He highlighted the Youth and District Courts' neuro-disability jurisprudence development
University of Auckland Law School professor Mark Henaghan and researcher Jean Choi have called for a greater understanding of neurodiversity in the criminal justice system.
According to Henaghan, offenders with neurodiversity face barriers in a justice system that is “designed for those with strong verbal skills”.
“Many offenders, particularly those with neurodiversity, simply don’t have those skills, so their fundamental rights and access to justice are affected”, he said in a University of Auckland press release.
Court processes must take into special consideration youths who have neuro-disability, intellectual disability, mental health conditions, underdeveloped brain development and acquired brain injury, Henaghan explained.
“Often added to this is the use of alcohol and other drugs, which can exacerbate neuro-disabilities, as well as the delayed brain development of youth. All of this has a major effect on limiting the executive functioning of young people before the court, and it can impact outcomes”, he said.
Henaghan emphasised the importance of identifying neurodiversity early in young defendants “so that the appropriate programmes can be put in place to ensure they don’t remain in a system which does not understand them and condemns them to a life of constant misunderstanding and the pain of coming in and out of the criminal justice system”.
He and Choi noted that the lack of neurodiversity understanding in New Zealand's justice system has already led to the wrongful 21-year imprisonment of Teina Pora, who had fetal alcohol spectrum disorder. Henaghan and Choi said that Pora’s case reflected higher courts’ failure to grasp the effect of the disorder on a defendant who was pressured to admit to a crime.
Henaghan and Choi indicated that the Youth Court and District Court have been paving the path for the development of neuro-disability jurisprudence. The District Court has been trialling the Young Adult List, which categorises 18 to 24-year-old defendants into a separate court list on Fridays.
The list aims to understanding the neurological challenges facing young people and determine the appropriate support, treatment and level of accountability used in court. A multidisciplinary team has been tasked with offering wraparound support to young adult offenders, monitoring defendants’ particular needs and characteristics and focusing on features that could restrict thinking, memory and focus, according to Henaghan.
“Plain and accessible language is used by court professionals in and outside the courtroom, and the judiciary allows defendants to build a connection with the judge. Courtroom seating arrangements are revised to enable each defendant to participate, and support is given to defendants throughout the court process”, he said.
The Young Adult List provides access to reports from the Family and Youth Court and is more accommodating of families, which Henaghan said was especially critical for Māori and Pacific families. Nonetheless, he did caution that the extensiveness of the list could lead to court overload and long waiting times.
The pilot’s second phase will involve the introduction of a tool to screen for characteristics that could restrict executive functioning among defendants.
“The Young Adult List shows what’s possible, and why recognition of, and support for, people with neurodiversity is so important in New Zealand’s justice system”, Henaghan said.
Henaghan and Choi recently authored the book International Perspectives of Neuroscience in the Youth Justice Courtroom.
