Persons with disabilities are overrepresented in prison and some are criminalized for behaviors related to their disability. But their disability is unlikely to be recognized or adjusted, and the link between the National Disability Insurance Scheme (NDIS) and the criminal justice system has long been problematic.
We wanted to understand some of the gaps in services for people with disabilities in prison and what can be done to improve supports. We interviewed 28 people who worked at the intersection of disability and the criminal justice system (such as disability service providers, lawyers and activists).
Our results painted a picture of a disadvantaged group both in prison and after release, who need much more support to avoid being criminalized again and again.
How many people in prison have a disability?
People with disabilities, especially people with intellectual disabilities, are overrepresented in prisons, but there are no reliable statistics on the percentage of people with disabilities in prison.
Indeed, definitions of disability vary, prisons have not always been good at identifying people with disabilities, and people may not recognize or be willing to admit that they have a disability. In fact, not being aware of their disability and not being able to access support services may be the number one reason people end up in jail.
The prevalence of intellectual disability in prison is estimated at between 4.3% – using administrative data – and around 30%, when people are screened or surveyed anonymously. This compares to about 3% in the general population.
People we spoke to said that identification of people with disabilities in the criminal justice system is improving, but there is still a long way to go. Commonly encountered types of disability included intellectual or cognitive disability, acquired brain injury, psychosocial disability (difficulties resulting from mental illness), hearing loss, and combinations of these.
Support for people with disabilities in prison
People with disabilities in prison may need support with physical or cognitive tasks, just as they do in the community. This may include help with showering, reading documents, filling out forms, understanding rules, following programs, participating in their criminal proceedings or filing a complaint if something goes wrong.
Most respondents agreed that the best case scenario for most people with disabilities was to be housed in disability-specific prison units with staff with disability training or other relevant qualifications. However, they noted that these units are not available in all prisons and there is a high demand for limited beds.
Thus, persons with disabilities are generally housed in ordinary prison units or in solitary confinement or preventive detention. Both scenarios present risks such as victimization by other inmates or exacerbation of symptoms.
Respondents indicated that apart from disability-specific units, there is very little disability support available in prison, including the lack of adjustment of prison programs to make them suitable for people with low literacy or intellectual disability. This means that people with disabilities sometimes have to rely on support from other people in prison for their daily needs, which can be problematic.
And the NDIS?
Day-to-day support for persons with disabilities in institutions is entirely the responsibility of correctional services. This means that people who might be eligible for significant enough NDIS support in the community receive significantly reduced service in custody, which is inconsistent with Australia’s human rights obligations and has consequences on their ability to stay out of contact with the justice system after their release. .
The NDIS allows some forms of support (primarily aimed at transitioning to the community) to be provided inside prisons. However, this is at the discretion of the prisons. Our interviewees told us that things are improving, but it is still rare for people to get any kind of services from the NDIS while in detention.
There may also be funding conflicts as the NDIS will only fund disability-related aids and not delinquency-related aids, but these are difficult to sort out.
For most people, respondents agreed that it was more like a pause button on their plans until they were released.
Problems persist after release
Once people with disabilities are released from prison, they continue to face significant barriers to accessing NDIS services. Some people get pre-release planning, but others will be released without knowing how to restart or use their plans.
Many people in this situation have difficulty understanding, admitting or explaining their support needs.
Specialized support coordinators trained to work with these clients can help, but are not widely available.
Additionally, in a market-based system like the NDIS, service providers can choose who they work with. If providers don’t want to operate inside prisons, or with certain groups of clients who have challenging behaviors, they don’t have to.
Where to go from here?
Prisons need better and more consistent identification of people with disabilities, more specialized units and better support for people with disabilities housed in the general population.
This includes a genuine effort to tailor all programs to the needs of people with cognitive impairments or low literacy.
While NDIS rules and access for those in custody have improved, significant work remains to be done to ensure that those incarcerated get consistent and fair access to their NDIS rights. People need planning and support well in advance of their release date to adequately prepare them to reintegrate into the community.
More specialized support coordinators, more funding for advocacy services and a provider of last resort would help ensure this group with complex needs receives the care needed to avoid the “revolving door” of the criminal justice system. .
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