When compulsion becomes crime

This week is Responsible Gambling Awareness Week, a chance to reflect on how gambling has embedded itself into our culture, and whether the extent to which some participate in it is causing more harm than we currently realise.

Criminal behaviour is one of those potential harms. For a time, it was even a criteria in clinical tools used to diagnose gambling addiction. Whether a symptom of disorder or a consequence, however, the relationship between problem gambling and offending is not well understood.

Certainly, we see the occasional media story about corporate players who, to fund their high stakes habit, help themselves to funds which did not, strictly speaking, belong to them. We may also hear about more ordinary individuals who – perhaps working as a bookkeeper or in a bank – embezzled from their employer to fund a pokies habit and then were sentenced to jail. When we do hear these stories, most likely we think, ‘serves them right’, assuming it is just a consequence of greed.

What we don’t hear about is what might have driven them to obsessive gambling in the first place, or kept them there when it was no longer much fun – about the way in which mental illness or family violence, for example, can drive people to seek solace in bright, warm environments like gaming venues.

Similarly, we don’t hear about how gambling interacts with other factors which drive people into criminal behaviour, or how it might prevent them from getting out again. For, though it may be the primary cause of crime in only a small number of cases, research indicates that gambling can be a significant cause of re-offending. After all, even if an offender has been rehabilitated through their contact with the justice system – receiving effective treatment for mental illness, substance abuse or gambling addiction itself – gambling debt may await them upon release. Often the quickest way to repay that debt, especially for those accustomed to offending, is to commit another crime.

These are just some of the stories emerging from the Centre for Innovative Justice’s research into the intersection of problem gambling and the criminal justice system. Others concern vulnerable people, particularly women, coerced into offending – much of it drug related – as a way of repaying loan sharks from their particular community, or because their partner has spent their Centrelink benefits to fund a pokies habit and left them with no option but to steal to feed their kids In fact, a disproportionate number of inmates of Victoria’s women’s prison are there for offences that can be traced back to gambling debt, whether theirs or their partner’s – women whose children may then be removed and become vulnerable to crime themselves.

This seems a puzzling situation. Nobody benefits, including the community, if vulnerable people with no prior history of offending end up in prison. After all, we know that there is no better training ground for crime. On a cost-benefit analysis alone, therefore, the income we may be deriving from the gaming industry must be weighed up against the other costs.

The legal system needs to understand this issue better if it is going to respond effectively – including by engaging with growing evidence about changes to the neural pathways that can occur as a result of habitual and compulsive behaviour, and the cycle of anticipation and reward in which people can find themselves trapped. Knowledge about neural pathways should then converge with knowledge about offending pathways – the trajectories which can lead problem gamblers into crime, or in which gambling can entrench, or be entrenched by, other forms of anti-social behaviour.

Every case should be viewed independently, of course, and we should certainly guard against gambling becoming an excuse for crime. Courts rightly look for a nexus between an addiction and offending – but they are not currently supported with adequate information about more recognised forms of addiction. Knowledge is further curtailed by the failure of the system to gather any data about gambling, meaning that other factors which may be at play in offending are not addressed in a holistic way.

Our project is about bringing understanding across disciplines together – not to let anyone off the hook, but to seize the chance that contact with the legal system represents to set people on a different path. This therapeutic intervention can come from lawyers, from services, from the judiciary and ideally from all of the above – but it must be supported with shared knowledge across the board.

Whether it is the primary cause of offending by otherwise well-functioning individuals, or just present in the cocktail of chaos in which so many are caught, contact with the criminal justice system is an opportunity to address problem gambling. We must not let this opportunity go to waste.

Rob Hulls, Director, Centre for Innovative Justice

 

Supermax proposal a path to a dark and expensive place

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This is the full version of the article published in the Herald Sun on 28/9.

Proposals for a ‘mini supermax’ facility aired in this publication smack of a push towards Victoria’s very own ‘Don Dale’.

While safety –  of the community, of staff and of detainees – must be paramount, suggestions by CPSU spokesperson Julian Kennelly that Victoria’s ‘most hardened young offenders’ be housed in a separate, high security facility edge us closer to a draconian response which, evidence shows, simply does not work.

What’s more, the suggestion that this facility be staffed by Corrections Victoria, rather than youth justice personnel, drag us back into a Jurassic era where individuals viewed as children by the law in every other respect start to be treated as adults by the Corrections system.

Throw in a thinly disguised yearning for a greater use of restraint tools, and we see already damaged and vulnerable children fashioned into hardened criminals by virtue of the response meted out in our name.

Juvenile justice staff are a dedicated workforce and are certainly not faced with an easy task. Young people who have broken the law – and have done so to a degree severe enough to bring them into custodial environments – bring with them a tinder box of complex and challenging issues. Poor mental health, drug and alcohol abuse, social isolation, disconnection from education and, frequently, histories of family violence, abuse or neglect – young offenders are often victims of crime themselves.

This does not mean that we should excuse their offence or condone any destructive or violent behaviour. It does not mean that any violence that they use is less terrifying or distressing to those who experience it.

What it does mean, however, is that we should adopt more effective ways to respond to it – recognising, as evidence clearly shows, that the more punitive the response to young offenders, the more likely we are to cement their trajectory into adult (and potentially lifelong) offending.

Accordingly, principles of the Children, Youth and Families Act 2005 (the Act) – the guiding legislation for Victoria’s youth justice system – are to protect and provide support to children, young people and avoid children and young people being detained, where appropriate.

Where children and young people do commit offences sufficient to detain them, the system already has the capacity to transfer and accommodate particular offenders who need to be separated from others for a variety of reasons to a dedicated facility within Malmsbury.

Similarly, children under 15 are separated from older offenders, to minimise the risk that they will be exposed to more entrenched anti-social attitudes or behaviour. What’s more, the encouraging approach at Parkville Youth Justice facility – an approach which prioritises education as a right, rather than a privilege – signals the kind of direction in which all youth justice facilities should be heading.

That said, the system is grappling with an array of challenges. Reforms by the previous Coalition administration have seen a stark rise in the number of young people detained on remand – that is, held in custody before they have been tried and sentenced. This makes for a volatile mix and a further level of complexity with which each facility must grapple as its population continually changes.

This does not mean, however, that we should not hold the line on certain fundamental principles. Any society which views itself as civilized and humane must adopt a smarter, more therapeutic response to youth offending and detention. Blurring the lines between the two systems – funneling a minority of troubled and challenging children into an adult punitive system – will not make us safer as a community.

What it will do is churn out a continuous stream of hardened offenders, fashioned by the very system that was designed to correct their behaviour and costing the taxpayer much more in the process.

For that is the bottom line in all of this. Maintaining vigilance against the ‘Don Dale’ creep is not just about the welfare of the individuals involved, as important as that is. Punitive responses to youth offending; entrenching fear of certain groups within the community; gradually winding back the progress we have made over many years – this is an expensive path.

In other words, simply getting ‘tougher’ does not work. Getting smarter does. Our system should be putting young offenders on a different and constructive path – not one towards a darker and ultimately ineffective place.

As we wait for the findings of the Royal Commission in the Northern Territory, and as every jurisdiction reviews its own youth detention practices, Victoria should be striving to be a beacon of the way in which communities respond to youth offending; striving to maintain the lowest level of youth detention in Australia, but the lowest level of youth re-offending. ‘Super-max’ facilities are the antithesis of this aim and cannot be part of the mix.

 

Rob Hulls
Director
Centre for Innovative Justice
RMIT University

My week shadowing Magistrate Ann Collins

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By Amy Nolan, RMIT JD student.

I recently read an article by American Professor, William P. Quigley entitled ‘Letter to a Law Student,’ where he quoted one of his students who stated that ‘the first thing I lost in law school was the reason I came.’ This quote heavily resonates with me, with the experience of undertaking a law degree diluting my initial career goals and aspirations to practice social justice lawyering. With such a high emphasis on your Grade Point Average and with success defined as gaining employment in a top-tier commercial firm, I questioned my future as a law student during the first-half of my degree. After consulting some wise individuals who insisted that the practice of law could not be more different from the drudgery of studying law, I heavily immersed myself in the practical application of law through various internships and voluntary positions, rediscovering my original motivation for studying law; the desire to help people who are most in need. Having now volunteered and worked in the community legal sector over the past two years my passion and commitment to act with and on behalf of those who are suffering due to societal neglect, social decisions or social structures and institutions has been strengthened.

Many of these opportunities have arisen through the Centre for Innovative Justice (‘CIJ’) including my most recent internship, having the privilege to shadow Her Honour Magistrate Ann Collins, sitting on the Assessment and Referral Court (‘ARC’) list.

What has been described as ‘a little patch of green,’ the ARC list is a progressive example of where therapeutic justice meets the judicial system to provide a positive intervention for offenders coming before the Courts.

By addressing offenders’ mental health, housing and addiction issues among others by establishing a support network around the accused to help rehabilitate them into becoming a functional member of the community, the Court significantly reduces the inappropriate incarceration of seriously ill offenders and provides them with an opportunity for change. This heavily contrasts to the penal approach of the mainstream court system. By addressing the multitude of factors underlying the cause of the offending, recidivism rates significantly depreciate, with ARC presenting a ground-breaking blueprint to help break that cycle.

However, despite having a success rate of around 80 per cent, the ARC List is currently only implemented in the Melbourne Magistrates’ Court, limiting its availability to persons who live within this catchment. Questioning Magistrate Collins on why this model is not implemented in regional Courts, it appears it is simply a matter of funding. Due to the ongoing supportive nature of the ARC List, offenders may be monitored for up to one year on a suspended sentence, appearing before the Magistrate monthly to assess the offenders progress and to provide any further support systems if necessary. Here, politics prevails over common sense, as the long-term reduction in recidivism and subsequently contact with the Courts and prison system clearly outweighs the costs of running the ARC List. Therapeutic justice presents a better financial model, irrespective of the clear societal benefits I observed.

I would strongly encourage all students undertaking a law degree to engage in such opportunities, as they offer an invaluable insight to the true workings of the justice system and may also introduce you to less conventional professional legal pathways.

 

System which entrenches disadvantage is poorly designed

If we were asked to design a legal system from scratch, it’s unlikely that we’d craft it to increase reoffending. In the way that our justice system responds to certain members of the community, however, that’s exactly what we’ve done. From cops, through courts to Corrections, our legal processes are shaped in ways that entrench disadvantage and make it almost impossible for particular people to establish a life beyond the cycle of disadvantage and crime.

No group could be more vulnerable to this design flaw than people with Acquired Brain Injury. As Brain Injury Awareness week rightly highlights, ABI is often known as the ‘hidden disability’, acquired at some point in a person’s life after birth – either through traumatic injury, such as a car collision or violent assault – including family violence, or through chronic problems such as substance abuse.

Manifesting in a range of ways, ABI is one of a range of factors which make people more likely to come into contact with the criminal justice system and less able to comply with its directions once they do. In fact, research commissioned by Corrections several years ago revealed that 44% of men and 33% of women in Victoria’s prisons have an ABI – an extraordinary figure which should tell us that something is terribly wrong under the metaphorical bonnet of the justice system.

Few among the general population, after all, have a hope of understanding the complex processes and language of a courtroom. Few would not be intimidated by an interaction with police or frightened when flung into a cell. When the experience is compounded by cognitive impairment, by potential mental illness, or by the prior experience of victimisation to which we know that people with ABI are vulnerable, then this experience becomes even more alienating.

Yet many police do not ask or even understand what an ABI is; most courts lack flexible or appropriate sentencing options; and our prisons systems – confirmed by last year’s Ombudsman’s report as effectively operating in a disability environment – are ill equipped to respond effectively. As a result, people with ABI, like people with other forms of disability, are cycled in and out of the prison system – unlikely to comply with orders, unable to understand the process, released to homelessness and inadequate support which means they turn to offending to get by.

Governments are recognising that this makes no fiscal or social policy sense but they struggle to grapple with how to begin to undo this mess. This is why our Enabling Justice project – a partnership between the Centre for Innovative Justice and Jesuit Social Services – is using the voices of people who have an ABI and who have experienced the criminal justice system, to design better responses. Their stories – and their participation in a Justice Users Group (JUG), which puts their voices front and centre – help to identify tangible ways to make each interaction more constructive and effective.  A podcast with JUG members Kerry and John can be found here.

Many of these suggestions are specific to people with ABI. As Brain Injury Awareness week also highlights, however, only a small proportion of ABI is identified. This means that we have to design the entire system differently – assuming that, if someone has come into contact with the criminal justice system, they are potentially already vulnerable.

Yes, there are a small number of hardened offenders in our prison for whom there seems no other option but incarceration. The majority of those in our prisons, however, are likely to have come from one of only a few Victorian postcodes and a background of intergenerational unemployment. They are unlikely to have completed their education. They are likely to have a substance abuse problem or mental illness. They are likely to be homeless. If they are a woman they are likely to have experienced family violence or childhood sexual assault. They may have a gambling addiction and be coerced into crime to pay off their debts. What’s more, by coming into contact with the criminal justice system, their situation is likely to have been made significantly worse.

Given that we know this, we have to design a system that takes this knowledge into account. Doing so is not about making excuses or letting people off the hook. It is about recognising that the community is losing money from a system which, in far too many cases, cements the commission of further crime, rather than prevents it.

It is also about recognising that people with ABI need justice to function as a positive, rather than a negative, intervention in their lives – treating them with the dignity and offering them the hope that the rest of the community rightly expects.

Rob Hulls                                                                  Julie Edwards
Director                                                                     CEO
Centre for Innovative Justice                             Jesuit Social Services