Social Justice, Disability and the
Criminal Justice System
Associate Professor Eileen Baldry
Research Team: Eileen Baldry, Leanne Dowse, Melissa Clarence & Phillip Snoyman
ARC Linkage Grant
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Presentation Outline
• What is Social Justice?
• People with Disability in the CJS: MHD&CD
• Conclusions: implications of SJ & disability in cjs
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Social Justice
• Social justice (redistributive justice): moral imperative
and a social philosophy
• All have right to a fair share of natural and social
resources
• These ends should be pursued by those in positions of
societal, political and organisational responsibility.
• SJ pays attention to, is in solidarity with most
disadvantaged and excluded.
• How to achieve SJ? One large element is the
maintenance of socially just structures.
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Social Justice
• social injustice rooted in politico-economic
structures based on subjugation,
discrimination, exploitation and privilege
• to achieve social justice these structures
need to be constantly challenged favouring
egalitarian & non-discriminatory structures
and should eschew elitist, gendered,
classist model of society.
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HR & participatory citizenship
• A Human Rights framework - helps provide
legal and structural requirements to meet
social justice
• Participatory citizenship - helps ensure
community strengths, empowerment &
enfranchisement
• So, social justice-human rights-participation
form a powerful paradigm to do SJ work
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Equality
• The Spirit Level by
Wilkinson & Pickett
2009
• Overwhelming
evidence for the
positive effects on all
aspects of society of
greater economic
equality
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Importance of Income Equality
from Wilkinson & Pickett
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Disabilities and SJ
• Structural barriers (policies and practices that
favour those without disabilities or actively
disadvantage or discourage those with
disabilities) need to be removed,
• AND
• Positive redistribution via structural supports
(policies and practices that provide equity and
resources for those with disabilities) need to
be present for SJ to be advanced.
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SJ, Disability & the CJS
• How does this apply in the CJS?
• Evidence from the MHD&CD in the
CJS study
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The problem
The Mental State Of Women
And Men In NSW Prisons
(adapted by McComish from Butler & Alnutt 2003)
80
70
60
50
40
30
20
10
0
AOD
iapp12
psychosis
women
depression
men
ipers
anxiety(incl
PTSD)
ABS
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MHD 2009 Survey
• Shows increasing levels over past 14
years of mental health disorders
amongst prisoners, mainly mainly due
to change in male MH disorders
•
Source: 2009 NSW Inmate Health Survey: Key Findings Report p:17
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Cognitive disability in NSW CJS
• DJJ 74% below av. range of intellectual
functioning (V 25% standardised sample)
• Small ID but larger BID over-representation in
NSW prisons
• UK appears much higher: eg av IQ 84 (Hayes
et al 2007)
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But …
• As the following study demonstrates,
these figures are somewhat misleading
• The real story lies with the level of
complex needs (multiple diagnosis with
high disadvantage)
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Pathways into, through,
around, out of and back into
CJS
Evidence of effects of inequitable
life chances, policies, practices,
opportunities and capabilities
MHDCD Study
• 2,731 persons drawn from the JH 2001
survey and from the Statewide disability
database
• MH&CD diagnosis known
• Merged data from JH, Corrections,
P&P, Police, JJ, Legal Aid, Courts,
Housing, ADHC, (Community Services
and Health still being drawn)
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Child protection
• Data still being drawn but early
indications are ~ 2/3rd of cohort known
to CS
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MHDCD Study: Education
Although prison population in general has low
levels of education, diagnosed groups have
even lower levels – see non-diagnosed group
 Those with some form of CD
have the worst levels
of education.

Unknown
100%
Never Attended School
80%
Primary school only
Didnt Complete School - No
Further Info
60%
Left school with no qualification
40%
School certificate
20%
Technical or Trade qualification
HSC/VCE/Leaving Certificate
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Study Group
PD/AOD
MH_ID**
MH_BID**
MH_AOD
MH
ID_AOD**
ID**
No MH/ID
BID_AOD**
BID**
0%
College certificate/Diploma
Degree/tertiary qualification
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MHDCD Study: ADHC


Very high rate of persons in prison with ID & borderline
not receiving services from ADHC (improving over past
2 years)
Only 10/709 JJ CD group
were ADHC clients
79% of ADHC clients
imprisoned prior to
becoming a client
DADHC Client
Not Client
100%

80%
60%
40%
20%
0%
ID Group
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Borderline
Other
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Housing Assistance
V
High level of housing assistance sought
across the cohort
 V high level of housing assistance given
 Problem appears to be in maintaining
tenancy: ½ due to frequent episodes in
prison; also frequent behavioural issues,
failing tenancies (likely to be arrears, debt).
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Contact with Police & Legal Aid
• BID/ID/MH/AOD complex –significantly
lower age 1st contact
• Legal Aid was afforded regularly to
almost all of those with complex needs
but did not appear to prevent regular
incarceration
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Section 32 (at any time)
• Only 618 matters ever dismissed under
Sec 32 for this cohort of 2,731 persons
• 16% of MH/ID ever had matters
dismissed under Sec 32; 10% of
MH/BID; 6% ID only & BID only
• Sec 32 underused as means to
manage offenders with MHD, CD &
complex diagnoses in the community
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Remands (adult only) & Court
Finalised matters
 Significantly higher number of remand
episodes for complex needs but
significantly lower length of stay each
time than single or no diagnosis groups
 Those with complex CD have the
highest rates of court finalised matters
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Custodial Episodes
• Individuals with complex needs have significantly higher number of
custodial orders than those without complex needs
Average Custodial Episodes Female
Rate Custodial Episodes * Female
Average Custodial Episodes Male
Rate Custodial Episodes * Male
3.0
12
2.5
10
Women with complex needs
higher number and rate of
custodial episodes than men
2.0
8
1.5
6
1.0
4
0.5
2
0
0.0
MH_ID
MH_BID MH_AOD ID_AOD BID_AOD
Indigenous women have highest number and rate
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ID
BID
MH
Study Group
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PD/AOD
No
Diagnosis
Rate Of Custodial Episodes Per
Year
14
Avg Number of Custodial
Episodes
Women have a higher rate of
custodial episodes per year
than men
Custodial Episodes By Gender
MHDCD Study: DJJ
Complex needs children earlier 1st police contact;
but significantly more police contacts before
detention
% DJJ Clients
% DJJ Custody
% Sentenced to Detention
70%
Significantly higher JJ
contact for ID/BID/AOD
; complex needs sig
more custodial
episodes but sig lower
average days in
custody
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60%
50%
40%
30%
20%
10%
No MH/ID
PD/AOD
MH
BID**
ID**
BID_AOD**
ID_AOD**
MH_AOD
MH_BID**
0%
MH_ID**

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Types of Offences





Theft and road traffic/motor vehicle regulatory offences
most common offences (~20% of all groups)
Justice Offences next common at ~10% across all
groups
‘Acts intended to cause injury’ common (approx. 10%)
But CD complex groups more likely to commit public
order offences (approx. 10%).
Very high rate of lower level offences – many
avoidable if community support / supported housing
DistrictCourtConference 6.4.10
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Time in custody
These 2 slides provide a picture of those with CD
complex needs having higher rates of episodes in
custody but significantly shorter duration each
time in custody
7.7
8.3
7.7
5.2
6.3
5.3
7.4
4.5
0
No MH/ID
PD/AOD
MH
BID**
ID**
BID_AOD**
ID_AOD**
MH_AOD
MH_BID**
0.0
50
110
143
132
134
135
136
183
233
152
264
No MH/ID
7.7
PD/AOD
0.2
8.4
MH
1
100
BID**
0.4
2
ID**
3
150
BID_AOD**
0.6
4
200
ID_AOD**
5
250
MH_AOD
6
0.8
MH_BID**
1.0
7
Avg Days Per Year
MH_ID**
8
Avg Days Episode
300
Days In Custody
Rate Custodial Episodes Per Year
1.2
MH_ID**
Avg Custodial Episodes Per Person
Avg Custodial Episodes
9
Avg Rate OF Episodes Per Person Per Year

0
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Indigenous persons in cohort
Indigenous persons have a significantly higher number and rate
of convictions than non Indigenous persons
Indigenous women have significantly higher rates of convictions
than non-Indigenous women and higher rates of remand episodes
Critical variable keeping Indigenous women cycling in an out
appears to be their complex needs. But entrance into CJS in first
place due to their Indigeneity & significantly higher
disadvantage.
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Women in cohort
There is a significant difference in overall rate of convictions
with females having a higher rate of conviction than males
Women have more custodial episodes but these are shorter
in duration - greater rate of cycling in and out of prison for
women with complex needs – high rate of remand
•75% of these women reliant on social housing
•1/3rd of these women been through juvenile justice
•Only 7% of those women with cognitive disability supported by
Disability Service
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Pathway for complex diagnosis offenders
•
•
•
•
•
•
•
High JJ involvement (48%)
Indications are high Community Services involvement
Only 10 / 709 of JJ CD group were ADHC clients
Numerous school exclusions / truants - expelled
Early police contact
AOD
Homeless – Housing assistance but problems
maintaining tenancies
• Recidivist/persistent offender/ high remand episodes
• The CD complex groups are significantly higher on all
the above
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Conclusions
A
social Justice analysis indicates that
those with MHD&CD in the CJS have
experienced significant disadvantage
throughout their lives and in their
contact with government agencies and
have had little in the way of opportunity
to address the iterative disability
impacts experienced by many since
early childhood
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MHDCD Study: Conclusions
Those with CD complex needs, and
particularly Indigenous young persons and
girls, start cycling around in a liminal
marginalised community/criminal justice
space at an early age
 Such a space is not a socially just structure
and does not afford access to social supports
or to claim HR

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Ways forward


Strong early childhood, school education,
disability services, non-criminal justice service,
early adolescent mental health, lifelong social
housing and disability aware legal service
supports & improved incomes are all necessary
for those families and communities with lower
income levels to ensure socially just outcomes
for persons with disability who are
disadvantaged.
These approaches and supports are afforded to
middle and upper class children with disability
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