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Why criminal justice reforms must consider ADHD

26 Apr 2024

| Author: Kate MacKay

“Getting tough on crime” was a central part of the government’s election campaign, winning it scores of votes during what appeared to be an unending crime wave.

In response, the government has proposed a series of reforms predominantly aimed at the youth justice system to reduce crime and recidivism rates. However, these reforms fail to consider a major issue that has remained largely invisible in public discourse – ADHD. So, what is ADHD, how is it related to criminal offending and why should the government care?

Attention Deficit Hyperactivity Disorder (ADHD) is a neurodevelopmental condition affecting approximately 3% to 5% of the population. As the name suggests, its core symptoms include inattention and impulsive, often hyperactive, thoughts and behaviour. ADHDers also often struggle with executive functioning, including time management, self-control and forward planning.

Getting an ADHD diagnosis can be a difficult and costly process. In New Zealand, ADHD can be diagnosed only by a paediatrician or psychiatrist. Diagnosis most commonly happens in the private health system, where ADHDers face months-long waitlists and assessment costs of anywhere from $500 to $1500 upfront. However, pervasive stereotypes mean girls and women, non-European ethnic groups and those with more internalised ADHD symptoms are often not picked up or are misdiagnosed.

Accessing treatment can be even harder. Best-practice treatment includes stimulant medication alongside counselling or therapy and lifestyle changes. However, stimulants are Class B drugs in New Zealand, meaning they can be prescribed only under a special authority that must be reviewed every two years in a costly follow-up appointment. Further, specialist ADHD counsellors and psychologists can be extremely hard to find and very expensive, particularly given the frequent and long-term nature of appointments.


ADHD and criminal offending

The rates of ADHDers in prison are staggering. Global estimates put the rate at anywhere between 25% to 55% in the adult prison population and 30% to 66% in the youth justice population. Such variations can be attributed to the difficulties of diagnosing ADHD in the first place, particularly among prisoners.

There is a multitude of reasons that can help explain why such an overwhelming overrepresentation exists. Firstly, ADHDers can struggle with poor impulse control and behavioural regulation, which can lead to the commission of more impulsive and/or opportunistic crimes such as burglary and theft. And ADHDers often struggle with forward planning, which can result in an impaired ability to adequately consider the long-term consequences of their immediate actions.

Second, ADHDers are much more likely to have at least one comorbid disorder. Up to 96% of ADHD prisoners have a psychiatric comorbidity, including substance use disorder (SUD) and conduct disorder (CD). The latter two are particularly common, with some estimates putting comorbid SUD at 61% and comorbid CD at 50% amongst ADHD prisoners. The links between SUD and CD and violent offending are well-established. SUD is particularly notable as many ADHDers turn to illicit substances to self-medicate, especially in the face of such inaccessible and unaffordable treatment options.

Thirdly, ADHDers can struggle in a typical classroom environment without proper accommodations, leading to lower educational achievement and future employment opportunities. Further, ADHDers are more likely to be suspended from school, and suspensions are a strong predictor of later criminal offending. Combined with the fact that there is a significant genetic component to ADHD, it is no wonder that ADHDers can become stuck in intergenerational cycles of poor social outcomes and, as such, be much more predisposed to criminal offending.


ADHD and recidivism

These factors all help to explain why ADHDers are so much more likely to offend in the first place. However, once they have offended, ADHDers are estimated to re-offend 2.5 times faster and are much more likely to be caught by police due to the largely impulsive nature of their crimes. This cycle is exacerbated by the fact that offenders are highly unlikely to receive any treatment for their ADHD while in prison. This comes as no surprise, given how hard it is for a nonoffending ADHDer to receive ADHD diagnosis and care in the community. There is little awareness of, and training around, ADHD that is available to those working throughout the criminal justice system, and minimal screening measures to identify ADHD.

Emerging studies have shown promising results that indicate it does not have to be this way. One such study showed recidivism could be reduced from 62% to 12% by treating ADHDers with medication and putting in place the appropriate supports. Another study found a significant reduction in criminality rates during periods of being treated by ADHD medication, with a reduction of 32% for men and 41% for women.


Government reforms

All this indicates a clear need for the government to address ADHD in its justice reforms to genuinely reduce criminal offending and recidivism. However, its proposed reforms appear to actively work against achieving this. They focus mainly on the youth justice system and include the introduction of military-style boot camps, a youth justice demerit point system and building a new 200-bed youth justice facility.

Not only do these proposals lack evidential backing, but they are also fundamentally incompatible with the needs of ADHDers, a glaring oversight when up to two-thirds of young offenders have the condition.

Prime Minister Christopher Luxon says these boot camps would provide “discipline” to young offenders who “need to be reprogrammed and redirected very strongly [and] be held to account”. The proposed demerit points bill uses similar language in stating its purpose of “penalis[ing]” and “increasing accountability”.

Yet, ADHD is a neurodevelopmental condition. It is not a problem to be fixed. It is not a disorder to be cured. It is not something that can be disciplined out of an offender. People with ADHD do not need to be “reprogrammed”. They need support, compassion and affordable and easy access to bestpractice diagnosis and treatment.

Further, these reforms are expensive. The boot camp policy is set to cost $25 million annually and the 200-bed youth justice facility would cost $500m to build and $44m in annual operating costs. This money should be redirected towards programs to identify, diagnose and treat ADHD as early as possible, which has been proven to significantly reduce offending and recidivism rates. It would also improve social outcomes, helping ADHDers attain higher levels of educational achievement and better, more consistent employment. The economic cost of Australia’s failure to adequately address ADHD was an eye-watering A$20.5 billion in 2019 alone, including A$307m from crime and A$10.2b in lost productivity.

If the government wants to get tough on crime, it must get tough on addressing ADHD. The clear connection between ADHD and increased offending means ADHD-friendly policies are a necessity if the government wants to follow through on reducing crime and recidivism. These reforms must aim to address ADHD at its core instead of punishing the behaviour that arises from the failure to adequately identify and treat it. That does not mean ADHD is an excuse. Instead, it is an explanation that warrants a closer look and the implementation of comprehensive, evidence-based reforms. ■


Kate MacKay is a neurodiverse law student and the EJP representative on The Law Association’s Mental Health and Disability Law committee

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