Court pilot aims to break cycle for young offenders

A new way of handling young adult offenders aims to better support people to help them graduate out of the justice system, rather than being trapped in it for life, Laura Walters reports

The new Young Adult List recognises a high percentage of young adult offenders suffer from neuro-disabilities such as dyslexia, acquired brain injury and foetal-alcohol spectrum disorder, which make them more likely to reoffend and become trapped in the justice system for life.

The initiative, which officially launched with a ceremony at Porirua District Court on Friday, separates those aged 18-25 from others appearing in the adult court.

These young offenders will appear in a separate room, with specialists who would be able to identify any particular health needs or disabilities they might have.

The Young Adult List is similar to the approach used in the country’s Youth Court, and acknowledges that people in this age group do not have fully developed brains.

While these offenders are legally classed as adults at this age, for some, their developmental age is much younger.

Youth Court principal judge Judge John Walker said currently people in this age group were treated as fully functioning adults “when demonstrably they are not”.

These young offenders often came from a background of being exposed to trauma and abuse, and were more likely to have neuro-disabilities, Walker said.

“Those challenges do not expire when they turn 18 and come into the adult court.”

While those aged between 17 and 24 account for 14 percent of the general population, they represent 40 percent of criminal justice apprehensions.

In an earlier paper proposing the development of this approach, Walker said these numbers justified consideration of whether the courts were responding appropriately to this age group.

He said dealing more effectively with this age group could have a substantial effect on criminal justice outcomes.

If the law was to deliver effective interventions to reduce reoffending, then the underlying issues for young adult offenders needed to be identified and addressed, he said.

The risk of ending up in the justice system, and behind bars, was also higher for those with cognitive impairments, brain injuries and neuro-disabilities.

Walker refers to this as a “cocktail of disabilities”.

Research from the United Kingdom found those with learning disabilities made up as much as 4 percent of the general population, but up to 32 percent of young people in custody.

For dyslexia, it was 10 percent in the general population, versus as much as 57 percent of incarcerated young people.

The trend was the same for communication disorders, ADHD, autism spectrum disorder, traumatic brain injury, epilepsy and foetal alcohol syndrome.

Walker said evidence from local experts showed New Zealand likely had similar prevalence rates.

Data shows about 50 percent of all adult offenders in prison are affected by an acquired brain injury.

In a 2005 survey 64 percent of people in prison reported having a head injury, and in 2017 a study of females in prison recorded that 95 percent of females in prison had a history of traumatic brain injury. 

Not only does having an acquired brain injury dramatically increase a person’s chances of coming into contact with the justice system, once connected they were more likely to remain trapped within it, continuing to reoffend. 

In part, this was because the criminal justice system demanded compliance with rules, instructions and processes that people with an acquired brain injury had difficulty following.

Walker pointed out how these statistics interacted with New Zealand’s troubling family violence data.

For the general population, the most common cause of acquired brain injury was a fall or a trip or a slip. But the most common cause of acquired brain injury for people in prison is being subjected to an assault.

Walker said given the country’s concerning family violence statistics, it was not a far jump to conclude family violence lay at the root of many of these brain injuries. About 80 percent of child and youth offenders under the age of 17 grew up with family violence at home.

That family violence, and sexual violence, also often led to trauma, and self-medication. Drugs and alcohol heightened the risk of further cognitive impairment.

A paper released earlier this year by Justice Sector Chief Science Advisor Ian Lambie also found brain behaviour differences, such as dyslexia, acquired brain injuries and foetal alcohol spectrum disorder, were over-represented in the justice system, among both victims and offenders.

More than one third of men in New Zealand prisons had suffered multiple, severe traumatic brain injuries – a rate at least four times higher than the general population.

Lambie questioned whether the justice system was fair for these people, saying the "basic rights to justice may be being denied" for many.

This issue was highlighted in the high-profile case of Teina Pora, a man with foetal alcohol spectrum disorder, who was wrongly convicted of murdering Susan Burdett.

While the over-representation of brain injuries, cognitive disorders and neuro-disabilities was not a new finding, the justice system was yet to effectively respond to this knowledge and put in place ways to make the process fairer for those with these types of impairments.

This Young Adult List initiative aims to provide the support needed to identify these types of issues, and help young people address their offending, before it was too late.

Walker said it was a matter of fairness.

If someone with a neuro-disability or a cognitive disorder, like dyslexia, was given a bail bond form, filled with jargon, they were less likely to understand the form, and more likely to breach their bail conditions.

He added that the research showed people who felt they had been treated respectfully and fairly by authorities, even while being sanctioned by them, were more likely to comply with the law and regard it as legitimate. 

The Young Adult List will take place every Friday in Porirua District Court, with a team of specialists present.

Those appearing will be able to access a range of wrap-around services similar to those available in the Youth Court, including specialist probation officers, adolescent mental health services, alcohol and other drug screening, and links to community support.

Information sharing from the Family Court and Youth Court is also in place.

Those in charge hope the process will identify any disabilities the young adults have and enable them to better understand the court process.

The language used in the court will be simplified and legal jargon avoided, so that all participants, defendants, victims, and whānau, can understand what is happening and be engaged in the process.

The pilot comes as New Zealand broadens its use of alternative and therapeutic courts. The trial will run for a year.

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