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Brain Injury and the Justice System - Fact Sheet

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Brain Injury and the Justice System - Fact Sheet

People with Acquired Brain Injury (ABI) are significantly over-represented in the criminal justice system. Recent Australian and international research has found that over 40% of prisoners have acquired a brain injury.

Studies that included people who experienced loss of consciousness, concussion or mild traumatic brain injury have reported prevalence rates of approximately 60% to 90% among prison populations. Given the numbers of people with a brain injury, intellectual disability, and mental illness within Corrections, it is arguable that employees of the Department of Justice work as much in a disability system as a justice system.

Recent Australian research indicates that, compared to the general population, people with a brain injury have higher rates of contact with police, more court appearances and more convictions, longer periods of incarceration, and are more likely to be victims of crime. People with a brain injury generally commit relatively minor offences (e.g., 40% of offences relate to theft and road traffic infringements), are under the influence of alcohol at the time of the offence, and have difficulty accessing information about their rights or legal situation.

Those who come into contact with the criminal justice system typically have very complex life circumstances. Many present with multiple and complex needs, and may be experiencing co-existing mental illness, alcohol or drug dependence, health complaints, breakdown of the family unit or unstable accommodation. There is evidence to suggest that complex circumstances can be precipitated and exacerbated by contact with the criminal justice system.

Cognitive and behaviour changes
Cognitive and behaviour changes that often follow a brain injury (such as disinhibition and impaired impulse control, poor social judgement, irritability, low-frustration tolerance, anger and aggression) can lead to behaviour that falls outside societal norms and contravenes the law. For example, poor memory and executive function may result in a person forgetting to pay for purchases, or neglecting fines and being legally pursued. Impulsive behaviour may compel someone to put a grocery item in their bag, and subsequently be charged for theft.

Disinhibited behaviour in a community setting, such as swearing or urinating in public, may result in charges for offensive behaviour.

People with a brain injury sometimes sign contracts that they don't fully understand (such as rental agreements, mobile phone offers, loans or a house mortgage) and then fail to comply with the agreement, resulting in prosecution for fraud. Reduced frustration tolerance, susceptibility to stress and poor anger management can result in heated social exchanges or assault (as either a perpetrator or victim). These difficulties can create a cycle where a person is charged, convicted and sentenced, rather than treated, rehabilitated and supported in the community.

The cycle of recidivism
Both individual factors and systemic barriers present significant challenges, and unfortunately these can contribute to a cycle of recidivism. The individual may have limited understanding of their legal rights, respond impulsively without thinking strategically through the issues, be intimidated and make false confessions, have trouble controlling their emotions in court, or have difficulty communicating.

The 'system' may fail to identify that the person has a cognitive impairment, may fail to provide a fair and equitable response with respect to dealing with disability issues, be unable to arrange affordable legal services as needed, or not provide adequately trained staff and appropriate procedures for dealing effectively with persons with cognitive impairment.

We have a long way to go in terms of equity and just responses. People with a brain injury can be disadvantaged at each stage of the criminal justice process. For example, a police officer might assume that a victim of crime who has a disability will not be a credible witness when presenting evidence, and so the case may not be pursued as rigorously. Duty lawyers may not recognise ABI (the "hidden disability"), thereby leaving a charged client to be judged without adequate consideration of their disability. People with a brain injury are not eligible for the same service supports as people with an intellectual disability. Only a small proportion of these people are managing to access specialist disability legal services.

Lack of support
Release from prison to the community would normally be considered to be a positive change of circumstances, however, release planning processes can be inadequate, and individuals with a brain injury are sometimes released into homelessness, with limited or no specialist support, or time-limited support from generic services without the benefit of case history or knowledge of the ABI service sector.

Individuals with cognitive deficits lose the routine, structure, and predictability of the prison environment that can help achieve stable behaviour and mood. The stage seems, then, to be set for recidivism and continued involvement with the criminal justice system.

There is hope. A number of initiatives have been rolled out in recent years to address the inequities. Our team at Diverge is currently working on a booklet of rights and resources that will provide valuable information for service providers, individuals and families.

References and further information

Further information is available in the report "Issues and inequities facing people with ABI in the criminal justice system", Brown & Kelly (2012). You can download the full report at, email or call 03 9329 4330.

Diverge is a non-profit organisation based in Victoria with specialists in brain injury, complex cases and behaviour support services.


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