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Prison Issues

Women

Tracy Brannigan Action Plan

tracy brannigan

Tracy Brannigan

Tracy Brannigan died in prison on Monday 25 February 2013. She should never have been isolated from her friends’ support by being placed in a ‘high needs’ cell when she was clearly under the influence of drugs. Had proper services been provided, such as drug rehabilitation, intervention, dry cell and sufficient monitoring, Tracy would still be alive today. She should have been able to use her time in prison effectively, but instead she was left frustrated without access to education and a computer. The inquest into Tracy’s death failed as it lacked the legal support prepared to investigate and expose these issues and link them to similar past cases.

The Tracy Brannigan Action Plan

The Tracy Brannigan Action Plan (download here) is an important document that details the circumstances surrounding the death of a valued individual in a failing prison system, and proposes a strategy to ensure that avoidable tragedies such as Tracy’s death do not happen again.

Overview of the Action Plan 

Tracy’s case highlights the unfortunate condition of women in prisons, bringing to the forefront key problems faced by women in prison. They include:

  • a lack of concern for their wellbeing and safety,
  • a lack of access to educational materials,
  • a disregard for their needs in relation to seeing family and children, and
  • a recurrence of deaths in custody

The issues highlighted are apparent and need to be addressed. Authorities held the formal inquest into the circumstances of her death poorly, with no regard for the value and dignity of her life as a contributing member of society. The Coroner ignored vital evidence and refused to make findings in favour of recommendations that would greatly alleviate the concerns faced by incarcerated women. We now look to the Corrective Services of NSW (CSNSW) for an answer to our proposals.

These are our proposals:

  1. The creation of a ‘Deaths in Custody Information Centre’ to accumulate and assist in implementing the best practices derived from Coronial Recommendations acquired from previous deaths and Coronial Reports.
  2. CSNSW and Justice Health must create a culture in which their employees respect the human rights of prisoners. This should be reflected in open and accessible policies and protocols that reflect their special responsibilities in holding prisoners in their total control, away from the support of their family and community.
  3. A strict approach to holding health and prison authorities to a high legal duty of care that reflects the vulnerability of prisoners under the absolute control and responsibility of the State. Also that the staff personally have that same responsibility, so that there will be a rise to findings of civil liability and compensation payment to families that will ensure those obligations are respected in the future.
  4. The provision of responsive legal aid for families at inquests, to examine witnesses and use the ‘Deaths in Custody Information Centre’ to enforce effective policies and implement lessons that will prevent future deaths.
  5. The implementation of ‘peer support’ programs similar to those successfully implemented in Scotland to give social support to at risk prisoners.
  6. A review of current drug and alcohol rehabilitation programs, guaranteeing access to them as of right, including harm minimisation programs.
  7. Guaranteed access to education along with the implementation of computers in cells, where prisoners spend most of their time.
  8. A review of the monitoring systems including surveillance cameras in place for at risk prisoners.
  9. Terminating the use of isolation as a punishment in prison, especially in the case of ‘at-risk’ prisoners. Although it is an easy management tool for administrators, it deprives prisoners of access to positive stimulation and support systems.
  10. A review of punishment sanctions when prisoners breach prison rules, to ensure they aren’t destructive but offer positive direction.

We intend to follow through on these issues and bring about meaningful change that will better the lives of all Australian prisoners.

Sentencing

Remand

Over the last fifteen years, there has been a sharp increase in unsentenced women being imprisoned on remand in Australia. While on remand, women prisoners have limited access to programs, services and support and are further limited due to the prisons classification system – remandees usually highly classified. Women prisoners on remand are more likely to be released with little support for their rehabilitation into real life.

 

Aggregate Sentence Length

Women are likely to get shorter aggregate sentences and less time to serve in prison than men; in 2013, the average aggregate sentence for woman was 9 months although it was 17 months for men. However, the sentencing of women is more likely to be inappropriate and ineffective; indeed, far from the ‘rational’ of a socially and financially independent male, a battered woman, a mother with dependent children, a woman who goes into debt to help another, a person with a drug addiction, a person who faces structural racism or suffers trauma, the legal system awards blame and does not even consider support as part of the equation. Ejected from society because of their illegal activity substantially too often perceived as ‘anti-feminine’ behaviour, prisons do not necessarily offer the appropriate means for women to live correctly in prison. For instance, some jurisdictions attempted to switch the traditional tracksuit with floral dresses. Interestingly enough, basic health, nutrition and humane treatment do not seem to equal ‘feminine needs’.

For both men and women, people who have previously been incarcerated are more likely to receive a term of imprisonment than those who have not. The rate of women returning to prison thorough Australia has increased. In 2013 the rate of recidivism for Indigenous women was 66.8% while non-Indigenous women’s was 41.5%.

 

Early release

Prospects of earning freedom provide an important incentive for individuals who have lost their liberty to improve themselves and to cooperate with the system. Removing that opportunity is inhumane leaves prisoners demoralized, passive and liable to be institutionalised. This often leads to boredom and a return to violence and drugs, which does not prepare them for life outside.

“Remissions” refers to a structured system that aims to encourage self-improvement and positive behaviour in prisoners by giving them a sense of responsibility and direction in life. It converts them from passive ‘recipients of punishment’ to active participants in their own lives.

In 2006, the Law Council of Australia recommended a system of earned remission in its submission to the Australian Law Reform Commission discussion paper, observing that where a prisoner behaved particularly well in prison and demonstrated real rehabilitation, a mechanism should be available to reduce the non-parole period.

The Nagle Royal Commission conducted in 1976-1978 also recommended a remission system taken on both head sentence and the non-parole period. It considered the system adopted in Victoria should be implemented in New South Wales. The Commission’s recommendations were adopted and provided prisoners proper incentives to work hard, behave well, and strive towards self-improvement, until it was repealed in 1989. Consequently, sentences have become longer and overcrowding in prisons has worsened since, in removing remissions, the Government has severely limited its options for managing the size of the prison population.

 

Sentencing options for Indigenous Women in Australia

Courts have a range of custodial and non-custodial sentencing options available, such as imprisonment, good behaviour orders, fines and discharges. Currently there are no specific legislative sentencing options for Indigenous Women offenders, although it has been recommended to amend sentencing legislations to make the ‘custody threshold’ higher for Indigenous offenders.

 

Indigenous Sentencing Courts

Indigenous sentencing courts have been introduced in Australia as a more culturally appropriate system of justice for Aboriginal and Torres Strait Islander peoples. By 2009, over 50 of them had been implemented all around Australia. The main distinctive feature of those courts is that criminal proceedings take place informally, allowing for an open exchange of information between judicial officers, the defendant, the victim and their communities.

Indigenous Women in Prisons

In Australia, Indigenous women are overrepresented in prisons. The number of indigenous female prisoners in NSW has increased by 230% from 1998-2009. In comparison, the number of non-indigenous female prisoners has risen by 43%.

High incarceration rates are partly attributed to practices adopted by police authorities. This involves stationing a large number of police at largely indigenous populated areas. This generates a higher level of surveillance on Indigenous groups.

In addition, on average indigenous women serve shorter sentences than their non-indigenous counterparts. This suggests that they are being imprisoned for minor offences, such as alcohol related offences, and that imprisonment is not being used as a last resort.

The high level of incarceration occurs in the context of family violence, over-policing for selected offences, poor health, unemployment and poverty. Overall indigenous women have a double disadvantage, namely race and gender. To overcome these issues the law must recognise that indigenous women in particular are socially and economically oppressed. Many of the services that are currently provided for the Indigenous prison community are tailored towards indigenous men. Until the law recognises these rights, indigenous women will be continue to be treated unjustly.

The Bangkok Rules

Officially, the ‘Bangkok Rules’ is the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, and the UN General Assembly adopted the rules in December 2010. They are relevant in transcending international issues relating to prison and incarceration communities that do not cater to women. The Bangkok Rules should always be read in conjunction with the Standard Minimum Rules for the Treatment of Prisoners (STMRTP). The Bangkok rules merely supplements them by providing foundational rules that facilitate to female prisoners to avoid bureaucratic discrimination.

According to the book “Using Participatory Action Research to put the Bangkok Rule into Practice, The Thai Prison Case Study”:

  • Culturally women are abused both within the social world and within incarceration. Therefore, there treatment of women should be specialised.
  • The Bangkok Rules are not linked to discrimination, but rather acknowledge particular needs that are linked to female gender physically, socially and culturally.

 

Consideration is given to issues such as:

  • violence
  • victimisation
  • powerlessness to bargain or plea
  • separation from children
  • care for elderly family (parents) outside of prison
  • health problems (reproductive health and sexually transmitted diseases)
  • the problem of pregnant women and giving birth in prison
  • psychological conditions of prison which enforce stress, pressure, self-harm and suicide.

 

Statement by Debbie Kilroy, CEO of Sisters Inside:

“The Australian Human Rights Commission (AHRC) should investigate Australia's compliance with the Bangkok Rules (the United Nations Rules on the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders).  Adopted by the UN General Assembly in 2011, the Bangkok Rules recognises that women have a different criminogenic profile toThe Rules are designed to ensure the equitable and appropriate treatment of criminalised women.  The AHRC should be resourced to play a leading role in ensuring that all Australian states and territories meet their human rights obligations under the Bangkok Rules.

The tough on crime approach which has characterised Australia's approach over recent decades has been a demonstrable failure.  Far from reducing crime, it has created a climate in which crime can flourish - both now and into the future.

 

Relevance of the ‘Bangkok Rules’ to women and children:

Rule 48:

  1. Pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a program drawn up and monitored by a qualified health practitioner. Adequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers.

  2. Women prisoners shall not be discouraged from breastfeeding their children, unless there are specific health reasons to do so.

  3. The medical and nutritional needs of women prisoners who have recently given birth, but whose babies are not with them in prison, shall be included in treatment programs.

 

Rule 49:

Decisions to allow children to stay with their mothers in prison shall be based on the best interests of the children. Children in prison with their mothers shall never be treated as prisoners.

 

Rule 50:

Women prisoners whose children are in prison with them shall be provided with the maximum possible opportunities to spend time with their children.

 

Rule 51:

Children living with their mothers in prison shall be provided with ongoing health-care services and specialists, in collaboration with community health services, shall monitor their development.

The environment provided for such children’s upbringing shall be as close as possible to that of a child outside prison.

 

Rule 52:

Decisions as to when a child is to be separated from its mother shall be based on individual assessments and the best interests of the child within the scope of relevant national laws.

The removal of the child from prison shall be undertaken with sensitivity, only when alternative care arrangements for the child have been identified and, in the case of foreign-national prisoners, in consultation with consular officials.

After children are separated from their mothers and placed with family or relatives or in other alternative care, women prisoners shall be given the maximum possible opportunity and facilities to meet with their children, when it is in the best interests of the children and when public safety is not compromised.

Relevance of the ‘Standard Minimum Rules for the Treatment of Prisoners’ to women and children: 

Rule 79:

Special attention shall be paid to the maintenance and improvement of such relations between a prisoner and his family as are desirable in the best interests of both.

 

Rule 26:

Women prisoners’ contact with their families, including their children, their children’s guardians and legal representatives shall be encouraged and facilitated by all reasonable means. Where possible, measures shall be taken to counterbalance disadvantages faced by women detained in institutions located far from their homes.

 

Rule 27:

Where conjugal visits are allowed, women prisoners shall be able to exercise this right on an equal basis with men.

 

Rule 28:

Visits involving children shall take place in an environment that is conducive to a positive visiting experience, including with regard to staff attitudes, and shall allow open contact between mother and child. Visits involving extended contact with children should be encouraged, where possible.

 

Rule 23:

In women’s institutions there shall be special accommodation for all necessary prenatal and postnatal care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital outside the institution. If a child is born in a prison, it shall not be mentioned in the birth certificate.

Where nursing infants are allowed to remain in the institution with their mothers, provision shall be made for a nursery staffed by qualified persons, where the infants shall be placed when they are not in the care of their mothers.

Do women currently have any human rights in Australian prisons?

Australia is a member of the International Covenant on Civil and Political Rights (ICCPR). The ICCPR has a number of provisions that are relevant to prisoners including:

  • Article 7, which states that ‘(n)o one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment’
  • Article 10(1), which provides that ‘(a)ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’
  • Article 10(3), which highlights that ‘(t)he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation’

 

All human rights are to be preserved while a person is in prison according to international human rights law, except for the right of liberty.[4] See the United Nations General Assembly’s “Basic Principles for the Treatment of Prisoners” (Principle 5). As such prisoners still maintain among other things, ‘their right to life, personal security, privacy, the right to equality and not to be discriminated against’.

Drug Use

Drug use is a significant contributing factor to women’s imprisonment in Australia. Theories on the causal relationship between drug use and crime in Australian literature have often overlooked the influence of gender as a confounding variable. However, research indicates that pathways into drug use and crime differ for males and females. Data from the Australian Institute of Criminology's Drug Use Monitoring in Australia program found that female detainees were more likely to use 'hard' drugs and to have been arrested for a property crime1. This study explored the relationship between drug use, offending, mental health and experiences of child abuse among a sample of police detainees. The relationship between experiences of mental illness, drug use and arrest was also stronger for female detainees2.

Women in prison use illicit drugs differently to men, with more than 14% of women reporting use of ecstasy, 20% heroin, 30% tranquillizers, 38% analgesics and 44% methamphetamine compared with men in prison (respectively 9%, 14%, 15%, 15% and

36%)3. More women (56%) than men (42%) reported previous or current injecting drug use4. Eighty percent (80%) of female prisoners are also daily smokers5.

A number of ‘core programs’ exist in prisons throughout Australia, which target specific issues, including that of drug use. See ‘Education and Training: Core Programs’ for further information regarding such programs. Nevertheless, the programs and services, which are implemented in prisons, are still inadequate, inconsistent and not gender-specific in they’re approach.

Given the high rates of both women and men committing crime due to drug use, special drug courts have been set up in New South Wales, Queensland, South Australia, Victoria and Western Australia to establish and manage drug diversionary programs. Other agencies (for example, police, magistrates’ courts) have also set up their own drug diversion programs. In some Australian jurisdictions, programs catering specifically to the drug-related treatment needs of young people have also been established.

An intermediate measure of the design and working of these programs is the completion or graduation rate, which hovers between 30% and 40%6 7. Offenders who complete a drug diversion program are less likely to reoffend during the intervention period as well as after graduating.

A low rate of completion reflects poorly upon the functioning of drug diversion programs. Although the low program completion rates may reflect the entrenched nature of drug abuse and addiction, there seems to be a need for significant practice changes for these programs to work effectively8.

The eligibility requirements of some of these ‘drug court’ programs differ from state to state. In some cases, individuals with a particular problem that is under the consideration of a court may enrol themselves in these programs. The effectiveness of many of these programs has not been fully studied.



[1] Forsythe, L. and Adams, K. Australian Institute of Criminology report No 384, Trends & Issues in Crime and the Criminal Justice, 2009.

[2] Ibid.

[3] Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012, Canberra: 2013, p. 77.

[4] Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012, Canberra: 2013, p. 78.

[5] Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012, Canberra: 2013, p. 84.

[6] Ziersch E & Marshall J, 2012. The South Australian Drug Court: a recidivism study. Adelaide: Attorney-General’s

Department. (Accessed: 29 April, 2014) http://www.ocsar.sa.gov.au/docs/evaluation_reports/SADrugCourtRecidivismStudy.pdf

[7] Payne J, 2008, The Queensland Drug Court: a recidivism study of the first 100 graduates. Research and public policy series no. 83. Canberra: Australian Institute of Criminology. (Accessed: 12 May 2014), http://www.aic.gov.au/publications/current series/rpp/81-99/rpp83.html

[8] ibid.

Education and Training

Given that the development of personal skills and knowledge is crucial to the rehabilitation of women prisoners, problems surrounding education and training in women’s prisons must also be examined.



Education and Employment
Women are less likely than men to have access to education, rehabilitation and employment training programs while imprisoned. As unemployment has been found to be a strong predictor of recidivism, this inaccessibility can have negative implications for women post-release.1 In addition, prior to incarceration, women are less likely than men to be employed with unemployment rates of 69% compared with 46%.2 Women are also less likely to have employment organised prior to their release than men (10% and 31% respectively).3

Corrective Service departments throughout Australia have introduced education and training programs in their prisons, and use course completions and reduced recidivism as measures of success.4 Importantly, programs that reduce recidivism rates, such as in-prison study and workplace integrated learning, provide the greatest return to the community in terms of reducing the costs of imprisonment as well as other policing and legal costs. Education and training in prison imparts specific and generic life skills; while workplace integrated learning recognises the importance of and promotes the social aspects of successful reintegration. As such, computers are an important tool to target recidivism through education and self-improvement. Computer literacy is an increasingly vital requirement for everyday life; it significantly affects education, vocational training and career prospects.

Women in prison can and do earn a higher wage by working in a prison industry than what they might earn if they choose to do a full-time educational course. In NSW, women undertaking full-time education are placed on the wage classification Level 1 and may progress to Level 3.5 This means that they can receive a wage that varies between $17.76 per week and $24.15 per week.6 By contrast, from participating in the prison work industry, women are able to increase their income earning ability to $35-65 per week. This results in minimal numbers of women in prison completing education. Additionally women are more likely than men to rely on their ‘prison wage’ to purchase their toiletries and personal items, as men more frequently have greater levels of family and financial support while in prison than do women.7

In 2002, the decision in the court case ofMiddleton v Commissioner of Corrective Services of New South Wales, Justice Dowd discussed the role of education in rehabilitation stating that "it is hard to imagine a better rehabilitation tool than the gaining of tertiary qualifications of a sophisticated nature". The most important aspect of this scheme is that it encourages prisoner education. It is important to implement computers within prisons to allow prisoners to successfully move towards a TAFE or university qualification, and do so in a far more user-friendly method than any prison library or occasional prison educational course.

Access to Programs and Services
Advocates for women prisoners throughout Australia have asserted that the programs and services available to women in prison are not comparable in quantity, quality, or variety to those provided to male prisoners, and contrary to the Bangkok Rules. The small number of women prisoners in custody is one of the main arguments for the low number of programs that focus on women prisoners’ particular and special needs.8

The tragic case of Tracy Brannigan in NSW highlights the need for active development and opportunities for women in prisons. Tracy and her family fought for her right to develop whilst in prison and as such she should have been able to use her prison time effectively. Instead Tracy was left frustrated with no computer in her cell or access to other productive alternatives. As a result of isolation from friends and family, sufficient monitoring, general inactivity and a lack of rehabilitation services, Tracy relapsed into drug use and died from a drug overdose in a NSW prison in February 2013.9 Her avoidable death in custody demonstrates the need for change and interventions in the women’s prison system.

Core Programs
In Australia, each prison has different ‘core programs’. Generally, these programs address issues like anger management, domestic violence (for perpetrators and survivors), alcohol and drugs and teach cognitive skills, literacy and numeracy. In the last ten to fifteen years these programs have differed in content for male and female prison populations.9 Programs designed specifically for women in various States and Territories address self-esteem, parenting, communication and assertiveness, skills and change, life choices and stress management. 

During their incarceration, women prisoners may be offered and encouraged to attend a variety of core programs. The programs a woman attends or gains access to will largely depend on the length of her sentence, the nature of the offence, what prison she is located in and/or what actual program is avaialable in that particular prison and an assessment to determine her needs and risk of re–offending. Unfortunately most women on remand in prison (unsentenced) across Australia do not generally have access to core programs.



[1] NSW Legislative Council, Interim report: Issues relating to women, Select Committee on the Increase in Prisoner Population 2000, 13 November 2001

[2] Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012, Canberra: 2013, p.22.

[3] Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012, Canberra: 2013, p.23.

[4] Nally, J, Lockwood, S, Knutson, K, Ho, Taiping, An Evaluation of the Effect of Correctional Education Programs on Post-Release Recidivism and Employment, 63 Journal of Correctional Education 1, 2012 pp. 69-89.

[5] Corrective Services Industries 2013, Corrective Services NSW, (Accessed: 26 May 2014)

http://www.csi.nsw.gov.au/__data/assets/pdf_file/0018/281340/8.2Inmatewages-Update8July2013.pdf

[6] ibid.

[7] Women in Prison Advocacy Network, (WIPAN) 2013

[8] Women in Prison Advocacy Network (WIPAN), 2013

[9] Justice Action 2013, Justice Action, (Accessed: 26 May 2014), http://www.justiceaction.org.au/cms/component/k2/item/519-tracy-brannigan-avoidable-death-in-custody.

[10] Howells, Kevin, ‘Treatment, Management and Rehabilitation of Women in Prison’, 2001, p.8.

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