This article was originally published in The Power to Persuade on 28 March 2019
If we believe in a society that is just and equitable, and where the rule of law is both respected and effective in maintaining such a society, then our criminal justice system is failing us in achieving these aims. In today’s post, Helen Forster of Good Shepherd Australia New Zealand proposes basic principles for addressing shortcomings in how the criminal justice system interacts with women, and proposes that innovative health justice partnerships offer a promising corrective.
“WOMEN’S PRISONS ARE FILLED WITH STORIES OF PEOPLE LIKE ME … THAT HAVE HAD TRAUMA, ABUSE, REALLY VIOLENT RELATIONSHIPS … IT’S ACTUALLY VERY SAD TO THINK THAT WE END UP IN PRISON AFTER SUCH HECTIC PASTS.” – BEKKI 
AND WE CALL THIS JUSTICE?
Four Corners recent episode ‘Criminalising Women’ investigates why there are more women in prison than ever before. Speaking to three women with direct experience of incarceration, the program provides personalised and compelling stories that are representative of many women in our prisons; “… I knew every day when I opened my eyes I would be wondering is today the day I am either going to die or I’m going to be arrested.”
The mainstream media is full of one tragic story after another – including incarceration for unpaid fines particularly amongst Indigenous women, intoxication, homelessness, and clinical diagnoses – illustrating that our prison populations are over-represented by the most disadvantaged members of our community.
Recent figures from Corrections Victoria show imprisonment rates are going up – especially for women, and even more so for Aboriginal and Torres Strait Islander women. Future trajectories suggest the rates of incarceration will continue to increase. Meanwhile, there is no evidence to suggest this is due to an overall increase in crime (see here and here).
The well-established societal drivers of ‘criminality’ (such as poverty, unemployment, mental health, and addiction) are now cross-hatching with more contemporary developments, such as legal changes to bail and punitive infringements systems, contributing to the number of people coming into contact with the criminal justice system and the rise in incarceration rates.
Furthermore, the criminal justice system is over-burdened and under-resourced. This results in lengthy delays, which can impact both emotionally and financially for the victim and the accused, diminished time for judges and magistrates to do their jobs, and increased workloads for court workers across the board.
Underpinning, or arguably informing, this state of affairs, is structural disadvantage and discrimination. Social injustices are variously experienced by women, non-white individuals, people from CALD backgrounds, members of the LGBTIQ community, and people with disability.
On examination of the current situation in Australia, it is not unreasonable to suggest that in order to be a just society we need to rethink how we ‘do justice’.
A CONSTELLATION OF FACTORS RESULT IN THE WRONG PEOPLE BEING CRIMINALISED
When structures of power and the resultant flawed systems intersect to punish disadvantaged and/or vulnerable people, we see the results as:
- some people coming to court who shouldn’t be there (which strengthens the case for prevention and diversion) and
- in the example of many women in prison, we are criminalising people who are themselves victims.
This constellation of factors is evidenced by the particular case of incarcerated women.
THE EXAMPLE OF WOMEN IN PRISON
Many women are imprisoned due to relatively minor/non-violent offences. Surveys conducted by Corrections Victoria show “that female prisoners frequently report histories of family violence, high rates of housing instability and substance abuse that are often inter-related.” They also report that female prisoners experience mental health issues related to trauma, and experience very high incidences of abuse. Aboriginal and Torres Strait Islander women prisoners experience additional layers of entrenched disadvantage and intergenerational trauma. Added to these concerns, many incarcerated women are the primary carers of their children.
The offending profile and experiences of women who have spent time in prison demonstrate the gendered nature of incarceration – both at an individual and a structural level. It also supports a compelling argument for why many women should not be imprisoned and why alternatives should be considered.
HOW TO APPROACH SUCH AN OVERWHELMING PROBLEM?
Our criminal justice system is based upon an archaic set of assumptions and principles, operating from an adversarial model that is not designed to be easily understood or navigated by the lay person. Whether the criminal justice system is inherently flawed or merely not working, there is a need to rethink ways of ‘doing’ justice that will address current unmet needs and mitigate the ways in which particular groups of people are discriminated against (including from a systemic level).
Both immediate crises and longer-term priorities of the justice system must be addressed. That is, immediate support and resources, such as for trauma and addiction, combined with advocating for structural change is required.
Distilling current good practice, a checklist for rethinking justice might look something like this:
- Apply a feminist gender lens to solution-seeking. This approach is effectively modelled by Women’s Legal Services. Their policy work across eliminating violence, promoting economic security and improving access to justice highlights the differential experiences of women. For example, their Small Claims, Large Battles report was informative to the development of the inaugural Women’s Economic Security Statement released by the Australian Government. From that statement measures to support women’s economic independence including providing Specialist Domestic Violence units and Health Justice Partnerships, and extending early release of superannuation for victims of domestic and family violence.
- Consider and include the far-reaching issue of intersectionality – that is how race, LGBTIQ+ identity, experiences of disability, socioeconomic status and other overlapping identities impact individual experiences and inform structures of power. For example, taking an intersectional approach to family violence is critical to understand contextual factors and failed system responses for many victims.
- Employ consultation, prioritise community-led initiatives and adopt human-centred approaches – people as the “problem holders” can identify the problem and corresponding issues. As Dr Margaret Hagan states, “be in service of your users: know who you are working for and make their needs and goals your lode star for decision making.” A tailored and site specific/appropriate approach recognises that just because something works in one place does not mean it will work somewhere else..
- A history of colonialism permeates Australia as a whole and must be addressed in any ‘work’. The Maranguka Justice Reinvestment Project (an Aboriginal community partnership with Just Reinvest NSW) in Bourke for example, has had positive outcomes across the areas of domestic violence, juvenile crime and early childhood development. A key component of the project is an awareness of issues for Aboriginal and Torres Strait Islander people, instead of “policies set by governments in faraway Sydney and Canberra.”
Our current criminal justice system is not built to be so responsive to complex issues which sit behind criminality. How then could these principles be embedded in a meaningful way?
‘RETHINKING’ JUSTICE VIA THE HEALTH JUSTICE PARTNERSHIP MODEL
It is not possible to provide a panacea for all the problems outlined here – however, one example with the potential to play a part in change or impact is the Health Justice Partnership (HJP) model. Whilst HJPs are reasonably new in Australia, having emerged in 2012, the international evidence shows HJPs to be successful in alleviating individual financial and psychological distress as well as reducing the burden on health and legal systems. The features of HJPs can be summarised according to four elements: integration, early intervention, systemic change and person-centred (more details can be found in this report).
In essence, an HJP works by embedding legal professionals within a health setting – for example a community legal centre lawyer embedded at a hospital. The idea is for the legal and health services to work collaboratively to address the unmet needs of vulnerable and/or disadvantaged people. Evidence has shown that people with intersecting mental health and legal problems, for example, are unlikely to turn to legal services for solutions. Reasons for this may be due to lack of understanding there is a possible legal solution, fear of perceived cost, and barriers experienced from living with complex life events. Subsequently, vulnerable community members are more likely to make contact and discuss these issues with a health professional than a lawyer.
The HJP model provides a space where professionals from different fields of expertise can work together to best identify and then address problems. Ideally, this more wholistic approach has potential – for reaching those in need, providing tailored assistance in a more timely fashion (or at all), reducing criminal sanctioning, relieving some of the burden on an already strained court system, and improving the mental health and wellbeing of vulnerable individuals.
The multiple and complex needs of women in prison caused by social and structural impediments could be better served by HJP models to help and support women to resolve their complex legal issues rather than sending them to prison.
Building a fully effective HJP takes time and requires resources. No matter how meritorious or well-meaning an initiative, programs need to be devised with a clear program logic to support better outcomes, accompanied by best practice evaluation to assist with refining the model and demonstrate impact.
The Australian Government’s commitment to fund existing Health Justice Partnerships should extend funding to properly establish and evaluate programs and identify best practice in the space.
IS THE HEALTH JUSTICE PARTNERSHIP MODEL THE NEW CURE-ALL TO INJUSTICE?
No. But if the aim is to aspire to a more civil and equitable society, with a fair and responsive criminal justice system, then exploring ideas such as the HJP model is a step in the right direction – one that is more agile and able to identify and address underlying issues.
Overall, the promise of a successful HJP is one example of how a model can operate alongside the pre-existing criminal justice system. Such a model may help stop people coming to court who shouldn’t be there and interrupt some of the injustice within our justice system.
 From the transcript of Four Corners’ “Criminalising Women,” aired 25 February 2019.