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Recently Released from Prison

The Legal Needs Of Prisoners and People Recently Released from Prison


The Law and Justice Foundation of New South Wales (NSW) proposes to conduct a study into the legal needs of prisoners and people recently released from prison. This project is part of the Foundationís broader research program into the access to justice and legal needs of economically and socially disadvantaged people in NSW. Specifically, the Access to Justice Research Program examines the capacity of different groups of disadvantaged people to:

  1. Obtain legal assistance (including legal information, basic legal advice, initial legal assistance and legal representation);
  2. Participate effectively in the legal system (including access to courts, tribunals, and formal Alternative Dispute Resolution mechanisms);
  3. Obtain assistance from non-legal advocacy and support (including non-legal early intervention and preventative mechanisms, non-legal forms of redress, and community based justice)
  4. Participate effectively in law reform processes.

Scope of proposed study
This study proposes to examine the legal and access to justice needs of prisoners and ex-prisoners. That is, people who are currently or have recently been held in custody. "Recent" is defined here as within the last two years.

Broadly speaking, prisoners' can include people who have been arrested and are in police custody, people in jail or juvenile detention, and people who are detained by the Commonwealth Department of Immigration, Multicultural and Indigenous Affairs. While all prisoners may face access to justice issues, the focus of this study is on prisoners whose ìconfinement is the responsibility of a corrective services agencyî. In NSW, this means people who are held in custody by the Department of Corrective Services or the Department of Juvenile Justice. Thus, consideration of the legal issues of people held in detention under immigration law and in police custody is beyond the scope of the current project.

There are three main reasons that the legal needs of prisoners and ex-prisoners merit investigation: the concentration of disadvantage in the prison population; preliminary evidence that prisoners and ex-prisoners experience a range of barriers to meeting their legal needs; and the dearth of research on this topic. These are discussed in greater detail below.

Disadvantage in the prison population
There is considerable evidence that prisoners come from backgrounds characterised by relatively high levels of disadvantage and as such come within the purview of the Access to Justice Research program. For instance, a survey of young people in the custody of Juvenile Justice revealed that 88% reported mild, moderate or severe symptoms consistent with a clinical (mental health) disorder. In addition, 17% had cognitive functioning scores consistent with an intellectual disability.mong the adult population, in 2003 one study reported in 2003 found that 74% had suffered ëany psychiatric disorderí in the previous 12 months (compared to 22% of the general population).

The Inmate Health Survey of NSW prisons also found that in 2001, 21% of adult male prisoners and 23% of adult female prisoners in NSW had been in care (e.g., foster care, kinship care or a childrenís home) before the age of 16. Nearly 60% of these men and nearly 80% of these women had been in care for more than 2 years (with approximately half of each of these groups spending their whole childhood in care). As a point of contrast, 0.6% of young people under the age of 16 in NSW in 2000/2001 are in the care of the State.
Low educational attainment is also common among prisoners in NSW. Ninety per cent of young people in custody in NSW did not complete year 9, and an estimated 60% of adult prisoners did not complete Year 10. Further, it has been estimated that 60 per cent of adult prisoners in NSW are not functionally literate or numerate.
Given these data, not only are prisoners and ex-prisoners likely face barriers in meeting their legal needs related to their incarceration but others that relate to general forms of disadvantage. Previous consultations as part of the Access to Justice Research Program have indicated barriers among people disadvantaged in these ways include inaccessibility of information (due to illiteracy), alienation from, and distrust of, the legal system (because of unfamiliar and formal processes), low expectations of the systemís capacity to provide redress for their wrongs or to recognise the rights of prisoners and ex-prisoners. Further, people with poor or no reading skills are not only limited in their access to legal information but have problems completing and understanding official documents, which are an intrinsic part of legal processes.

Barriers experienced by prisoners and ex-prisoners
Data reported on previously indicates that gaining access to legal assistance and participating effectively in the legal system may be problematic for prisoners (and ex-prisoners). Briefly, prisoners do not only have legal issues related to the offence(s) for which they were incarcerated (e.g., hearings, appeals), they may also have unresolved legal matters that pre-date their incarceration (e.g., debt, including housing and Centrelink debt, personal injury claims) and others that may arise while they are in gaol (e.g., family law issues; assault in prison). In addition, there are significant issues related to the rights and status of prisoners as citizens. It appears however, that incarceration may present quite specific barriers to getting these legal needs met. For example, no access to the internet, limited access to telephone advice lines (and telephones generally), lack of services to assist with day-to-day prisonersí rights issues , limited access to quality legal services and limited access by solicitors to their incarcerated clients.

There are also indications that it may not be until upon release that a prisoner feels the full impact of any outstanding legal issue and that these issues may affect their capacity to rebuild their lives.The importance of the post-incarceration period is underscored by the fact that a majority of ex-prisoners are re-convicted and return to prison at some point later on in their lives. In addition to the barriers facing ex-prisoners outlined above, ex-prisoners must also negotiate other obstacles stemming from their time inside gaol. For instance, people released from prison may face parole conditions which prevent them from liaising with former friends and contacts. The stigma associated with having been in gaol may also adversely affect their employment prospects or renting private housing.

Lack of research
Finally, for the reasons discussed above, there is a high probability that this group will and do experience difficulties with access and participation in legal processes, yet there is a dearth of research on the range of legal issues (civil, criminal and family) faced by prisoners while in custody and post-release, and the barriers they face accessing legal assistance for these issues. The reports that have been published have tended to focus on general issues facing prisoners post release or the needs of specific groups of prisoners (e.g., women, Aboriginal women). Yet, prisoners and people recently released from prison were identified in the public consultations conducted for the first stage of the Access to Justice Research Program, as people who face particular substantial barriers in obtaining legal assistance and participating effectively in the legal system. Further, prisoners were one of a number of groups that were not reached in the Foundation's quantitative legal needs survey (a telephone based survey of a sample of households in NSW) and therefore need to be taken account of in this phase of the research.

Outline of proposed study
The proposed study will primarily utilise qualitative research methods, although the viability of a quantitative component to the study will also be explored. We plan to not only interview people who are, or have been in prison, but also groups and agencies that support prisoners and those released from prison, legal service providers, government agencies and other interested stakeholders. Relevant literature and statistical data will also be reviewed.

The project proposes to examine:

  1. the legal issues of prisoners and ex-prisoners in NSW
  2. the capacity of prisoners and ex-prisoners to:
    – obtain legal assistance
    – participate effectively in the legal system
    – obtain assistance from non-legal advocacy and support (including non-legal forms of redress, complaints handling procedures etc).
  3. The capacity of disadvantaged people (including prisoners and ex-prisoners) to participate effectively in the law reform process is being addressed in a separate study by the Law and Justice Foundation.

Overview of prisoner population
As of June 30 2003, there were 8,796 adults in the custody of the Department of Corrective Services. Over 90% were in full time custody, and 9% were in periodic detention. There were a further 298 young people in the custody of the Department of Juvenile Justice, at this time.
According to Department of Corrective Services census data, the adult prison population in NSW consists of people who have been convicted and sentenced (73%), people on remand/awaiting trial (20%), people who have appealed their conviction (5%) and forensic patients (1%). In terms of basic demographic make-profile, in NSW 86% of adult prisoners were aged 44 years or younger with 40% aged between 25 and 34 years. The vast majority (94%) of both juvenile and adult prisoners in NSW are male. Nearly 18% of adult prisoners and 44% of young people in custody in 2003 identified as Aboriginal or Torres Strait Islander people (compared with 2% in the general population).

Study sample
The number and demographic profile (male/female, adult/juvenile) of the prisoner sample drawn for the research will be decided following initial consultations with stakeholders. Other key characteristics that may be considered in the sampling process (because they may differentially affect prisonersí legal and access to justice needs) include security classification, the length of incarceration, history of incarceration or periods of state care, location of the prison and segregation from the general prison population.
The next steps

In order to formulate a more detailed research plan and prepare data collection instruments, the project team is consulting with various stakeholders on an informal basis on the following issues:
Legal problems encountered by prisoners and people recently released from prison;
Existing services and processes to deal with these problems;
The barriers that obstruct access to justice and legal assistance for people in prison and those recently released; and
Useful services and processes not provided by the legal system that may assist prisoners and ex-prisoners to address their legal issues.

For further information on this Project contact Suzie Forell or
Anne Grunseit, Senior Researchers, Law & Justice Foundation of NSW,
Ph. 02 9221 3900, Fx. 02 9221 6280
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