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Research Report: Taking justice into custody: the legal needs of prisoners
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Taking justice into custody: the legal needs of prisoners    Cite this report

, 2008 , 360 p.
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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Executive Summary


Aim

The legal needs of prisoners project, 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 in recognition of:

  • the concentration of disadvantage in the prison population in terms of higher levels of mental illness, intellectual disability, histories of alcohol and other drug misuse, poverty, poor education, and unemployment than in the general NSW population
  • the existence of previously collected evidence that prisoners experience a unique range of barriers in meeting their legal needs because of the nature of the prison environment
  • the dearth of research on this topic.

This report examines the capacity of prisoners in NSW to:
  • obtain legal information (for criminal, civil and family law matters)
  • obtain legal advice and representation (including basic legal advice, initial legal assistance and legal representation)
  • participate effectively in legal processes (including access to courts, tribunals, and prison disciplinary/administrative processes).

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). 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. 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

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 research indicates 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:

  • lack of information about a service or process (e.g. how to request information from the library; how to secure legal representation and how to book an appointment with the visiting legal advice service)
  • the quality and currency of legal information (e.g. incomplete or out-of-date legal resources in libraries and wrong advice or information from workers, friends or other inmates)
  • the length of time it takes to get legal information or advice (e.g. to make a request from a law library if there is no direct access and lawyers not being able to return telephone calls)
  • restricted access to legal information due to lockdown, classification or placement on protection/segregation (e.g. inability to physically access the library)
  • the requirements and/or limitations of the process of obtaining information compared to the inmates' capacity (e.g. the need for prisoners with poor literacy to complete forms to request help; the provision of written information to prisoners with poor literacy; and, advice sessions being too short, particularly given the cognitive capacity of some inmates).

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:

  • inmates not being able to identify the correct process to secure legal advice
  • access to the PLS being undermined by: lack of information about the service in some prisons; the service being over-subscribed; legal advice sessions in jails not taking place or being too brief; the range of advice offered being dependent upon the speciality of the attending lawyer; and the inmates' failure to attend scheduled appointments
  • inmates' communication with their lawyers being compromised by: the limited availability of telephones; no facility for lawyers to return calls; delays in getting lawyers' telephone numbers onto phone cards; the expense of the telephone calls if the inmate is moved to a prison away from the lawyer's location (e.g. to a rural prison when the lawyer is in Sydney)
  • inmates not getting to see a lawyer before attending court or being confident a lawyer will be present when they attend court
  • legal visits in court cells being too brief and not always confidential
  • quality/utility of the advice session being compromised by the inmate's mental and emotional capacity, the complexity of information provided, and the (perceived) assumptions by the lawyer about the inmate and inmates in general.

Effective participation in legal processes

To participate effectively in a legal process a prisoner needs to be aware the process exists, know what 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:

  • limiting beliefs held by inmates (e.g. the perception that a legal process would have negative consequences or would not yield a satisfactory/fair outcome; inmates pleading guilty or choosing not to attend court for fear of leaving their current prison and losing their “place” and privileges, and the humiliation of being transported to court in a truck)
  • lack of understanding about what transpired in a hearing or a misunderstanding about the outcome or obligations of a legal process (e.g. an inmate leaving court without understanding the sentence or the consequences of any conditions to which they agreed)
  • lack of information about possible legal remedies and how to initiate and participate in a legal process when in prison, and about the progress of their own matter (e.g. court dates and which lawyer would be attending)
  • inefficiencies in the process (e.g. inmates seeking assistance for the same legal problem from several different staff members and inmates needing to rely on other people to initiate or progress a legal process and this assistance not being forthcoming)
  • lack of confidentiality (e.g. keeping sensitive briefs of evidence or other information in cells and conferring with counsel while in court cells)
  • insufficient time/facilities to prepare cases (e.g. briefs of evidence being held up in the mail system; inmates not getting enough information about how their case is to be run; and, limited facilities to read briefs of evidence)
  • lack of direct access by telephone to government departments
  • restrictions on legal transactions inmates are allowed to make because they are inmates.

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:

  • the personal capacity of prisoners (prisoner capacity)
  • the manner in which the various components of the justice and administrative system (prison, courts, advocates, authorities, etc.) operate and interact (systemic environment)
  • features of the pathways and intermediaries inmates utilise to address a legal need (pathways and intermediaries)
  • the role of culture operative in the prisons sampled in shaping inmates' legal needs and responses to those needs (prison culture).

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:

  • histories and lives before prison
  • financial capacity and resources
  • prior experience in legal processes
  • comprehension capacity
  • life skills.

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.

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 hours that lawyers were available often did not match the hours of operation within the prison (that is, when inmates were out of their cells)
  • time-limited telephone calls from prison made it particularly difficult for inmates to get help through the receptionist and call centre based systems adopted by Legal Aid and other legal service providers
  • lockdown at the prison could prevent an inmate receiving a legal visit or a consultation with the visiting legal advice service.

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 these intermediaries and mediated pathways to legal help that facilitate an inmate's access to justice or act as a barrier.

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, disposition or skills 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.

Secondly, violence committed against inmates is conceived as unremarkable in the prison environment. An assault may not be reported 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 LIAC2 materials into prison libraries and the addition of the LawAccess telephone number to inmates' phone cards were two examples of such strategies.

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.

Table 10.1 on page 280 of this report 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 the early stages of custody.

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

  • bringing quality legal help (information, advice, representation and access to processes) closer to inmates so as to reduce the number of intermediaries between the inmates and quality assistance (e.g. direct access to legal assistance telephone lines and visiting civil legal advice services)
  • providing legal help in formats that can be used by inmates, given that some inmates have a reduced capacity to comprehend material and retain information (e.g. lawyers spending more time with inmates to help them understand the advice or providing legal information in DVD format)
  • providing clear access points to legal help (e.g. a single telephone number or contact point)
  • recognising points in the incarceration process when it may be most beneficial to engage with inmates to address their civil legal needs (e.g. once prisoners are sentenced or past the early remand period)
  • having greater awareness of the routines and limitations facing prisoners in accessing legal services, and incorporating such awareness into the legal processes (e.g. legal services being aware of when prisoners are out of their cells and available, or that a prisoner should not be left on hold during a telephone conversation as they can only make time-limited calls)
  • having greater cognisance of how prison culture may affect the decisions inmates make about where and how to seek help with their legal problems
  • providing some continuity of legal service provision from inside to out of jail (e.g. having access to the same telephone help line inside and out of jail).

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 give people in custody the opportunity of accessing justice.

The Access to Justice and Legal Needs (A2JLN) research program is described in the foreword of this report.
The State Librarys Legal Information Access Centre.

 The Access to Justice and Legal Needs (A2JLN) research program is described in the foreword of this report.
 The State Librarys Legal Information Access Centre.


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