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Alternatives to Imprisonment

Failure of Imprisonment

NSW Parliamentary Committee on Prisons

This cross-party committee found that prison policy should ‘be part of an integrated approach to reducing crime and premised on the principle that imprisonment should only be a measure of last resort’. While the committee was not unanimous on the need for a new jail at Windsor, it did agree that:
‘the decision to build a new women’s facility should be subject to more rigorous scrutiny in light of the possible alternatives, the recent drug court results and the likely and actual impact of the Crimes (SENTENCING PROCEDURE) Act 1999. Such scrutiny should include an analysis of the cost, both capital and recurrent, of the new facilities against effective alternative means of dealing with the increased population.’ (7.45)

‘This cost-benefit analysis should then be used by the Government to determine whether the building of a new jail should proceed. The committee recommended that the review process should include independent persons such as: the Inspector General for Prisons, representatives of Treasury, groups representing women, and at least one academic with [relevant] research experience’ (7.46).

The committee was unanimous that:

"The Government should be working towards a reduction in the prisoner population and should be taking all reasonable measures to achieve that end. The Committee considers that a reduction is achievable through such measures as the recommendations contained in this report, particularly those relating to the establishment of bail hostels, probation hostels, drug treatment programs in the community and the expansion of transitional centres."

There were hopes that the drug court program, the court liaison program (designed to divert offenders with a mental illness) and the recent changes to sentencing law (requiring reasons for small prison sentences) would help in this process (7.48). To reinforce a commitment to reducing prison numbers, the Committee called for a moratorium on the number of prison beds for women: ‘The Committee considers that there should be a freeze on the number of prison beds for remand and sentenced female inmates, and that any new jail should only replace existing prisoner accommodation.’ (7.50-51).

This was designed to prevent the expansion of the prison system.

NSW Parliament (2000) Legislative Council Select Committee on the Increase in Prisoner Population, Sydney.

Rand Corp on Mandatory Minimums

Studies in the US have shown that mandatory minimum sentences don’t work. A 1997 study by the Rand Corporation’s Drug Policy Research Centre demonstrated that mandatory minimum sentences were ‘throwing away taxpayers’ money’. Prison was not only an ineffective sanction against the drug trade, it was by far the most expensive. The think tank study showed that, if $1 million MORE in public funds were spent on each drug strategy over 15 years,

  1.  mandatory minimums would reduce national cocaine consumption by 13 kilograms
  2.  conventional law enforcement would cut it by 27 kilograms, and
  3.  treatment of heavy drug users would slash it by more than 100 kilograms

Conventional law enforcement (such as arrests, confiscations, prosecutions and standard prison terms) would eliminate 70% more crimes than mandatory minimums (which impose much higher average sentences).

However, treatment of heavy users would reduce about 10 times more serious crime against people and property than conventional law enforcement and 15 times more than mandatory minimums, even though an average of only 13% of those receiving treatment kick their drug habits. ‘Mandatory sentences are counterproductive ... they are more harmful to the community than helpful’, the study group said.

 Jonathan P. Caulkins, C. Peter Rydell, William Schwabe & James R. Chisea (1997) Mandatory Minimum Drug Sentences: throwing away the key or the taxpayers money?, Rand Documents, https://www.rand.org/

Mandatory Minimum Drug Sentences: https://www.rand.org/pubs/monograph_reports/MR827.html

The Combined Churches Report

An inter-church committee reviewed and reinforced an earlier report by the Churches, called Prison: The Last Resort (1988). It called for a bipartisan approach to prison policy, provided it addresses the main issues. The committee recommended (7) that overcrowding be reduced and other conditions be addressed. It also called for (8) the immediate implementation of measures that reduce the numbers of Aboriginal people in prison as referred to by the Royal Commission into Aboriginal Deaths in Custody.

Inter Church Steering Committee on Prison Reform (1994) Prison - not yet the last resort: a review of the NSW penal system.

The Combined Churches Report

An inter-church committee reviewed and reinforced an earlier report by the Churches, called Prison: The Last Resort (1988). It called for a bipartisan approach to prison policy, provided it addresses the main issues. The committee recommended (7) that overcrowding be reduced and other conditions be addressed. It also called for (8) the immediate implementation of measures that reduce the numbers of Aboriginal people in prison as referred to by the Royal Commission into Aboriginal Deaths in Custody.

Inter Church Steering Committee on Prison Reform (1994) Prison - not yet the last resort: a review of the NSW penal system.

Aboriginal Deaths in Custody Royal Commission

The principal finding of this Royal Commission was that Aboriginal people died in custody in large numbers because they were in jail in such large numbers (over-represented by a factor of 10-20).

There were many recommendations designed to reduce the numbers of Aboriginal people in custody, including:

  1. A series of recommendations (79-91) designed for diversion from police custody, including police practice of arrest being the sanction of last resort (87) and recognising in practice the entitlement to bail (89).
  2. A series of recommendations (92-121) to hold imprisonment as a last resort, including legislation to enforce prison as the last resort.
  3. A series of recommendations (62, 234-245) called Breaking the cycle: Aboriginal Youth, which was aimed at keeping young people out of formal legal processes and institutions (consistent with the Convention on the Rights of the Child 1989).

Note: that when jail numbers as a whole rise, the number of Aboriginal prisoners (being an overrepresented group) rose even more.

Elliott Johnston (1991) National Report: Overview and Recommendations, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra

NSW Women in Prison Task Force

This committee, chaired by Ann Symonds MLC, made 287 recommendations related to women in prison. The report documented the women’s prison population at that time, and affirmed Nagle’s recommendation that prison be used as a sanction of last resort. It noted that 78% of women had a drug or alcohol related addiction, and that 84% had been in prison before. It noted that women in NSW were far more likely than those from most other states (eg. Victoria) to be:

  1.  held in prison on remand
  2.  held on remand for more than three months
  3.  receiving longer prison sentences
  4.  imprisoned for drug possession or use

At a time when the NSW women’s prison population was only around 150, the report urged the Government to take immediate action to reduce the imprisonment rate of women in this state (p.40). In the mid 1990s, Corrective Services took up one of the Task Force’s recommendations, by creating the first Transitional Centre for Women (at Parramatta) - a minimum security facility which allowed women to keep their children, and to work in the community, much like a half-way house. The Transitional Centre is one of NSW Corrective Services’ few success stories in recent times.

NSW Women in Prison Task Force (1985) NSW Parliament, Sydney. 

Report of the N.S.W. Women in Prison Task Force Download Here

Nagle Royal Commission

The Nagle Royal Commission into NSW Prisons came after agitation by prisoners and campaigns by many, including the late Labor MP George Petersen. The report by Justice John Nagle proposed and led to these changes:

  1. A new ethos which held that prison was a poor sanction in terms of its stated aims, and was to be a last resort of sentencing.
    1. Exposure and elimination of systematic bashings, especially at Grafton Jail.
    2. The immediate closure of Katingal (which Nagle called an electronic zoo).
    3. A general upgrading of prison conditions, including the introduction of contact visits and phone calls, and recognition of some other minimum conditions.
    4. A recognition that prisoners should be listened to, and have committees as well as access to complaints mechanisms.
  2. A new regime under Commissioner Tony Vinson (1979-81), which would help bring about many of the reforms proposed by Nagle. 

The principal policy recommendation of the Nagle report (No. 7) was that ‘loss of liberty is the extent of punishment… a prisoner should be treated justly and humanely ... [and] Imprisonment should be a last resort and those imprisoned should be kept in the lowest appropriate security’.

The Nagle Report in Appendix H has a brief history of the NSW prison system and prison policy from 1788-1967, apart from its own review of events of the 1970.

 J. F. Nagle (1978) Report of the Royal Commission into New South Wales Prisons, Vol 1, 2 & 3, Government Printer, Sydney, April.

Report of the Royal Commission into New South Wales Prisons Download Here

Prison Inquiry

EACH INQUIRY SAYS THE SAME THING OVER MANY YEARS...

Detailed inquiries into the NSW prison system and supporting studies say the same thing with almost monotonous regularity; prison does not work in terms of its stated objectives, and the use of imprisonment as a sentence should be scaled down. Despite these findings and the consideration of viable, sustainable alternatives to imprisonment, the government continues to pursue policing, sentencing and prison policies, which have led to inflation of the prison population and overcrowding of jails. History shows that every new jail built will be filled, and overcrowding will quickly reoccur. E.g. The remand centre at Silverwater, the largest prison in NSW, was filled within three months of opening.

Listed below are summaries of the main findings of some important prison inquiries. In addition, here are some relevant issues in prison reform:

  1. There is no technical policy fix to the problems of policing, sentencing and prisoners. Human solutions must be looked for and found.
  2. Sentencing policy must take account of Australia’s human rights commitments, which includes a commitment to the essential aim of the prison as ‘reformation and social rehabilitation’ (ICCPR Article 10(3)). Bail law must also be consistent with Australia’s human rights commitments and this would involve removing the presumptions against bail for several categories of offence (s.8A and s.9 of the Bail Act1978).
  3. The collective wisdom of all past inquiries and studies must be respected. Prison has failed its stated objectives, so alternative sanctions must be developed and the use of prisons must be scaled back. Prison must not be regarded as synonymous with sentencing.
  4. Prison sentences, in general and in specific cases, must therefore be justified by some real argument of public policy, and not assumed as the default penalty. The question must therefore be, not ‘what is the alternative to prison?’, but ‘why commit to prison?’.
  5. The building of new prisons is entirely regressive and can only expand the total prisoner population, at great financial and social cost. Prison numbers must be capped, and then reduced. There must be a moratorium on the building of any new prison, and a ceiling must be placed on the Corrective Services budget. No real reform requires any greater financial commitment.
  6. A declining prison population is the only acceptable goal. Therefore, prison policy must be integrated with policing and sentencing policy. This in turn requires a commitment to intervene in the law and order culture.
  7. The decision to build a new women’s facility should be subject to more rigorous scrutiny in light of the possible alternatives.
  8. Some form of discountable sentence (e.g. by remissions) must replace the rigid formula of the Sentencing Act 1989. The Act is problematic because no sentencing judge or magistrate has full wisdom or foresight, prison managers value remissions, and incentives for prisoners coincide with the only sensible public policy, which is to minimise the use of prison.
  9. Community corrections, and sanctions such as community service orders that encourage offender responsibility rather than repress it, must be developed and expanded.
  10. Policing practices have an enormous impact on the prison population, and most public policing is aimed at young people. Tolerant policing is required in its own right, but also as a means of finding human solutions and minimising formal legal interventions.
  11. Because the Aboriginal population is overrepresented in prisons, the general reduction of prison numbers is of crucial importance to decrease Aboriginal imprisonment rates, and deaths in custody.

Penal Abolition

LATEST NEWS
ICOPA (International Conference on Penal Abolition)

OVERVIEW
The Penal Abolition movement rejects the use of incarceration as a form of social control and community maintenance. Penal abolitionists challenge the current use of policing, courts and prisons to control populations as a means of solving social problems. The movement fights against the overlapping interests of government and industry that support surveillance and increased state power.

Penal abolitionists highlight that imprisonment does not change the conditions that lead to criminal behaviour. Furthermore, the isolation of offenders in correctional institutions can worsen their health outcomes, sever their familial and community ties and reduce their capacity to attain further employment. In addition, prison overcrowding in Australia threatens to exacerbate prisoners’ mental illnesses, increase rates of violence, self-harm and suicide in custody and augment recidivism rates.

Penal abolitionists stress that the current system fails to reduce crime or to promote community safety. They contend that the penal system discriminates on the basis of ethnicity, indigeneity and social class, and exploits the underprivileged in the pursuit of profit and political power. While penal abolitionists acknowledge that the justice system should not be abandoned altogether, they strongly challenge the misconception that punishment is the only effective or moral response to anti-social behaviour.

In short, the penal abolition movement believes that state resources used to run jails would be better directed at addressing issues that foster criminogenic environments, including poverty, educational disadvantage and community disengagement. It proposes long term goals to stop the construction of new prisons, promote restorative justice, end solitary confinement and the death penalty and develop effective crime prevention strategies.

Penal Abolition Paper Analysis Download here

Major Issues

Crime perception

ICOPA

Former Inspector attacks prison building

 
 
 

Over the coming four years, $3.8 billion will be spent by Correctional Services NSW to build new prisons. The prison-boom policy, which would build 7000 additional prison beds at a cost of $1 millions per cell, has been driven by media reports that, while aiming to inform, serve the purpose of increasing the feelings of personal insecurity and heightening the fear of becoming a crime victim, creating a culture of fear that is leveraged by the media to gain ratings, and by politicians to garner public support. This policy has been categorized by Previous Inspector of Custodial Services, John Paget1, as an “indefensible” policy not supported by facts, when he states that, in deciding the expansion of the NSW prison system “Sound bites trumped sound science, again”2

Paget’s statement is reasonable as, with crimes rate falling as they have since 20013the required prison beds would be expected to decrease accordingly, but as has been reported widely, the number of incarcerated individuals continues to reach new highs periodically “largely due to more people being refused bail, more people receiving prison terms for minor crimes and more people staying in for longer”4. This situation clearly points to a disconnect where, while having fewer offenders, new and existing ones are being treated more harshly, consistent with what the director of the NSW Bureau of Crime Statistics and Research, Don Weatherburn, has called a discourse of being “tough on crime”5.A “tough on crime” discourse isn’t new, but it is a logical fallacy in two accounts: firstly, evidence points to longer incarceration and more astringentpolicies as having a negative effect in the communities6and secondly, its seeming strengthening by the construction of more corrective facilities is not justified by the current crime rates or measurable security needs of NSW7; this begs the question of why are $3.8 billion dollars of tax payer money being directed towards the construction of prisons when they are not only the least effective alternative to combating crime8, and directly affect the enactment of projects that are conducive to development9but are also entirely unnecessary? And furthermore, why is the public opinion’s response to this misappropriation not strongly negative? The answer lies in the media.

Mass communication has been widely documented to have a significant effect on public opinion. Research in the matter has shown that beliefs, opinions and attitudes about crime are shaped by news and entertainment and reflect self-appraisals of personal security, which are tied to attitudes about criminal offenders10. Not only that, but a 2007 study11found that the way in which a message is conveyed is more influential in shaping people’s opinion that the actual message, thus the media’s “framing” becomes the main referent from which publics obtain information about their personal safety. In fact, a study demonstrated that a community’s perception of their safety was affected to perceive a crime wave by an increase in news coverage of crime while actual rates remained unchanged12. This is relevant as it is estimated that up to 35% of news reports broadcasted daily are about crime13and several studies have reported that crime levels as reported in media do not correspond with levels actually experienced in daily life14. In fact a study found that “while 1% of crimes know to police involve murder, over 26% of crime news stories feature a homicide case. Additionally while 47% of crimes reported to police are nonviolent only 4% of crime news stories depict instances of non-violent crime”15. With crime also presenting above average recall rates16crime reporting can create a severely distorted view of self-security resulting in avoidance behaviour and increased fear of becoming a victim of violence17. Particular to Australia, research by Indermaur and Roberts (2007) has shown that the public overestimates the level of violent crime and underestimates the current severity of sentences with over 80% of respondents believing harsher sentences should be given to offenders18. This is then perpetuated when policy makers pursue actions, which are done in favour of votes and public opinion over rational, evidence-based legislating. In the end this kind of policy work creates more problems than it solves as institutionalizes fear, and provides a low cost-value equation for constituencies19.

The media impact is evident in the proposed $3.8 billion expenditure for the building of new jails. Even with the crime rates falling, Australians still feel crime has increased as demonstrated by the latest Australian Survey of Social Attitudes:

“The results of the survey show that many Australians considercrime-related issues to be of importance, a large majority would likemore spent on police and law enforcement and that television, radioand newspapers are the major source of information about crime andjustice for most people. At the same time, crime is believed to beincreasing, violence is thought to be widespread and offenders areseen as being treated lightly by the court system.”20

The survey also shows that while the constituency has little or no confidence in the prison system21, there is still a majority of Australians that feel harsher sentencing laws are needed22to curb crime rates, which would justify spending $1million dollars of taxpayer money per cell in the building of new prisons. On top of this, it has been suggested that newly built prisons are a device that allows policy makers to appear to reinforce the “tough on crime” discourse through media optics23.

However, policy makers should not be held to the same standards as public opinion. The availability of objective information regarding the effectiveness of the prison system and other alternatives such as mentoring, restorative justice, or others, should mean the public’s best interest is served with accountability and not based on the distorted sense of security created by television, radio and newspapers. As long as uneducated news shape the public opinion and this in turn the policies being passed, spending $3.8 billions on the construction of new, pointless prisons will be easily justifiable by policy makers who leverage information sources to do a disservice to their communities.

Bibliography

1Olding, Rachel,Prison push an ‘expensive’ failure. The Sydney Morning Herald, September 5th, 2016.

2Paget, John.More NSW prisons evidence free public policy. Australian Policy Online. Retrieved September 5th, 2016 from http://apo.org.au/node/65416

3BOCSAR. NSW Recorded Crime June 2106. Retrieved September 5thfrom www.bocsar.nsw.gov.au/Documents/RCS-Quarterly/NSW_Recorded_Crime_June_2016.pdf

4Olding, Rachel, Call for complete rethink as prison population, recidivism explode. The Sydney Morning Herald. February 19, 2016. Retrieved September 5th, 2016 from http://www.smh.com.au/nsw/recidivism-20160218-gmxmog.html

5Olding, Rachel (2016)BOCSAR Crime stats boss Don Weatherburn calls for lighter prison sentences. The Sydney Morning Herald. February 17,2016. Retrieved September 5th, 2016 fromhttp://www.smh.com.au/nsw/weatherburn-comes-out-swinging-20160216-gmvavn.html

6Paget, John.More NSW prisons evidence free public policy. Australian Policy Online. Retrieved September 5th, 2016 from http://apo.org.au/node/65416

7 Ibid

8Ibid

9Ibid

10Indermar, David & Lynn Roberts. (2007) Perceptions of Crime and Justice. Australian Survey of Social Attitudes. Retrieved September 5thfrom http://aussa.anu.edu.au/questionnaires/questionnaireB2007.pdf

11Scheufele, Dietram and Tewksbury, David.Framing, Agenda Setting and Priming: The evolution of three media effects models. Journal of Communication (57) 2007, 9-20.

12Graber, D. 1980. Crime News and the Public. New York: Praeger.

13Altheide, D.L. (2002)Creating Fear; News and the Construction of Crisis, (Aldine De Gruyter; New York).

14Mirka Smolej & Janne Kivivuori (2006) The Relation Between Crime News and Fear of Violence, Journal of Scandinavian Studies in Criminology and Crime Prevention, 7:2, 211-227, DOI: 10.1080/14043850601002429

15Peg O'Connor (2002). Oppression and Responsibility: A Wittgensteinian Approach to Social Practices and Moral Theory. Penn State University Press.

16Graber, D. 1980. Crime News and the Public. New York: Praeger.

17Mirka Smolej & Janne Kivivuori (2006) The Relation Between Crime News and Fear of Violence, Journal of Scandinavian Studies in Criminology and Crime Prevention, 7:2, 211-227, DOI: 10.1080/14043850601002429

18Indermar, David & Lynn Roberts. (2007) Perceptions of Crime and Justice. Australian Survey of Social Attitudes. Retrieved September 5thfrom http://aussa.anu.edu.au/questionnaires/questionnaireB2007.pdf

19Furedi, Frank (2007). The only thing we have to fear is the ‘culture of fear’ itself. Spiked. Retrieved September 5thfromhttp://www.spikedonline.com/newsite/article/3053#.V7qG_xh97AQ

20Indermar, David & Lynn Roberts. (2007) Perceptions of Crime and Justice. Australian Survey of Social Attitudes. Retrieved September 5thfrom http://aussa.anu.edu.au/questionnaires/questionnaireB2007.pdf

21as above

22as above

23Olding, Rachel (2016)BOCSAR Crime stats boss Don Weatherburn calls for lighter prison sentences. The Sydney Morning Herald. February 17,2016. Retrieved September 5th, 2016 fromhttp://www.smh.com.au/nsw/weatherburn-comes-out-swinging-20160216-gmvavn.html

 
 
 
 

Prisons as part of the Community

Analysis of the conflicting policies of social exclusion and community building, giving examples of how they apply in practice. This is a key to JA's work. Presented to the NSW Legislative Council 2009 as part of the campaign against the corporate privatisation for prisons. download

 

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Prisons cause crime

The Paradox in Incarceration and Crime
Directed Research Report Prepared for Justice Action download pdf
January 2008
Submitted by C. Daoust
University of Ottawa, Faculty of Law

Prison is a recruitment centre for the army of crime.  That is what it achieves.  For 200 years
everybody has been saying, ‘Prisons are failing: all they do is produce new criminals.’  I would say
on the other hand, ‘They are a success, since that is what has been asked of them.’         
~ Michael Foucault ~

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