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Taking justice into custody: the legal needs of prisoners - summary report (Justice Issues Paper 2)  

, 2008 All prisoners have criminal law issues. Civil and family law issues also emerge when people are imprisoned and removed from their daily lives. They add to legal problems which occurred before custody, and those particular to the prison environment (e.g. prison disciplinary matters and parole). Taking justice into custody: the legal needs of prisoners reports on in-depth qualitative research into the legal needs of prisoners and their capacity to access the law and legal help. This research includes interviews with prisoners, ex-prisoners, prison staff, lawyers and others, and a review of available literature and statistics. It also identifies opportunities for prisoners to obtain legal assistance and to participate in legal processes. However, through a combination of the prison environment, legal environment, prisoners` personal capacity, (often) convoluted pathways to legal help, and the pre-dominant prison culture, such opportunities may be missed or compromised.


Aim


Taking justice into custody is part of a broader program of research being undertaken by the Law and Justice Foundation of New South Wales into the access to justice by, and the legal needs of, economically and socially disadvantaged people.1 Prisoners have been included in this program because of:
The report examines the capacity of prisoners in NSW to:
Included under these aims was the ability of prisoners to obtain assistance with their legal issues from non-legal sources (including the NSW Department of Corrective Services (DCS) and external support agencies), as previous research has demonstrated the important role such assistance plays in resolving legal issues (see, for example, Forell, McCarron & Schetzer, 2005, No home, no justice? The legal needs of homeless people in NSW). The investigation examined the above issues in relation to not only the prisoners’ existing legal troubles, but other legal problems that may arise or be prevented during their incarceration.


Method


In this project, we used qualitative interviews to explore the experiences of prisoners and people recently released from prison. Through one-on-one interviews and a small number of focus groups, we also sought the perspectives of DCS staff and other legal and non-legal service providers who support both prisoners and ex-prisoners.

In total we interviewed 67 prisoners and ex-prisoners and 42 other stakeholders using semi-structured, open-ended questions. The prisoner sample for this project included 27 sentenced inmates and 19 inmates on remand, drawn from five NSW prisons. The ex-prisoner sample included 15 parolees and six unconditionally released inmates, who had been released from full-time custody in the last two years. Interviewees were asked a series of semi-structured, open-ended questions seeking information about their experience of different legal problems, what steps they had taken (if any) to remedy them and the current status of that problem.

The stakeholder sample for this project was drawn from DCS staff and other service providers. Nineteen DCS staff were interviewed, including prison welfare staff, a financial counsellor, parole officers, library staff, education officers, policy workers, ‘Throughcare’ workers, and department managers working both within correctional centres and in head office. Interviews were also conducted with 23 legal and non-legal service providers who provide support to prisoners and people recently released from prison.



Legal issues experienced by prisoners


Prison inmates by definition have experienced or are experiencing criminal law issues. However, our research suggests that prisoners commonly face a range of other civil and family law issues as well. Some arise from their chaotic lives and financial disadvantage prior to custody, including outstanding debt, unpaid fines, unresolved family law issues and apprehended violence orders. Imprisonment itself also may lead to further legal issues as the person is suddenly excised from their everyday life. Prisoners’ housing, child custody arrangements, the retention of their personal effects, employment, the operation of any business and/or social security payments are all affected by their sudden separation from the community through incarceration.

I wouldn’t even know what outstanding debts might be out there from five years ago, you know. There might have been $300 on the electricity bill or $400 on the phone account, this here and that there and, all of a sudden it’s turned into $2000 because of interest and you know, what am I supposed to do with it? I couldn’t really deal with it, I was in jail.
Male sentenced prisoner

Legal issues particular to being a prisoner may also arise, such as bail, prison disciplinary action, classification and segregation issues, victims compensation restitution, and the threat of deportation. When they leave prison, ex-prisoners may experience legal issues relating to their parole and discrimination when seeking housing and employment. Our research also demonstrated that, upon release, prisoners may feel the impact of unresolved legal problems dating from a time prior to custody or during their imprisonment.


Opportunities and barriers to access justice


It’s difficult enough for somebody that’s educated, confident [and] forceful to get what he wants through the system. If you’re young, Aboriginal, uneducated and you’re not used to talking to people in authority, you’re starting [at] a disadvantage there. You’ve got no money and you have to depend on the public purse to get your lawyer.
— Custodial manager

Interviews with inmates, ex-inmates and the people who assist them, indicated that technically, there are opportunities for prisoners to obtain legal information, advice and representation and to participate in legal processes. Visiting legal advice services, prison libraries, prison staff and independent organisations, as well as telephone access, do much to facilitate the access that prisoners have to legal assistance. However, the interplay of the prison environment, inmates’ own personal capacity, the pathways through which inmates can access help, and prison culture, all mean that in many instances, those opportunities are missed or somehow compromised.

Obtaining legal information in prison

Our interviews indicate that prisoners obtained information about legal issues from a range of sources, including the prison library, welfare staff, other inmates, the visiting legal advice service, and from their own lawyers. Specific barriers that were identified in relation to inmates’ access to legal information and advice included:


Legal advice and representation in prison

Opportunities to engage and consult with a lawyer are available to inmates whilst in prison. Legal Aid’s Prisoners Legal Service (PLS), for example, provides a visiting legal advice service to NSW prisons on a regular basis. Legal numbers are included on prisoners’ phone cards and the number for LawAccess is automatically programmed in. Legal advice visits are catered for with designated areas and times for such visits to take place. However, despite these facilities, interviewees in the current study reported problems for inmates in securing and interacting with legal professionals. Problems included:


Effective participation in legal processes

To participate effectively in a legal process a prisoner needs to be aware the process exists, know what to do to become part of that process and be able to signal that intention to the relevant authority. Again, procedures are in place to facilitate inmate participation in law processes, especially criminal law processes. However, during our interviews, we unearthed a number of barriers to inmates commencing and participating in criminal and civil legal processes. These included:


Particular issues were raised in relation to appearing in court by Audio Visual Link (AVL), including the perceived impact of appearing by AVL in prison uniform rather than civilian clothes, and the greater difficulties for inmates with cognitive impairment to follow proceedings by AVL.

Consequently, while there are opportunities for prisoners to access justice, there are situations where these opportunities break down. Our analysis shows that there are a number of factors which contribute to the breakdown of opportunities for inmates to access justice. These are analysed and discussed under four themes:



Prisoner capacity


Interviews conducted for this study indicated that prisoners’ capacity to identify and deal with legal issues they are facing, and to actively participate in legal processes to resolve those issues, is affected by their own:
… we’ve got lots of people with mental illness and lots of people with disabilities, and I’m sure a lot of those inmates would be in states of confusion and not have a handle on all that’s happening. … and the drug users too. We have a lot of people who come in and have to detox and … who knows what they’ve been through and not been able to actually absorb.
— DCS Policy officer

Prisoners commonly reported that their lives had been spiralling out of control prior to their coming into custody. Contributing factors included mental illness, alcohol and other drug misuse, difficult and unhealthy family relationships, criminal activity, prior custody and poverty. As a result, inmates often came to jail with multiple criminal and civil legal issues, were not necessarily aware of the extent of these issues, had limited documentation, and had often damaged relationships with formal and informal sources of support.

Of particular note was a tendency reported in the interviews for inmates to have made financial, family and other arrangements outside the formal legal processes. These included informal money lending, housing and custody arrangements. There were also examples of this extending to the use of violence to settle scores. A lack of trust in and marginalisation from formal legal processes appeared to contribute to the reliance on alternative, less formal solutions. Choices concerning appropriate courses of action were further compromised by inmates’ often limited financial resources and lack of appropriate documentation. Consequently, inmates commonly came to jail with multiple legal problems but little leverage to resolve those issues easily.

Given the significant systemic barriers they face to addressing multiple legal issues from inside jail, inmates need to be motivated, tenacious, articulate, patient, organised and familiar with the law and legal process to successfully address their legal needs. In contrast, the profile of the prisoners in NSW is characterised by high rates of illiteracy, mental health issues, alcohol and other drug misuse, and cognitive impairment. Many prisoners had limited or interrupted education. Periods in custody had served to decrease 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 interaction styles (e.g. passive or aggressive behaviour). Dangerously, the inability of some prisoners to comprehend legal information, advice or outcomes was sometimes overlooked by people who offer assistance, because previous experience before the courts or time inside was taken as a proxy for actual knowledge. Lack of capacity may also be masked by bravado or disinterest because people are too embarrassed, intimidated or overwhelmed to admit that they did not understand information or advice, or that they cannot read.

Difficulties understanding and engaging with lawyers and the legal process also appeared to alienate inmates from using the law in their own interest, with some prisoners actively avoiding legal help. Inmates whom we interviewed reported avoiding the legal system to redress injustice because, in their experience, it was intimidating, incomprehensible and unlikely to operate in their favour. When compelled to participate in the legal process, some people did so in a state of ignorance and ensuing anxiety.



Systemic environment


As a consequence of being in prison and having legal needs, prisoners usually come into contact with a number of systems, such as the legal, custodial and bureaucratic systems. Features of, and tensions between, the systems have presented barriers to prisoners accessing justice.

They’re constantly moving around, a lot of them. And that makes it hard for them to contact people. They might contact their legal representative, [who says], ‘Okay, I’m going to come out and visit you on Thursday’. And they may be moved on Wednesday.
— Custodial officer

Firstly, according to our interviewees, the level of resourcing within DCS and public legal services, such as the Legal Aid Commission of New South Wales (Legal Aid) and the Aboriginal Legal Service (ALS), seemed to threaten the capacity of these bodies to facilitate prisoners’ access to justice. For example, the number of inmates requiring time with the PLS visiting legal advice service meant that each inmate may only have five or 10 minutes to discuss their case. Many felt that this was insufficient to convey their situation and absorb the advice offered.

Opportunities to contact a lawyer by telephone or during a legal advice visit, reach the library for legal information and get legal support through welfare staff can be compromised by conflicting priorities within the custodial system, such as the emphasis placed on security and efficient management of inmates in correctional centres.

There also seemed to be clashes between the custodial system and the legal systems and processes, making it difficult for inmates to access legal help. For example:


The AVL system was posited as a way that could circumvent some of the tensions between these external systems and internal custodial processes. However, its utility is tempered by the concern that AVL can add another layer of confusion for inmates who already have comprehension difficulties. Other initiatives, such as the recent implementation of the Centrelink outreach service, were also suggested as ways to ameliorate conflict between the different components of the broader justice system.

Finally, while procedures are in place enabling inmates to participate in their criminal matters, there are less systemic processes and facilities available to help prisoners resolve their non-criminal problems. For example, the procedures for prisoners to access government agencies such as the Department of Housing or the State Debt Recovery Office are variable, not always immediately apparent, involve a number of steps to reach and are consequently less reliable. The visiting advice service also did not routinely cover civil issues. However, the addition of the LawAccess number to inmates’ phone cards (subsequent to our interviews) has the potential to substantially improve access to advice on civil matters.



Pathways and intermediaries


Our interviews indicated that inmates rely to a high degree on other people to help address their legal issues. These people, or intermediaries, may act on the prisoners’ behalf or as a relay point in the process of preventing, identifying or addressing a legal problem. Our analysis revealed that there are a number of features of intermediaries and mediated pathways to legal help that facilitate an inmate’s access to justice or act as a barrier.

So I spend a great deal of time contacting solicitors and saying, ‘What’s happening?’, ‘These are the concerns that the inmates have, these are the questions that the inmate has and when are you coming to see them?’ You are very much acting as that middle person.
— DCS welfare officer

Firstly, although there appeared to be numerous people prepared to assist with tasks associated with a legal problem, inmates often expressed confusion about who was the best person to approach, particularly in the first instance. Pathways to assistance with legal problems were fragmented and obscured by a number of practices: lack of information detailing appropriate contacts, several different staff groups covering the same task, tasks designated to one group being taken over by another, and different people within the one occupational group having varying degrees of knowledge and consequent capacity to assist. Inmates tend to respond to this uncertainty either by giving up the pursuit or approaching several intermediaries for the same issue simultaneously, thereby doubling up on the use of resources and further entrenching the confusion surrounding the question of responsibility.

Secondly, a major issue that arose particularly in relation to custodial staff was the lack of consistency and clarity in the assistance given to prisoners. A prisoner may feel uncertain about who to contact for assistance, when, in their experience, one officer in a certain position may have been helpful, yet another officer in the same position at a different time had not been particularly useful. The assistance provided may depend on the mood or disposition of the individual officer, rather than their position. This can reinforce uncertainty about where to go for help.

Thirdly, mediated processes seem to delay help, with many interviewees describing apparently cumbersome processes to achieve relatively simple tasks. As a consequence, inmates would in some cases abandon seeking help because they felt it would take too long. In other cases, inmates missed an opportunity to address a legal issue or prepare effectively for a hearing. As the contingencies increased with every pair of hands a matter passed through, so did the opportunity for a breakdown or delay to occur.

The final factor that affected the utility of intermediaries was the potential for exploitation or being (unintentionally) misled because of the relationship of dependency that mediated pathways create. This sub-theme was mainly an issue where personal intermediaries (as opposed to ‘professional’ intermediaries such as DCS staff or staff of other organisations) were used. Although inmate peers were an easily accessible and often a preferable source of assistance with legal problems, the sensitive nature of the matters could sometimes place an inmate at risk of privacy breaches. In other cases the inmate may lose money, property or have debts incurred in their name because they have had to ask friends or family to pay bills, mind property or oversee their finances. In yet other instances, inmates may be given incorrect or incomplete information.



Prison culture


Our analysis also indicated that prison culture is a factor in shaping the degree to which inmates access justice and obtain assistance with their legal issues. The prison culture not only informs inmates’ behaviour but also that of legal service providers and those who assist prisoners in obtaining access to service providers. Our interviewees observed this occurring in a number of ways.

Firstly, inmates were defined and define themselves as being in opposition to correctional officers and/or even the justice system itself. 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. Consequences, such as stigmatisation, harassment or even violence, reinforce these notions. Consequently, although there were processes available that provided legal redress for inmates who are assaulted, they are not pursued because the prison subculture makes it unattractive or at least problematic.

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.
— Male parolee

Secondly, violence committed against inmates is conceived as unremarkable in the prison environment. An assault may not be reported by an inmate because physical violence is part of the experience of prison or because such incidents can be resolved by responding with further violence. This normalisation and naturalisation of violence enhances informal resolution of issues and undermines the formal systems that aim to deliver justice to inmates.

Thirdly, common notions that ‘criminals’ do not ‘deserve’ justice may lead to prisoners not challenging circumstances where they do not feel they have been treated justly because they perceive that they are thought of as unworthy of assistance. Such perceptions persist even though the ‘lived’ experience of many inmates and the attitudes of those who help them are to the contrary. A number of examples were given in our interviews where unfair treatment was explained by the inmates to themselves as ‘criminals break the law therefore they deserve whatever treatment they get’.

Finally, a tendency to compliance, which is reinforced by prison culture, seemed to discourage inmates from being proactive about meeting their legal needs. Inmates may be less inclined to challenge perceived injustices, as non-compliance may attract disciplinary action or result in help being withdrawn. This passivity is a barrier in post-release life where the ex-inmate must be far more active in pursuing assistance.



Conclusions and policy implications


Taking justice into custody builds a complex picture of prisoners’ legal needs and their capacity to access justice. To begin with, prison inmates are, as a group, disadvantaged. At the aggregate level they are under-educated, have high rates of mental illness and intellectual disability, have drug and/or alcohol addictions and are financially compromised. Our report indicates that imprisonment tends to compound this disadvantage. Each time the person cycles through the justice system personal supports are strained, skills become atrophied, financial resources are depleted and the capacity to operate well ‘on the outside’ and without resort to unlawful means is further diminished. Many of the symptoms and causes of these problems have legal implications, with family breakdown, difficulties with housing, high levels of debt, and conflict with government authorities all generating and reflecting the disadvantage that prisoners experience.

Formal opportunities do exist for prisoners to address their legal needs, particularly for criminal legal problems, and to prevent new issues developing. Our research has revealed that prison libraries, knowledgeable staff, visiting legal services, and LawAccess assist inmates to identify and satisfy legal needs. However, what was also revealed was the vulnerability of these opportunities to being compromised by poor inmate capacity, the systemic environment, the mediated and at times convoluted pathways to assistance, and prison subculture. However, looking across these factors, a range of other observations and themes emerged from the analysis.

The first theme concerns the seemingly inverse relationship between the accessibility of legal help and the quality of that assistance. For instance, while other inmates were a very immediate source of assistance, the quality and relevance of advice given was variable. In contrast more reliable sources of assistance such as lawyers were much harder for prisoners to reach. The need to bring quality legal assistance within more direct reach of inmates and the improvement in resourcing more accessible sources were two clear implications for future policy. The recent placement of the State Library’s Legal Information Access Centre (LIAC) materials into prison libraries and the addition of the LawAccess telephone number to inmates’ phone cards were two examples of such strategies.

But sometimes I do wish I had some knowledge to be able to answer them. You know, some knowledge with some confidence to be able to give them a response rather than, you know, ‘Go and see Welfare, speak to your solicitor, I’m only a wing officer.’
— Custodial officer

A second theme concerned the mismatches between what inmates needed to access justice and what opportunities were available. For instance, legal processes often rely on written information, and yet many prisoners are poorly educated and face difficulties with literacy. Further, resources within the systemic environment often fell short of demand for them — telephones, public legal professionals and welfare staff for example were in high demand but often, apparently, short supply. There was also evidence of mismatches between the routine and realities of life inside prison and the way services to prisoners were delivered. For example, lawyers were most accessible by telephone or in person at the times that inmates were more likely to be locked in cells unable to access the telephone. Similarly, restrictions on inmates’ movements within prison could prevent their access to the prison library when it was open.

Disempowerment was a third theme concerning barriers facing prisoners when they try to prevent or address legal issues. The pervasive need for prisoners to rely on other people to carry out tasks on their behalf (such as calling government agencies, passing on messages and arranging legal visits) meant that inmates were often not in control of obtaining information and advice on their own behalf.

Consequences included delays, essential activities not taking place at all, and the creation of unequal power relationships that sometimes were to the detriment of the inmate. Additionally, the loss of skills and resources through repeated incarceration and concomitant reliance upon others may cumulatively erode inmates’ capacity to address their legal needs on their own behalf even when released.

A final theme concerns how the capacity of prisoners to address certain legal issues varies at different stages of their incarceration. When first incarcerated, inmates are generally too unstable, stressed and focused on their criminal matters to have the capacity to focus on their longer term civil law problems. By the time they are in sentenced prisons, inmates appear to have more personal capacity to address these issues, but are faced with more systemic barriers to doing so (e.g. placement in a rural prison and less access to welfare or regular legal assistance). If civil law assistance was provided at a point in the incarceration when inmates were most able to engage with that assistance, the effectiveness of that assistance may be increased.

The following table (see page 10) summarises the changing capacity of inmates and the nature of their environment as they move through the incarceration process. It also shows the barriers they face, highlighting policy development and service provision issues.

It is important to recognise that some of the factors that affect prisoners’ access to justice may not be easy to modify or will change slowly. These include the overriding priority given to security in jails, limited resources within both correctional and legal service delivery systems, the complex histories of prisoners and the limited cognitive capacity of many inmates, particularly during early periods of custody.

Sometimes you might need more than a few minutes but because [the legal advice service] have got so many they want to see, then they can only give you, like, two, three minutes to see you, and they’ve got to get quick details and then rush off. They need to send more lawyers out here.
— Male sentenced prisoner

However, here are some key elements that would address a number of the barriers identified in our study:


Satisfying legal needs from within the prison environment can be a complex process. Isolation from services, the formal and informal regulation of movement and interactions, personal capacity and the conflicts between components of the justice system all affect how opportunities to access justice are exploited or missed. However, our research shows that many strategies are successful in bringing legal assistance to prisoners, by engaging with the prevailing conditions and working within the limitations of imprisonment. Consequently, while it is true that many circumstances exist to impede access to justice for inmates, it is certainly possible to successfully address the legal needs of prisoners and to bring the opportunity of accessing justice to people in custody.


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


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


Further quotes


Some quotes from interviews conducted in the research for this report.
— Financial counsellor
— Female sentenced prisoner
— Caseworkers Welfare Rights Centre
— Male sentenced prisoner
— LawAccess
— Female remandee
— Probation and parole officer




Aim


Method


Legal issues experienced by prisoners


Opportunities and barriers to access justice


Prisoner capacity


Systemic environment


Pathways and intermediaries


Prison culture


Conclusions and policy implications


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


Further quotes