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Was Teina the tip of the iceberg?

‘What were they thinking?’ is a common question New Zealanders ask about people convicted of crime.

Now, a new discussion paper presents strong evidence of the over-representation of people in the criminal justice system who have had brain injuries, shedding new light on the impact of such injuries and developmental differences on both victims and offenders.

What were they thinking? A discussion paper on brain and behaviour in relation to the justice system in New Zealand, [PDF, 2.5 MB] authored by Chief Science Advisor for the Justice Sector Dr Ian Lambie, has been released by the Office of the Prime Minister’s Chief Science Advisor.

The research shows that a range of brain and behaviour differences, disorders and injuries are prevalent in both youth and adult justice populations, and potentially keep them in that system and hamper rehabilitation.

“A common perception of people in court is that they look ‘shifty’, can’t look you in the eye, mumble a lot and show no remorse or emotion about the harm they’ve been accused of committing,” says Dr Lambie. “Yet many of those ‘in the dock’ suffer from brain injuries that mean they have trouble remembering things, can’t process their situation or even have a basic understanding of the words being used in court.

“The circumstances surrounding the 21-year imprisonment of Teina Pora, affected by Fetal Alcohol Spectrum Disorder and who confessed to a murder he didn’t commit, brought to wide public attention the enormous challenge we face to decipher the difference between those who can figure out right from wrong, and those who simply can’t.

“Identifying a brain injury or developmental difference isn’t about making excuses for bad behaviour, but a better understanding will help us target more effective interventions to those who need it – especially at younger ages.”

Dr Lambie’s report – at a glance:

  • People with brain and behaviour issues are over-represented in the justice system, as both victims and offenders, but having brain and behaviour issues does not mean justice involvement is inevitable;
  • Early intervention is important but even where brain damage is permanent, its negative consequences and impacts do not have to be;
  • Although diagnosis may not be simple, interventions as simple as talking to people in a quiet room will help illuminate difficulties for individuals;
  • More specialist intervention at school age may help a child learn to cope better and avoid getting involved in the justice system as they grow older;
  • Evidence-based interventions for people can be compromised by undetected learning difficulties, to the point where many people struggle to comprehend even simple written rules in prison;
  • Culturally-specific awareness of brain and behaviour difficulties is lacking, with research showing barriers especially for Māori, Pasifika and Asian families to access disability and support services;
  • External influences like alcohol advertising and anti-vaccine myths are barriers to parents (and would-be parents) making decisions in the best interests of their children’s brains and wellbeing;
  • Brain and behaviour issues need evidence-based solutions rather than political ones, because currently resources are overwhelmingly directed to prisons, instead of cost-effective health, education and family support;
  • Social inequity and disadvantages, such as transient families, negatively impact on early diagnosis and treatment;
  • Specialists and support staff, such as communication assistants in courts, can be helpful but there are simply not enough of them;
  • Diagnosis can be difficult because children find strategies to cope and comprehension difficulties may masquerade as other problems, such as difficult behaviour or disengagement.

Key facts: Research on brain and developmental issues in people in the justice system

Traumatic brain injury (TBI) rates are at least four times higher in justice-involved men than non-offending peers; more than one-third have had multiple, severe TBIs.

Almost all women in a NZ prison study had a history of multiple TBIs; at least one-quarter were from being assaulted by a parent or partner.

Fetal Alcohol Spectrum Disorder: Young people with fetal alcohol spectrum disorder were 19 times more likely to be incarcerated than those without. Over one in three people aged 10-18 in Australian youth detention had FASD.

Communication disorders: NZ youth-justice residents (aged 14-17 years) were seven times more likely than matched controls to have hearing loss in one or both ears; 64% met criteria for language impairment.

Dyslexia: Nearly half of 120 people in NZ prisons screened by a literacy expert had significant dyslexia (52% men, 43% women), previously undiagnosed.

ADHD: International research estimates that up to two-thirds of young offenders and 50% of adults in prison would have screened positively for ADHD in childhood.

Intellectual disability (ID): People with ID have an estimated 3 to 7 times greater risk of being victims of crime than people without ID, especially sexual victimisation.

Autism spectrum disorder (ASD):  ASD in the justice system is poorly researched but some ASD features may put people at risk of having difficulties, whether as victims or offenders, through different social behaviour or intense/repetitive interests/actions (e.g., the man with ASD who was accused of “looting” after the Christchurch earthquakes, when he was just acting on his special interest in light-fittings).

Read the discussion paper [PDF, 2.5 MB] on brain and behaviour in relation to the justice system in New Zealand.

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