Criminal Justice System Struggles to Deal with Mentally Ill

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Mental health

The US Supreme Court’s recent ruling that an inmate on death row has the right to a hearing to determine whether he is “mentally ill” and should not therefore be executed raises questions about how we treat those with mental health issues in the criminal justice system.

The US case

The US man was sentenced to death for killing a police officer seven years before the execution of inmates with “mental illnesses” was declared unconstitutional.

The man, who has learning difficulties and an IQ of 75, later appealed to be spared on the grounds of mental illness. He was initially denied a hearing, but on June 18, the Supreme Court permitted the hearing in a 5 – 4 decision.

While the fate of the man is yet to be decided, many argue that it is inhumane to execute a person who does not fully understand the consequences of their actions.

Whether the man in question fits within this category is debatable, because learning difficulties do not necessarily amount to an inability to understand right from wrong.

Are the intellectually disabled disadvantaged in our legal system?

While Australia does not have the death penalty, those will mental health issues are still disadvantaged in a range of ways when they come within our criminal justice system. Indeed, there are a large number of people with who suffer from mental illnesses, yet end up in prison rather than a mental health care facility.

According to No Bars, a partnership project funded by NSW Health, people with an intellectual disability form a disproportionately high percentage of those coming into contact with the criminal justice system.

The organisation notes that those suffering from mental health conditions are arrested, questioned and detained for minor public order offences more often than members of the general population. Harsher penalties are also handed out, with fewer intellectual disability sentencing options available.

Disadvantage often stems from the affected person’s lack of understanding of what is happening when being in custody or in court. This vulnerability extends to their treatment in prisons, and their rate of reoffending is much higher than the general prison population.

Some of these issues arose last year in the case of intellectually impaired Aboriginal woman, Rosie Anne Fulton. She ended up in a WA prison for 18 months on bail, without trial or conviction, because there were no other suitable facilities for her to be remanded in.

Facts and figures

According to the Judicial Commission of NSW, those with intellectual disabilities are four times more likely to be incarcerated in the state’s prisons than those without.

A report for the NSW Government in December 2012 outlined the key findings of a University of NSW research project which looked at 2,731 individuals with either an intellectual disability or mental illness who had had contact with the criminal justice system.

Of the 2,731 individuals, 1,463 had a cognitive disability. The research found that this group had twice as many periods of incarceration per year as those without, and two additional contacts with police.

According to Victorian disability advocacy service Villamanta, studies have shown that offenders with disabilities are disproportionately from indigenous backgrounds and are less likely to be educated and employed. They are more likely to be poor, to have suffered from abuse or neglect as children, and to have behavioural issues and poor social and communication skills.

Some of the issues

Problems can arise when a defendant with a mental health problem is also illiterate; in other words, unable to read or communicate effectively during police interview or in court.

A person’s impairment may not be obvious, and may not be disclosed for a number of reasons, including that the person doesn’t actually realise they have a disability.

Judcom states that defendants can fatigue quickly during court hearings, and can find it difficult to follow complex language and keep up with the speed of proceedings, which means they may require adjustments to be made to the process.

According to Villamanta, people with mental health issues who are sentenced to prison are more likely to be emotionally and physically abused during their incarceration. They are also less likely to be paroled, as suitable post-release accommodation and programs are scarce.

An ethical issue

There are many disadvantages for those with intellectual disability in the criminal justice system.

They often end up in prison as a result of their condition, and at the same time, they can be refused resources, treatment and sentencing alternatives that would be more appropriate for rehabilitation and prevention.

While we’re still removed from the death penalty situation in the US, we certainly have a long way to go when it comes to addressing the special difficulties arising from subjecting those with mental health problems to an increasingly punitive criminal justice system.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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