The hidden face of brain injury in Tasmania’s criminal justice system

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

                                                                                                           – Nelson Mandela, imprisoned for 27+ years

It is equally true that you can tell a lot about a nation by how it treats people with disabilities, and especially how people with disabilities are treated within the justice system. The sad reality is that once involved with the justice system, this already marginalised group is pushed further to the fringes of society.

Our brains are involved in every aspect of our human experience: our personality, emotions, cognitive function (mental processes and thinking ability) and our behaviour. Brain injury changes how the brain works, causing a range of ongoing effects to the person. People living with brain injury are over-represented in the justice system as victims, witnesses, suspects and offenders. While there is no data about brain injury in the Tasmanian criminal justice system, one Victorian study found verified rates of brain injury up to 30–40% in prison,¹ while in the general community the rate is around 2%.² Combined with the high rates of other conditions and disabilities, one could say the justice sector is as much a disability sector – yet the staff largely aren’t trained to recognise and appropriately respond to disability.  

Brain injury doesn’t excuse offending – but it can go a long way to explaining some offending behaviours.

Behaviour changes are a common effect of brain injury and some of those behaviours may include impulsivity, poor judgement and difficulty coping with strong emotions like anger. In some situations, these behaviours may escalate, leading to unsafe, inappropriate or antisocial behaviours. When the impacts of brain injury aren’t recognised, understood and responded to appropriately, it can result in a person living with brain injury finding themselves on the wrong side of the law.

Once involved in the criminal justice system, brain injury–related behaviours are largely seen through a criminal lens. Viewing all offending solely through a criminal lens fails people living with the behavioural effects of a brain injury.

As the saying goes … “If the only tool you have is a hammer, it is tempting to treat everything as if it were a nail”.

While on the surface, all offending behaviours might seem the same, the causes vary greatly. Take the example of family violence. We know that patterns of power and coercive control are the defining features of family violence, whereas poor stress tolerance and emotional regulation are more common drivers for people living with brain injury. While the violent behaviours might look the same, the underlying factors are different.

Just as the causes of offending might be different, so too are the solutions. While the justice system has behaviour change programs, there is little evidence that they are effective or appropriate for people whose offending is linked to a brain injury or other conditions that cause cognitive impairment. Furthermore, accessibility is an ongoing issue. For example, the evidence shows people with brain injury tend to engage in repeated low-level offending, which usually results in short custodial sentences. People on shorter sentences (under 6 months) are generally not eligible to join psycho-educational groups in prison or personalised reintegration planning.

While more intensive specialist supports are available, they are usually limited to those with severe presentations. This leaves people with more moderate presenting brain injuries (the majority) to fend for themselves. This general lack of accessibility results in people with brain injury being disadvantaged at every stage of the justice system.  

People living with brain injury are also disadvantaged when returning to the community after a period of imprisonment. The mental juggle of reintegration is an uphill battle for any returning citizen – but is especially magnified for those with cognitive impairment. The structure and order of prison is suddenly replaced with the chaos and disorder of the outside world. Planning and organisation are common challenges for people living with brain injury. It is a struggle to organise transport, manage the conditions of community-based orders, find a job and accommodation (during a housing crisis) and rebuild diminished support networks – all amongst the backdrop of stigma and discrimination. As a result, unemployment, poverty, homelessness and a return to offending are not uncommon for returning citizens with brain injury. For those who have nothing left to lose, prison stops being a deterrent. In fact, it can be an attractive alternative. And the cycle of reoffending continues.

How fair and “just” is a justice system that is not designed to recognise and respond appropriately to the complex behaviours and needs of people with brain injury and cognitive disabilities?

Most people with brain injury will never offend and will never have contact with the criminal justice system. But for those that do, they face the dual disadvantage and stigma of having a “disability” and being a “criminal”. At the Brain Injury Association of Tasmania we believe the rights of ALL people living with brain injury should be respected, whether they are in the community or in prison. We believe we raise up a community, and a nation, by advocating for the rights and dignity of those who continue to be neglected at the fringes of our society. We also believe that by increasing awareness and knowledge of brain injury, we can improve outcomes for our most marginalised communities.  

As part of our Recognise, Respect, Respond and Reform Program, BIAT has been shining a light on the systematic failures that affect people living with brain injury involved with Tasmania’s criminal justice system as offenders. We have been working closely with government and non-government services that make up the criminal justice system to improve the way people with cognitive impairment are recognised and responded to.

Some of the key outcomes BIAT has been working toward include:

• improving screening and assessment for brain injury and cognitive impairment in justice services.
• developing the JustACE Program in partnership with Wellways. This state-wide program is designed to work with people with cognitive impairment who are involved with the Tasmanian criminal justice system as offenders.
• providing information, education and resources to staff within the criminal justice system and community-based services.
• advocating for systemic and legislative change to support therapeutic jurisprudence approaches.
• supporting diversion programs and initiatives.

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The Recognise, Respect, Respond and Reform Program is funded by the Australian Government Department of Social Services. Visit www.dss.gov.au for more information.

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1. Jackson, M. & Hardy, G. (2010). Acquired Brain Injury: screening, identification, and validation in the Victorian correctional system. La Trobe University, Australia.

2. Australian Institute of Health and Welfare. (2007). Disability in Australia: acquired brain injury. Bulletin no. 55. Cat no. AUS 96. Retrieved from http://www.aihw.gov.au/

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