Google' search engine, and may be alarmed at the extent of information that is available on the internet. All inmates are coming out into an environment where mobile phones are replacing landlines as a primary form of contact/communication. Thus inmates may be uncomfortable or at least unfamiliar with technologies that are helpful in accessing legal assistance.

Conclusion


This chapter has outlined how the personal histories and experiences of inmates, their cognitive capacities and personal characteristics all contribute to the legal issues faced by prisoners and their capacity to resolve their legal needs. It seems opportunities to access justice may be missed because of (among other things) barriers relating to the inmate's personal capacities.

Prisoners commonly reported that their lives had been spiralling out of control prior to their coming into custody. They had commonly experienced mental illness, alcohol and other drug misuse, difficult and unhealthy family relationships, criminal activity, prior custody and poverty. As a result, inmates often had gone to jail with multiple legal issues (criminal, civil and family), the extent of which they were not necessarily aware. Further, inmates had tended to have made financial, family and living arrangements outside formal legal processes. Having severed or damaged connections with sources of assistance and lacking trust in formal legal processes, some inmates were also reported to be drawn towards more marginal solutions to their issues. Some prisoners saw the most ready course of action to resolve issues as being those outside the law (e.g. informal negotiations), and in some cases, against the law (e.g. violent retribution or 'settling' of a score). The range of options that inmates saw as open to them appeared further limited by their usually depleted financial resources and lack of appropriate documentation.

To successfully address legal issues, it helps for inmates to be motivated, tenacious, articulate, patient, organised and familiar with the law and the relevant legal processes. In contrast, the profile of the prisoners in NSW is characterised by poor literacy, mental health issues, histories of alcohol and other drug misuse and cognitive impairment. Many prisoners have had limited or interrupted education. Periods in custody, separated from society and its processes, only lessen inmates' confidence and skills at being able to function constructively when they return to the community. Without recourse to the necessary skills or support to address legal issues, inmates tended towards maladaptive interpersonal styles.

A particular concern raised in this chapter was the ease with which an inability of a prisoner to comprehend legal information, advice or outcomes could be overlooked. Assumptions can be made about how much a prisoner has learned and understands about the process, from their previous interactions with the law. These assumptions may be wrong, particularly if the inmate did not have the capacity to 'take in' what was going on during those earlier processes. Further, inmates may mask any lack of capacity by bravado or by silence, because they are too embarrassed or overwhelmed to admit that they do not understand the advice or cannot read the information. Difficulties understanding and engaging with lawyers and the legal process also appeared to alienate inmates from using the law in their interests, with some prisoners actively avoiding legal help. Inmates were reported not to use the legal system to redress injustice because, in their experience, it was intimidating, incomprehensible and unlikely to operate in their interests. When compelled to participate, some people did so in a state of ignorance and ensuing anxiety.

While many of the characteristics identified in this chapter — intellectual disability, alcohol and other drug related impairment, passivity, aggression and a tendency to shy away from formal legal processes — are not unique to prisoners, the impact of each of these characteristics on access to justice is exacerbated in a custodial setting. When prisoners are released from jail, their prison time adds another layer to their increasingly complex histories. Inmates return to the community carrying their status as 'ex-prisoners', with attitudes, demeanour and skills that undermine their chances of surviving in the mainstream world.



39  MIN refers to the Master Index Number, which is an identity number given to an inmate when they are first incarcerated. Prisoners retain this number for all subsequent incarcerations.
40  It should be noted that Sharon.s placement of her children with an aunty, while not formalised in mainstream law, reflects a common construction of family in Aboriginal societies whereby .the family unit in Aboriginal societies is extended with many relatives, and often whole communities, sharing child-rearing responsibilities with the biological parents.. (LRCWA, 2006, p. 276).
41  The figures given are as at 31 March 2006. The higher figure of $32.40 a week includes a 35c per hour loading for .essential positions. such as head cook, motor mechanic, plumber, carpenter, etc.