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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....

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Ch 9. Prison Culture

Chapters 6–8 have examined how the basic capacity of inmates, the broader formal systemic environment and people who populate inmates' pathways to legal assistance affect inmates' access to justice. A final theme that emerged from our analysis was the impact of prison culture, or subculture, on addressing legal needs in prison. The following chapter will discuss the features of the subculture we believe was operating in the prisons sampled as it is relevant to inmates' access to justice. We argue that prison subculture, as a means by which social relations are shaped and understood in prison, has powerful repercussions for inmates' capacity and willingness to access justice. Practices such as the stigmatisation of inmates who report assaults and resist going onto protection are at once generated by the prison subculture and maintain it. As such, how and whether inmates may obtain assistance with their legal problems often is, at least in part, made with reference to the common understandings of what it is to be an inmate. Further, cultural effects appear to operate over and above the more functional issues of resources, access to assistance with legal problems and personal capacity.

Prison culture in this analysis

The culture of prisons has been the subject of academic inquiry from a diverse range of methodological and theoretical perspectives. Unfortunately, a review of this large and interesting body of work is not possible here. However, it is important to at least note the perspective from which the current discussion emerges: we have taken the view that, at the broadest level, there exists a dynamic, yet recognisable set of shared understandings that underpin social relations in prisons. These are not identical from prison to prison nor within the one prison over time. However, we have identified what we believe to be some common themes across the institutions we visited, themes that appear relevant to an analysis of prisoners' access to justice.

The particular facet of prison life that we are trying to convey in this chapter is how social relations in prison affect the way that inmates address their legal needs and gain access to justice. Our analysis indicates that the pursuit of legal assistance was affected not only by the more tangible aspects of individual capacity and the systemic environment, but also the location of this pursuit in a particular social environment. The character of that social environment is revealed through the explanations interviewees give in describing their own and others' experience of events that have legal implications and/or how they went about seeking legal assistance. The 'truth' or otherwise of these explanations and beliefs is not the central issue. Rather, we wanted to look at the logic behind those explanations to work out what was considered possible and acceptable, or what was excluded and diminished.

From the interviews undertaken for this study, there appear to be a number of aspects of prison culture that are pertinent to a discussion of prisoners' legal needs:

• inmates are defined and define themselves as being in opposition to correctional officers and/or even the justice system itself
• violence committed against inmates is conceived as normal in the prison environment thereby affecting the way inmates respond to assault
• common notions of what a 'criminal' is and related expectations about the treatment that may be expected by others who may provide assistance
• the notion that being a compliant inmate discourages behaviours that may assist inmates to meet their legal needs.

How each of these features of prison culture are constituted by and affect inmates' ability to address their legal needs are discussed in turn below.

Us versus them

On the outside it's different, on the inside we're all brothers, we're all family; we're all one.

That is another barrier. A big barrier is officer culture too. Jail culture … you know, it's us and them. And inmates have that, officers have that, especially from the old school.

As exemplified by the quotes given above, descriptions of the relationship between inmates and custodial staff often position the two groups in opposition to one another. This conceptualisation was recognised by both inmate and stakeholder groups and all institutions in which we conducted interviews, with the exception of the female inmates. It is not clear why it was not raised in our interviews with female prisoners, as there is evidence that the division exists in female prisons from other research conducted in Australia (see Easteal, 2001).

However, among the male prisoners, the division was sometimes described among our interviewees (officers and inmates) symbolically in terms of the different coloured uniforms worn by officers (blue) and inmates (green):

In here we don't go in bunches … we're all wearing green, that's it, no matter what you are mate. You're not wearing blue, you're wearing green. You haven't got other colours on.

The 'oppositional code' has been noted by a number of other authors conducting research in the prison environment (see, for example, Edgar, O'Donnell & Martin 2003; Lombardo, 1985; Akerstrom, 1988; Winfree et al., 2002). Prisonisation denotes the adoption of this code as 'a set of values and norms (the inmate code) opposed to those espoused by the prison staff and administration' (Goodstein, 1979, p. 248). There is an ongoing debate in the sociological literature as to whether this culture originates in the prison environment or is imported from subcultures operating outside prison (see, for example, Goodstein, 1979; Hunt et al., 1993; Winfree et al., 2002). Certainly, as noted in Chapter 6 on prisoner capacity, inmates that we interviewed often had histories of being positioned in opposition to, or outside, the law. However, our interviews suggested that whatever the origins of the subculture, an oppositional code was evident in the prisons visited for this study. This code informed both inmate and officer behaviour in relation to addressing inmates' legal issues and was sustained in the everyday practices of inter-inmate and inmate-staff interactions (Valentine & Longstaff, 1998 and Winfree et al., 2002).

Whilst this oppositional code was evident in our study, we were also made aware that the solidarity between prisoners could, at times, be overstated:

Yeah, they refer to you as a dog if you dob on someone you know. It's meant to be solidarity amongst the crims, but it's a load of crap.

... before, it was us against the screws … how you can get around their system and you played the game. But now you can't … so and so would just come up and bash you and stab you just for your runners, your watch, a ring, ear-ring.

The last two quotes convey a kind of wistfulness for former times which are portrayed as a period when the division was clearer and who to trust was more certain. However, what they also suggest is that social relations are played out in practice with less unity than the rhetoric would have the observer believe. Further and more broadly, what these views show is that prison culture gives rise to a number of understandings of social relations that may contradict and compete with each other.

What follows is a discussion of how prisoners' legal need and access to justice are shaped by social relations and in particular, the oppositional code.

Reporting to prison authorities

Several practices associated with inmates and their legal needs testify not only to the existence of the oppositional code but further ensure its capacity to affect inmates' legal needs in the prison environment. The following quotes are a couple among many that demonstrate how inmates police other inmates' behaviour with respect to reporting inmate-on-inmate violence to prison authorities, otherwise known as 'dogging':⁵⁹

I was quite scared and once I got to jail, I didn't want to be known as someone who's laying charges on somebody else. Because that can really get someone into trouble in jails, oh definitely.

[OKAY, WHY WOULD THAT BE?]

Oh well, the jail attitudes are you're classed as a 'dog', that's a jail term. I hate it, I despise the word. What it pretty much means is anyone who tells on somebody, in the form of going to the law or the police, who hurts somebody else [or] who is doing criminal activity regardless if it involves the victim. Whatever circumstances, it's still telling on someone and that can cost your life in jail.

… like I've been a victim of crime before, but … you see, in jail, like if somebody run into me and I want to press charges then that's a dog, you know what I mean? And you just don't do that.
— Dave, male sentenced prisoner on protection, 25–34 years, Aboriginal, rural prison

Reluctance to report an incident to authorities also seems to both predate and extend beyond inmates' prison terms to dealing with problems faced outside jail (see also Chapter 6):

[HAVE YOU MADE A COMPLAINT ABOUT THE NOISE?]

No. It's a funny thing, like when you've done a fair bit of jail, you get this thing, like they call you a dog if you dob … so I'm the same. I won't go to the cops over matters unless it's life threatening or it's with me family … I just can't bring myself to go to the coppers.

A couple of ex-prisoners made the explicit connection between the 'us and them' logic and receiving retribution for informing:

It's us versus the friggin' officers and if you want to go and put another inmate in, well you're going to cop the retribution from the rest of the inmates.

Reporting it to who? The Authorities? It doesn't happen, you know, just this separate entity, it's the blues versus the green …

[YOU JUST DON'T DO IT?]

No. Not unless you want to go to [a protection prison].

Accordingly, reporting an incident to the officers for which another inmate is responsible, is constituted as a betrayal of all inmates in the 'us and them' subculture. Inmates violating the oppositional code in this way are punished by being stigmatised as a 'dog' (an extremely undesirable label in prison), which is reinforced by threatened, if not actual, violence.

As alluded to by our interviewee Malcolm above, because of the dangerous consequences of informing on other inmates, one solution is for the inmate to go into protective custody. In protection, inmates have a cell to themselves and only associate with other inmates on protection. However, because protective custody is understood as the refuge of people who 'dog' as well as those convicted of certain charges such as child sex offences, the negative characterisation is only strengthened:

Well … if you feel as though you're under threat you can go into protection, which is quite a nightmare. You get locked in a cell by yourself, no showers, you lose your TV, you lose everything. I don't want to do that and, as soon as you go into protection, the general feel within the jail is that you've done something really wrong, like paedophilia or something like that and you're actually then targeted more.

And for a lot of our clients when they're on remand, the only way that they can be protected, so to speak, is to be classified in a certain way or put on protection so they're completely isolated; which does cause problems for them as well because automatically they're assumed by the other prisoners that they're paedophiles and so they then are subject to a huge backlash of abuse and those sorts of things because it's assumed that they're paedophiles.

As the latter quote illustrates, people with an intellectual disability may be disproportionately affected because of their particular vulnerability. Protection in this reading of prisoner social relations is synonymous with being certain types of prisoners; types that can draw negative and sometimes dangerous reactions within the context of the prison. The associations of being an inmate on protection reinforce the undesirable position of the informant as well as create a deterrent for those who may consider using protective custody to avoid victimisation on any basis. Consequently, the divide between 'us' and 'them', a distinction between officer and inmate, is regulated through inter-inmate behaviour, with implications for inmates' legal needs.

In a similar fashion, the behaviour of custodial officers could also be seen as policing the divide between inmate and officer through legal issues, as the following quotes illustrate. The first quote shows how the division may be maintained in terms of an officer's loyalty to his peers where an inmate was being (unfairly) involved in a prison disciplinary matter:

… with the inmates, they have their jail jobs, as every officer's got theirs. They would not go and back an inmate.

[RIGHT. THAT WOULDN'T HAPPEN?]

No, I don't think that would happen. We may say, 'Look, he's an okay fellow, he's okay on the wings', you know, and they might let him off with a caution, but at the end of the day he's still guilty.

The next quote shows how officers also may shore up the division between 'us' and 'them' in an effort to keep inmates from harm:

If an inmate doesn't like speaking to staff, I'll generally wait until he's with his friends. And I'll talk to his friends first, and then I'll talk to him. And as he sees the other inmates talking to me because I've known them longer, they generally become free and talk up with the other inmates around. And then at a later stage I'll talk to them about something I don't want to discuss with other inmates. But usually an initial interview is while I'm walking around.

It is clear in the above quote that the officer adjusts the way he interacts with his charges with reference to the potential harm afforded by a violation of the oppositional code. Through notions of loyalty and preservation of safety, inmates and officers in our study respectively reported regulating whether they would report a problem, and how they would report these problems, to prison authorities. This in turn appeared to reinforce an oppositional code of inmate-officer relations. It is important to note, however, that by consciously modifying his behaviour, the officer was not signalling that alternative ways of behaving are not possible, but rather, that the culture makes certain behaviours more or less problematic.

Seeking assistance with legal problems

From the discussion above, it is clear that informing on another inmate was considered a clear and punishable breach of a major but informal code of behaviour within the prison culture. Importantly in the context of legal assistance however, it was not only the reporting of inmate-on-inmate assault that was constituted as a betrayal of this code. It appears that the accusation of betrayal could also include speaking with officers in general.

Like when they've [got] problems or issues and then it's difficult sometimes; you can't go to the screws because, um, they don't want to be seen as a dog or something for telling.

Sometimes … you've got to remember in the prison you can't be seen to favour an inmate or be with an inmate all the time because you make him a target.

[YOU MAKE HIM A TARGET FOR OTHER PRISONERS?]

Yes.

[WHAT PROPORTION WOULD YOU SAY ARE THOSE PEOPLE THAT JUST WOULD NOT APPROACH YOU?]

The majority of them … Unless they're in dire need of something they will not approach an officer. They would not like to be seen talking to an officer. They're called dogs and sometimes it can be detrimental to them.

Accordingly, being seen talking with an officer may leave inmates vulnerable to stigmatisation at the very least and, at the worst, assault. Previous research on Australian female prisoners also noted the danger of 'friendliness' with officers being misinterpreted as collusion (Easteal, 2001, p. 26). Where this attitude prevails, asking for assistance about a legal issue from a custodial officer may become problematic. One officer remarked how first time inmates may inadvertently provoke a negative reaction because they are unaware of this informal rule:

Someone who comes in off the street has no idea what a jail's like. I used to work in a remand area. I spent quite a few years in remand. And some of the inmates that would come in off the street, they'd want to walk up to put their hands on you, shake your hands … just be a normal person, I suppose, to another normal person. But if someone else sees that they'll think, 'Oh yeah, what's going on here?' And the other inmates don't like that, especially the ones that have been in and out of jail a hell of a long time.

Consequently, the oppositional code of prisoner social relations renders approaching officers for assistance generally — and not just to report an assault/violation by another inmate — as a potential breach of loyalty to fellow inmates. New inmates may unwittingly violate the code and become the subject of suspicion by other inmates.

There was one final area where the motivation for not using staff for legal assistance was unclear but where there may be a cultural component operating — culture as derived through ethnicity. In some prisons, inmates are accommodated separately on the basis of cultural background:

You got the Koori lads in one pod, you got the Asian boys in the other pod. And you got the white Australian boys in another pod. See, and that's the only way they can control us ….

However, ethnic backgrounds had a particular impact on access to justice as, for some groups of inmates, it appeared to influence where and how inmates sought assistance. For instance a welfare officer in one urban prison described the difficulties they had had trying to reach and support inmates from Asian backgrounds (such as Vietnamese and Cambodian):

We do not get the Asian inmates coming to us for anything. … We've gone to our unit in town. We've got special posters translated. We've had target days where we've said 'We'll only see inmates of Asian decent.' We've had an open door approach where we've gone 'Friday afternoons from 1pm till 3pm. You don't have to make any appointments. … Just rock up. Come and see us.' [We] cannot access them. … No. In the six years I've been here, I would say we've never been able to access them. They rarely put referrals in. They will rarely come and see us.

This officer went on to observe:

Again, they might do that because culturally they want someone who they feel comfortable with so they've employed a solicitor of [a] similar [cultural] background. But then you'll still have a group of Asian decent inmates out there, who cannot afford private solicitors and who are still using the Legal Aid system that all the other inmates are using.

A custodial officer in another prison noted:

... Well, because we have quite a few, like Vietnamese and Chinese, and they tend to go to people, solicitors that are Vietnamese or Chinese speaking solicitors.

The welfare officer quoted above emphasised it was only Asian inmates that would not access their services: inmates from all other backgrounds did seek assistance from them. However, in a rural prison, a custodial officer suggested that some of the Lebanese inmates tended to help each other out rather than come to the officers for help:

Because they help each other out as well.

[YEAH, YEAH]

They've got a lot more resources amongst each other.

One Lebanese inmate described his reluctance to report a violent incident to an officer, because he felt he would not be believed on account of his cultural background:

… so I kept silent about it.

[WHY DID YOU KEEP SILENT?]

Because I told you, I can't do anything. Because … I don't think I, I'd find the ears to hear. That's what I feel. … Maybe it's not like that. … But that's what I think. Just the first time he [a custodial officer] said to me, 'All Muslims are dirty.'

The perception of racism extended to court, as another Lebanese inmate argued:

But, again racism is doing anything these days. Like, an Australian born Aussie turns up to court, hundred per cent, hundred per cent, he gets a better result than, than a wog,

Ethnicity appeared to add another layer to the complexity of cultural interaction within prisons. Among some inmates from non-English speaking backgrounds, there seem to be a tendency to seek help from 'us' rather than 'them' (a tendency it should be noted which is also apparent among some NESB communities outside of prison (unpublished data from Coumarelos, Wei & Zhou (2006)). In some cases, perceptions of racism from the mainstream culture and its institutions reinforced this separation. Consequently, in the case above, the 'us' and 'them' may not necessarily be solely role based, but may be ethnically based, although this issue needs more detailed exploration to elucidate further.

Staff roles

Chapter 7 already discussed how security functions are privileged over other functions either between roles or even within them. This privileging of security appears to support and even fuel this informal oppositional subculture. This was illustrated in the way assistance by welfare staff compared with assistance from custodial staff was perceived by inmates according to interviewees in this study. In short, despite coming from 'the system', non-custodial staff were seen as more appropriate and safer options for obtaining assistance (see also Chapter 8). For example:

Well, the roles are very different; I mean obviously their job is one of security, where our job is more in terms of assisting the inmates and trying to encourage them to attend programs and treatment. And so we're viewed by the officers as 'Care Bears' because we look into the reasons why, as opposed to let's just, let's have them locked up.

Consequently, although they could be seen as part of the prison system, these non-custodial workers seem not to carry the same associations in terms of the division of inmates and custodial staff. In one way, this further reinforces the oppositional subculture between the incarcerated and those who (literally) incarcerate them. One welfare officer saw this opposition as almost inevitable, taking into consideration the fundamental tasks undertaken by custodial officers and welfare staff:

I'm just again generalising here, because that's what the inmates feel. That the officers don't know anything, they don't care … they just push buttons, lock doors and do the mundane tasks. And that's the very things that keep inmates in, so there's that dislike for them anyway. And we have to be very aware of that, that we're not colluding with the inmates, because that is an integral part of being in jail as well, because the officers have to do that job. You know, they have to be officious in their duties in terms of security. Sometimes that comes across as being non-caring, being judgmental, particularly if you're a high risk offender.

There is some uncertainty whether people occupying a custodial role within the prison subculture identified in this study, can un-problematically also offer assistance to inmates. This question becomes increasingly important when the system formalises dual roles, such as when officers are also case managers. One prison selected in the current sample had further combined the custodial and assistance functions to the point where there was no dedicated welfare function. Instead, the welfare function was supposed to be conducted by the officers located in each of the units or pods. A couple of non-custodial workers expressed certain scepticism about the workability of this arrangement.

The idea of case management for a correctional officer is new and very foreign. They're security officers … that's not why they joined. I've heard them say this, you know. It's not why they joined up. They find it very difficult to get involved with case management because you might be dragging a fellow to the isolation cell or the segregation unit, or whatever they happen to call it in a particular jail, and the very next day you've got to sit down and ask them how they're going with their welfare. It's a very difficult job for them to do and I'm not convinced it can work.

It's bit of a conflict really. I mean a custodial officer one moment and then there's a death in the family the next minute. Although I will have to say, the officers really, I do think they try very hard to be personable and you know, have feeling and concern for the fellows. But still there's the mentality within the inmates of, 'Oh, he's only a screw.' That's a culture that's gone on for years. So it's hard to, it's working at it, but it takes a long time to break down that culture.

However, a different opinion was held by another custodial officer, who had to perform this dual role. This officer felt that behaviour management and a welfare role could combine synergistically to the benefit of both inmate and officer:

And we used to say, we'd crash and bash 'em one day and then we're giving them welfare calls and they're crying on our shoulders the next. It's not going to work. But it has. It has worked. I think it's changed the officers' behaviour more than it's changed the inmates.

[THAT'S INTERESTING. IN WHAT WAY?]

Well, we've had to deal with them. And if you're going to begrudge doing things for them, or if you're going to be arguing with them all the time, it makes 12 hours a hell of a long day. But if you start talking to them, finding out what they actually need and fixing their problems properly, they're not on your back all the time and there is more time to talk about sport and other things.

It would appear that there is some debate about whether dual roles for custodial officers that may blur the long held line between inmate and prison authority can function effectively to provide inmates with the assistance they require. There is no doubt, however, that such redefinitions challenge one of the major social relationships that define what it is to be an inmate. This is not to say that the roles and associated meanings are deterministic or represent the only positions that are available in the prison social order. However, the power these notions hold within prison culture does mean they at least need to be accounted for when considering how organisational functions are distributed.

Summary

In summary, prisoners and custodial officers are opposites, in one cultural understanding of inmate-correctional centre staff relations. The division between these two groups is informally but intensively monitored (by both inmates and prison staff). Access to justice may be put at risk because inmates are discouraged from seeking assistance or taking action when they have been wronged (most commonly assaulted) by 'one of us' through the notion of 'dogging'. Specifically, inmates who inform on fellow prisoners to an officer are stigmatised sometimes to the point that they need to go into protective custody. There also seems to be a further ethnically based cultural theme that may distance inmates from the assistance they need. Critically, even approaching custodial staff for other forms of assistance (such as seeking legal assistance) may still be viewed with suspicion by the inmates and may incur retribution for the inmate seeking such assistance. People new to the system may inadvertently transgress this rule, as they are yet to learn of the unspoken rules of social engagement in this context. Non-custodial staff may provide a safer option for inmates in terms of seeking assistance, however, it is argued in Chapter 7 that these human resources are already over-subscribed.

Our data and previous research indicate that interactions between staff and inmates are complex. The discussion in Chapter 8, in combination with the analysis here, demonstrates that roles are neither fully defined nor stable over time and place. The destabilisation of the code is not only possible but, in the experience of the inmates, already occurs. For example, developments in the role of custodial officers as case officers and or/the inclusion of welfare tasks along with custodial work presents a challenge to the oppositional subculture. On the positive side, combination of the two roles may engender a situation whereby greater order is maintained because inmates are able to have their needs met by staff who are easily accessible. On the negative side, such a combination of roles within the one staff position may jeopardise inmate welfare, including legal issues, because of the strength of the informal oppositional code, reinforced by the privileging of security over other functions within the prison system. That is, if the only source of that support is also the source of enforcement, the question is raised as to whether welfare issues may be satisfactorily met under the present environment.

Whilst we have argued that the subculture that sets inmates in opposition to officers may hinder the provision of assistance, its destabilisation may equally leave inmates confused about how to reliably obtain help without risking their standing among the other inmates. What is clear, however, is that the allocation of tasks and roles to prison staff does not occur in a neutral or blank environment: they become part of a dynamic and powerful set of social relations which affect and are affected by those allocations.

Violence in prison

Another aspect of prison culture that we identified as affecting inmates' access to justice is the integral part violence plays in prison life. Previous research has documented the high number of physical injuries incurred by inmates in prisons, many attributable to assault (Butler & Milner, 2003, pp. 63–66). Prisoner on prisoner assault rates (including serious assault) in 2005/06, were 15.33 per 100 prisoners (SCRGSP, 2007, Table 7A.14). This extrapolates to a rate of 15 330 per 100 000. As a point of comparison, the estimated rate of recorded criminal incidents of assault (including domestic violence related assault) in the general NSW population for 2006 was 1 072.7 per 100 000 (BOCSAR, 2008). The reported rate of assault is, at least, more than 14 times higher inside prison than in the outside community. As assaults tend to be under-reported among prison inmates and the broader population, these statistics more than likely reflect an underestimate of the true rates of assaults among these populations.

A study of prisoner drug use found that among their sample of 307 male and female prisoners drawn from 22 centres in 2003, 21.4 per cent reported being assaulted by an inmate, and 9 per cent by an officer during the prison term they were currently serving (Kevin, 2005). Further, 84.2 per cent had witnessed a fight and 36.8 per cent had witnessed greater than five fights during their sentence. In a 2002 prospective study of two NSW male prisons, one-quarter of new injury presentations during the five-month study period were attributed to assault (Butler, Kariminia, Trevaathan & Bond, 2004). The authors argue, however, that:

It is possible that intentional injuries go undetected by injury surveillance systems such as ours in an effort by prisoners to avoid coming to the attention of the custodial authorities. Misclassification of intentional injuries as unintentional is also probable in an attempt to conceal their involvement in violence or other illegal activities and uphold the prison 'code of silence'. (Butler et al., 2004, p. 153)

The data provided above, together with available research (Edgar et al., 2003) commentary (Brown, 1993; Barnes, 2001; Findlay, 2002) and formal inquiries (ICAC, 1993) all point to the under-reporting of assault and violence in prison. Some of the literature focuses on the protective custody policies that aim to protect prisoners who are victims of assault (Barnes, 2001; Findlay, 2002) — especially the observation that the risk of being labelled an informer deters many prisoners who are victims of assault from seeking protective custody (see Brown, 1993; ICAC, 1993). However, other literature singles out the nature of the duty of care owed by correctional authorities under statutory and common law (Barnes, 2001, see 'Responsibility for the safety of inmates') and the impact of certain DCS policies on victims' efforts to remove themselves from violence (e.g. the impact of classification rules, which can impede victims' efforts to obtain a transfer to another prison) (Findlay, 2002, pp. 119–120). Consequently, not only is the rate of violence apparently high for people in prison as far as it is able to be measured, there is also a suggestion that many incidents of intentional violence against inmates go unreported.

Consistent with the research described above, our interviewees held that assaults are not necessarily reported to prison authorities, or are reported as 'accidents'.

I'll tell you what happened. I got assaulted, I waited five minutes for the other inmates to get back to wherever they were going so no officer would see them leaving me, and then once they left me, I went up to the officers [and said], 'I just fell over in the shower and me head is cut.'

[SO I WOULD LIKE TO HEAR FROM YOUR POINT OF VIEW. DO YOU GET COMPLAINTS ABOUT ASSAULTS IN PRISON?]

Assaults, rapes. All that sort of stuff.

[YOU DO HEAR THOSE COMPLAINTS?]

Yeah, but … They will not make an official complaint mainly because they're in jail. The next thing is the ship [they are moved to another prison]. So they're not going to say anything.

As discussed in the previous section, the threat of further consequences from other inmates was enough for some people not to pursue a charge or claim. However, there were also other aspects of a subculture of violence that also impacted on prisoners' approach to addressing assault in prison as a legal issue.

Violence as inevitable

Among the current sample, inmates and stakeholders agreed that violence was not uncommon, although it should be noted that again it was rarely mentioned, if at all, by the female inmates. As in the previous section, it is not clear why the men and women differed in this respect as there is evidence in other research that assaults do take place (albeit not frequently) within women's prisons (Easteal, 2001). In the male prisons we visited, violence was reportedly commonplace:

I've been involved in a fight and stuff here and you know, like that's every single bloke here, you know, every day of the week. You go out there now, you sit out there for an hour or two in the yard and you'll see a fight.

I've seen a lot of fellows die over the years, probably about 10.

[FROM OTHER INMATES ASSAULTING THEM?]

Bashings, stabbings, fellows that cut their own wrists because fellows have threatened to rape them.

Interviewees gave a range of explanations as to why they thought fights occurred in prison:

With the prisons, we get a lot of nationalities who, they sort of fight for each other.

But there's no work so everyone sits around and they get into fights and all that because they've got nothing to do. And that's why they have got a lot of violence in jail because of nothing to do and nothing happens.

Put a whole heap of men together, the testosterone goes through the roof you know.

Although the sources of conflict, as theorised by the interviewees, vary from hormones and boredom to mixing nationalities, the explanations commonly position violence as a natural and expected reaction to prison conditions. The significance of this logic, as it applies to the violence experienced by prison inmates, is that it seems to negate the need to report assaults.

... no, well, I can't think of any cases where they done that [reported assault]. I don't know whether that's sort of, I think some of the guys just accept it; that's part of jail life.

The resignation inmates feel towards violence is conveyed in the following quote:

[HAVE YOU BEEN HURT OR ANYTHING?]

No, I've had three or four fights with people, but yeah fights go on every day out here.

Wade says that he has been in several fights but dismisses that as a daily occurrence. Another inmate downplayed the violence by describing them as the 'odd scruff'. It would seem that violence blends into the run of everyday life in prison and consequently inmates do not identify themselves as victims of crime but merely as people living the life that inevitably follows imprisonment. Accordingly, being the victim of violence in prison may not be pursued through authorities because it is normalised by cultural understandings of the nature of prison.⁶⁰

Violence as an solution to conflict

A number of inmates referred to a tendency towards resolving inmate conflicts between themselves rather than through formal channels. Often the resolution itself was also violent. For example:

Like, I had a blade put to me throat, because I got a good pair of shoes on. They wanted me shoes. I sorted that out in me own way. … The cell door was locked and we sorted it out sort of thing. He never got the shoes and he went on protection, so you know what I mean.

Whilst this may be consistent with the broader tendency among those who come to prison to find 'informal' solutions to problems (discussed in Chapter 6), it has a particular impact in prison. With a utilitarian view of violence, inmates see no need to involve an officer in their disagreements as the following comments illustrate:

Well, even if it did [go to a wing officer], I wouldn't you know what I mean? Like 'cause I got brought up a way, I don't back down from no one. Or if someone is talking about me, I'll go and face them and say, 'Well mate, got something to say? Then just say it to me, don't say it to him [meaning an officer], he wouldn't care.'

But we are finding the way now, there is a lot of blokes talking about this or that and we lock them in another empty cell, have the punch off, so they shouldn't get out.

[RIGHT, SO YOU SORT OF SORT IT YOURSELF?]

Yeah, well it's the best way. Without involving an officer … We get the chance to do it our way sometimes.

These inmates make it clear that their preference is to resolve conflict without resort to prison authorities and that the resolution is physical. One custodial officer explained how force and violence also enters into the interventions by custodial officers:

But once you use violence … once they've initiated it themselves, [you] usually will find that's basically the only thing they understand. And because you've jumped on them and because you've shown some force, they have that little bit of respect. And then they will talk to you a bit more, and then they don't mean to do it anymore.

Accordingly, the notion that violence serves as an effective solution to disputes in prison, independent of authorities, not only may add to the amount of violence/assaults that take place, but also may undermine the use of formal pathways in prisoners' pursuit of justice. Prison complaint processes become redundant in the face of resolutions meted out by the inmates themselves. Further, the use of domination underwritten by force, in both the informal and formal cultures, shapes how social relations are managed within prison.

Summary

Whilst there is a strong resistance to reporting incidents of violence against inmates to prison authorities because, as discussed in the previous section, of the potential negative consequences, there is also a sense that such incidents are overlooked because they are considered to be integral to life in prison. Violence is normalised in the prison environment through the frequency of its occurrence, its positioning as a natural reaction to the conditions of prison (e.g. the proximity of a large number of people and the mixing of cultures), its trivialisation and its perceived role as an effective solution to conflict. Previous research by Bottoms (1999) (cited by Edgar et al., 2003) supports this nexus between violence, social relations (as they are understood in prison culture) and seeking redress through formal prison mechanisms:

... the tendency in prison societies to rely on private justice in preference to turning to staff. While this attitude seems certain to lead to an increase in the level of assault, the norms that it is wrong to turn to staff, and that physical force in these circumstances, is a legitimate option, might make assaults an accepted part of the routine. (Edgar et al., 2003, p. 85)

Consequently, in the case where disagreements are settled between inmates, there is no need to resort to official mechanisms of complaint. When understood in this way, the need to process complaints through the administrative processes of the prison, especially in the context of the stigmatisation such a reaction invites, becomes, in many cases, obsolete. Consequently, the conceptualisation of violence as part of jail life at once normalises it and rationalises a lack of resort to formal processes of legal redress.

Criminal subjectivity

Another feature of prison culture that appeared to run through interviewees' descriptions of inmates' capacity to access justice and address their legal needs concerned the way inmates were understood in relation to the label 'criminal'. This section will discuss how 'criminals' were defined according to our interviewees and how being a criminal related to receiving assistance with legal matters.

What makes a criminal?

It is interesting to note that not all inmates conceived of themselves as criminals, irrespective of whether they had been convicted of a criminal offence and/or whether they believed themselves to be guilty of one. In distinguishing between inmate and authentic criminals, it became apparent that merely being in jail for a criminal offence was not sufficient to constitute being a criminal according to some interviewees. To illustrate, there were a number of different indicators of criminality offered by interviewees through which the concepts of inmate and criminal were distinguished:

I'm not a person camped on the street, used to take drugs or used to take smoke or marijuana and that rubbish. I came from university in [overseas country] and if I knew that what I did was not a legal act, and make problems for me that take me to jail, I would never do it. ... 'Cause I'm not criminal; the criminal has a criminality, it's not in my mind or in my heart.

… I feel let down by the system in that way. I'm not a habitual offender; I'm not ten, like convictions before it. I'm thirty-two years old … first offender, never been talked to by the police before, and I get treated as though I'm an absolute criminal. And I get dumped in here with people who are already convicted or serving life sentences, stuff like that.

Generally, personally I think it's the way I look. I walk into a law firm and they just look at you to say, 'Shit, who have we got here? Where did this criminal come from?'

From the comments made above, criminality may be signified by drug taking, being re-offending or having a particularly imposing physical appearance (this particular interviewee was large in stature and wore many tattoos). The source of these comments/behaviours conveying these conceptualisations may be the inmate or someone they have interacted with. It is interesting to note that the first two comments come from first time inmates: a circumstance where the issue of self-definition may be particularly acute. In combination, the above remarks suggest that that the label 'criminal' belongs to inmates who have been in prison before. This notion was used both as a means of marking oneself off as NOT a criminal (as with Justin and Ahmad) and as a justification of why someone was treated the way they were (as with Matthew).

The significance of the conceptualisation of criminals among inmates and those who assist them flavours how inmates address legal needs and access justice. In our interviews, this seems to occur in two main ways: perceptions of worthiness to receive legal assistance and presumption of guilt.

Criminals as undeserving

Whilst some inmates drew a distinction between themselves and others on the basis of criminality, there was a sense among interviewees that many non-inmates did not appreciate that distinction. The following quotes concern perceived treatment by a range of players in the justice system and how that treatment was understood by the interviewee as a function of being an inmate/criminal. It should be stressed that these comments are the inmates' perception of their treatment rather than the expressed views of the stakeholders themselves:

On my legal advice, no, but on the judges view, yeah. I'm not saying they're liars, but they got to believe us as well, you know. Just because we're criminals and just because we're in jail, we're not all liars.

But it's not a slow process. They [lawyers] just don't want to do it. You know what I'm saying? They have this mentality, 'Oh, fuck, he's a crim. He's a criminal, he's a terrible person.' You know? 'Leave him, he'll be all right. Tuck his file there. He'll be right. He's not going nowhere.'

There's a duty officer or something there, duty person. Yeah, he was okay … I also rang up a number that was on the form they sent me, and I got the impression, 'Bad luck, you're a crim, you deserve what you get.' So they give you the minimum help they can sort of give you.

One final comment comes from a prison librarian the value of whose work was questioned at a social occasion because she works with an inmate population:

It is very much dependant on how nice somebody wants to be. Or whether they think the inmate deserves it. And there is still that, 'They're an inmate. What do they want that for? They shouldn't get that. They should sit in their cell and rot', kind of attitude. But they are still people. Actually, I got that at a party on the weekend. And I was talking to somebody and that is more or less what she said to me. I was telling her about the librarian course and things and she said, 'Why should they get that? They are there to be punished.' I said, 'Being in jail is punishment. Trust me. It's not a place you want to go if you can avoid it.'

What is common throughout these readings of being a prisoner is the link between being a criminal/inmate and a judgement as to whether someone merits assistance. The meaning implied in each of these observations is that, if a person is an inmate and therefore a criminal, their access to assistance is deservedly compromised or withdrawn.⁶¹ The point here is to emphasise the link between an inmate feeling that they do not deserve assistance with legal problems and criminality, and the currency that such logic carries in the prison environment. While the inmate may be mistaken about the views of the service provider, their perceptions can still prove to be a barrier, as they do not believe they will be helped or given quality assistance. Significantly, this may also mean that other explanations for not receiving assistance are not entertained: explanations that may be more amenable to change, such as resources and inefficient processes. Further, referring to a logic which validates prejudicial treatment makes not taking action rational and therefore may de-motivate the inmate to act on future legal issues (as discussed in Chapter 6).

Inmates, criminality and guilt

In the previous section inmates explained how their perceived status as 'undeserving criminals' affected their access to legal assistance. Presumptive guilt is another manifestation of the merging of inmate and criminal. The following comments illustrate this presumption in the context of discussions regarding wearing prison 'greens'⁶² for AVL hearings and what this signified about the inmate:

But they don't change you out of your greens and into your civilian gear … looking guilty because he's in his greens. …. Being in greens is a big issue because you're looking very guilty. You don't want that. You want be seen as, you know, like the average Joe on the street and it's not do-able for these people.

You got some blokes that go to court in their greens on their sentencing. Now if I was the judge, I'd be thinking, 'Well this bloke doesn't give a shit what I do.' So if I go to a job interview, I'm going to wear a suit, maybe a tie, look nice, presentable, shaved. I'm showing I'm keen and I want the job, you know. Same thing when you see a judge man, this is your life. He's going to say, 'Not everybody in jail is a bad person, not everyone. There are people that get sucked in, sucked in by the, the crowd,' you know?

You know, you just try to look alright, but you're in green …

[WHAT DO YOU THINK THE SIGNIFICANCE OF BEING IN GREEN IS?]

Well I think, men can give a sort of subconscious psychological effect on the person who [is] judging you, you know. I mean, for me it's the same, you know. I can be in green or can be in [a] tie, it would be the same about how I feel about all my matters. But for the judge, or for anybody, when he sees you in green, you're already in the 'system'. And that is when you are already in the 'system', it's going to be harder to get out then.

These inmates explain how the uniform of the inmate denoted guilt in the context of a trial rather than someone for whom the evidence of guilt was being tested. As the last interviewee observes, dressed in the inmate uniform 'you are already in the system' and therefore there is a certain level of presumptive guilt that is attached to that — the uniform becomes synonymous with culpability. A similar notion was raised on appeal in the Supreme Court of Appeal in West Virginia (USA) where the appellant challenged a conviction on the basis that he was unfairly prejudiced in front of a jury because he was wearing his prison uniform. The judgment noted that:

More specifically, [the?] Appellant maintains that the jury could not fairly decide the mercy issue when a defendant is forced to wear a jail uniform during the penalty phase since the jail clothing constantly sends the message to the jury that the person wearing the outfit is in custody because he is a dangerous person and the mere sight of someone wearing a prison uniform implies a dangerous character. (State of West Virginia v Finley, No. 32961)

A rehearing of this phase of the trial was ordered (State of West Virginia v Finley, No. 32961). Indeed, the Fair Trials manual of Amnesty International is explicit about the relationship between the presumption of innocence and the wearing of prison uniform for court appearances:

Particular attention should be paid that no attributes of guilt are borne by the accused during the trial which might impact on the presumption of their innocence. Such attributes could include … requiring the accused to wear handcuffs, shackles or prison uniform in the courtroom … (Amnesty International, 2008, p. 104)

The overlaying of prison inmate and criminal guilt also provided a logic whereby inmates explained away perceived injustices as part of some karmic balancing out in crime and punishment. Our data suggested this manifested in two ways. Firstly offenders may not be recognised as legitimate victims:

[WHAT HAPPENED ABOUT THE FACT THAT YOU HAD BEEN ROBBED, DID ANY ACTION COME OF THAT?]

They didn't care. Don't care.

[DID POLICE INVESTIGATE IT OR …]

They didn't because at that point of time they classified me as a drug dealer … so it was more or less, fair enough, you sell drugs, you use drugs.

Secondly, although a person may not be guilty of a particular crime, a guilty verdict for that crime is still considered acceptable because of a sense of generalised guilt:

Like I've been away twice for something I haven't done but I thought that was just karma getting back at me for me younger days when I was bad. And I was too.

The above quotes suggest that inmates sometimes draw upon a logic which legitimises perceived injustice with respect to legal issues.⁶³ This is irrespective of whether they are an (alleged) victim or a perpetrator: if they are found guilty of a crime they did not commit, it is balanced out by previous criminal behaviour; having an offence committed against them is merely a consequence of being a criminal and therefore does not warrant action. In both cases, the label 'criminal' and the attendant foreclosure on access to justice may explain and/or legitimise the outcome.

Summary

In this section, we have argued that conceptualisations concerning being a criminal and criminality intersect with notions of guilt and inmates getting what they deserve. Inmates on certain charges, who look a certain way, who have a history of incarceration, who use drugs, or who just simply are in prison, can become marked as criminals on the basis of those characteristics. The status of 'criminal' then invokes a range of perceptions around worthiness for assistance and access to justice.

The most fundamental premise/assumption is that criminals are undeserving of help and are automatically guilty. Inmates themselves refer to this conception in order to explain their own perceived maltreatment, or to justify why they should get treated better than other inmates. This is not to say that this perception necessarily truly reflects the opinions or treatment of service providers, indeed stakeholders interviewed in this study often expressed just the opposite view. The point is rather that such thinking exists as one rationale by which inmates account for their experiences with the law and as such, may compromise inmates' access to justice because it rationalises lack of assistance and validates not pursuing legal matters.

The culture of compliance

Up to this point, the discussion of the role of culture in inmates' capacity to address their legal needs and access justice has centred on the informal culture of prison. However, our analysis suggested that the formal structure of prison also transmitted a certain culture: that of compliance. An inmate's interactions with people who can provide assistance revealed how compliant behaviour is promoted in the prison environment, in the process of addressing legal need. This section briefly examines how the culture of compliance builds on pre-existing tendencies towards passivity (see Chapter 6) and affects legal needs and access to justice.

The inmate and compliance

There was evidence among the interviews conducted for this study that some inmates may, because of the demands and deprivations of their incarceration, become institutionalised.

So the behaviours are very much, trying to please … like you say, 'Where have you been?' 'Oh, you know, blah.' And they've come from jail and they don't want to acknowledge that. As soon as they call you 'Miss', I know immediately … you've just come out of jail. Because it's just second nature to them to call you Miss all the time. But they're very, very institutionalised. Like they get up, their rooms are always really neat, they're very much like that, 'What'll I do now?'

Compliance in prison appears to be generated and maintained both by the demands and comfort of routine, and by the enforced dependence described in Chapter 8:

Of course you know, like if the worst comes to the worst, I'd just turn back to me old ways again. Because believe it or not, I friggin' liked jail to a certain extent, because you get your own room, your own TV, your own everything, your own little room, your own little world, you see a line, you just get on the end of it. Out of jail you've got more worries than you wouldn't bloody believe. Your shopping bill, your rent, your this, your that. In jail it's all done for you.

The effect of passive interaction styles as a factor in inmate capacity has been discussed in Chapter 6. What is being elaborated here is the connection between what types of behaviour are promoted or discouraged in the prison context and the rendering of assistance with legal problems.

Past research has addressed the issue of the effect of incarceration on inmates' behaviour patterns. Goodstein (1979) made an important distinction between 'prisonization' (referred to earlier in this chapter) and 'institutionalization' in her study on inmate adjustment to community life. Prisonisation denotes the degree to which the oppositional culture characterised by an active resistance to formal prison culture, is adopted by an inmate. Institutionalisation, on the other hand, arises out of the experience of prison as an institution that contains '… a number of attributes which strip inmates of individual identity – regimentation, lack of privacy, limited opportunities for decision making, relative scarcity of goods and services …' (Goodstein, 1979, p. 247) and, we would add, lack of opportunity to act directly (as argued in Chapter 8). Borzycki cites Haney (2002), summarising the impact of the formal structure of prison life and the type of inmate it shapes:

Imprisonment imposes a rigid routine on an offender that removes the potential for individual decision-making in many aspects of daily life … prisoners typically possess poor everyday life skills. In removing opportunities to exercise even these limited skills, imprisonment can lead to institutionalisation, in which a prisoner becomes decreasingly able to live independently, and may lose a sense of personal responsibility. Other manifestations of institutionalisation include hyper-vigilance, aggression, emotional over-control, and a loss of self worth. Institutionalisation can be compounded by the lack of purposeful activity many prisoners experience when in custody … (Borzycki, 2005, p. 37)

Institutionalisation therefore has been conceptualised in previous research as a deskilling process through which inmates conform to (in this case) prison conditions created by formal institutional processes and requirements. Goodstein (1979) argues that her findings from her study, which examines the degree of institutionalisation and adjustment upon release, '… provide a picture of the correctional institution as a place which reinforces the wrong kinds of behaviours if its goal is the successful future adjustment of its inmates. In the process of rewarding acquiescent and compliant behaviour, the prison may, in fact, be reinforcing institutional dependence' (Goodstein, 1979, p. 267). This passive behaviour may in turn affect inmates' capacity to access to justice.

Compliance, legal need and access to justice

In the context of examining inmates' capacity to address their legal needs, we would argue that it is not only adjustment to community life that exposes the detrimental effects of becoming institutionalised, but also the need to be active and persistent about the tasks that may occur whilst inside. For example, the following comments relate to interactions with DCS staff:

And a lot of times, new officers, new in the sense that they're not regulars in that area for that particular day, they might have a little run in with the best inmate in that wing. A total gentleman of an inmate. Suddenly he's lost his job, you know. And then we come back the next day, 'Oh, so and so has been sacked, he's been kicked out from this room and this.' 'Why?' 'Oh, he wanted such and such a thing and he didn't get it and he just mouthed off and walked away so they charged him, you know.' Little things … 'But he's my best inmate.'

Yeah. I am pretty much someone who sits back. Yeah, I don't go off at them and that stuff, 'cause I know it's not going to get me anywhere … But if you're a loud mouthed one and a troublemaker … there's no use asking them for anything because they won't do it for you. Like they'll take the paperwork but they won't put it in …

The implicit, or sometimes explicit, message in these interactions is that the demanding inmate is discouraged. In the following excerpt, a custodial manager summarises the relationship between inmates' dependence upon prison staff and the generation of appropriate behaviour in inmates:

Remember I'm here to run the unit. By doing that [they] may be dependent on us, and the officers and the staff, because they're the first port of call. And when they figure out being an arsehole's not getting anywhere, they usually think it over and go the easier way, which makes life easier for me, makes life easier for them.

Such a culture, however, risks promoting a level of a passivity which may result in the inmates not pursuing assistance when it is needed. Indeed, there was some evidence to suggest that in order to obtain help in prison, some assertiveness and persistence may be required:

Occasionally, and I know this is not the best system, but where I've had an inmate in my ear a lot, and perhaps in the officer's ear, and they've sent him up because he's in their face and in their ear, and so he sends them to me. And so he's making a lot of noise, which is not the best way to react to things I must admit. Occasionally, but if he's got a really good story … sometimes I'll ring Prisoner's Legal Service.

I have prisoners who have no difficulty getting hold of me at any time. Quite recently I had calls … particular prisoners who were very pushy and they were making five, ten calls a day, each of six minutes. So I think it may depend a bit on who you are and how pushy you are.

Accordingly, the formal culture of prison promotes a compliant and passive inmate who is rarely in direct control of his or her daily activities (see Chapter 8 in the current report, and Easteal, 2001). Inmates are rewarded with an 'easier life' if they capitulate and comply with the codes of behaviour promoted by the formal prison culture. On the other hand, obtaining assistance with legal matters may require a more persistent and assertive approach. In short, the compliance that is promoted through the punishment and reward practices in prison downplays/de-emphasises the skills which may be useful to confronting legal issues and challenging situations where rights have been transgressed. However, the compliant inmate in the prison setting is not necessarily the inmate who may effectively participate in resolving legal problems they face in prison or when they are released (Goodstein, 1979).

Also you've got to think, engaging with bureaucracies is really difficult when you've come out of one and been controlled by one for whatever period of time. [Its] really hard to engage at that level.

Conclusion

Prison culture is a factor in shaping the degree to which inmates access justice and obtain assistance with their legal issues. The culture not only informs inmates' behaviour but also that of those who provide legal services as well as those who assist them obtaining access to those legal service providers. That is, the social relations that are embedded in both the formal and informal prison culture set the context for those that populate the pathways of inmates' access to justice. Inmates may not initiate legal processes for a range of reasons, including those that have their origins in the prison culture. For example, an inmate may not report an assault perpetrated by another prisoner because it betrays a code of behaviour that pits inmates against prison authorities. In other circumstances or cases, he or she may also not report an assault because physical violence is part of the experience in prison or a belief that such incidents can be resolved by responding with further violence. In this way, the informal structures that operate in the prison environment undermine the formal systems that are aimed at delivering justice to inmates.

Inmates may additionally not challenge circumstances where they do not feel they have been treated justly because expectations transmitted through prison practices render such challenges seemingly pointless. For example, links between being an inmate and what it is to be a criminal have meshed with notions of merit in terms of receiving assistance with legal problems. Consequently, where an inmate feels they have not been treated fairly, they make sense of that experience by resorting to an explanatory logic that, since they are criminals who have broken the law, they deserve whatever treatment they get.

Further, a tendency to compliance, which is reinforced by prison culture, can make inmates less inclined to challenge perceived injustices, as non-compliance may attract disciplinary action or result in help being withdrawn. This attitude could further extend into post-release life where the ex-inmate must be far more active in pursuing assistance. As such, prison culture may act as a barrier for inmates' access to justice because it may make rational the inaction on the part of the inmate and (apparent) withholding of assistance by stakeholders. In these cases, it could be said that the informal structure reflects the formal — proactive behaviour useful in serving legal needs may be downplayed as prisoners adapt to the strictures of institutionalisation.

However, our analysis has also demonstrated that social relations are always in a state of flux and there is potential for transformation of practice through symbolic action. For example, custodial officers may carry out welfare tasks within the constraints of the oppositional code by paying sensitive attention to the ramifications of interacting on a personal level with inmates (as one custodial officer reported he did). Therein lies the challenge to service providers: formal organisational processes and remedial strategies do not operate independently of the informal social relations that exist in the prison environment; they are enmeshed and therefore have the potential to destabilise and transform each other. Consequently, their interdependence represents both an opportunity as well as a threat to innovations aimed at improving inmates' access to justice.