Failure of Imprisonment:

Each Inquiry says the same thing... 

A number of detailed inquiries have been held into the NSW prison system. These inquiries have taken evidence from a wide range of people, and have updated our knowledge and understandings of prison systems generally and the NSW system in particular. Combined with studies elsewhere, they say the same thing with almost monotonous regularity – prison does not work in terms of its stated objectives, and the use of prison should be scaled down.

Despite these findings, Governments have often pursued policing, sentencing and prison policies which have expanded the prison population. This has led to overcrowding, which can be met by either (i) sentencing and policing reform OR (ii) building new jails. Yet history has shown that every new jail built will be filled, and overcrowding will quickly reoccur. The state’s largest prison, the remand centre at Silverwater, was filled within three months of opening, in the late 1990s. See our paper "Prisons cause crime"

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 ‘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 include a commitment to the “essential” aim of the prison being “reformation and social rehabilitation” (ICCPR Article 10(3)). Bail law must also be made consistent with Australia’s human rights commitments – this would involve removing the presumptions against bail for several categories of offence (s.8A and s.9 of the Bail Act 1978).

3. The collective wisdom of all past inquiries and studies must be respected – prison has failed its stated objectives, so we must develop alternative sanctions and scale back the use of prisons. 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 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, 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, but this means that prison policy must be integrated with police and sentencing policy – this in turn requires a commitment to intervene in and change the ‘law and order’ culture.

“the decision to build a new women’s facility should be subject to more rigorous scrutiny in light of the possible alternatives”

7. Some form of discountable sentence (eg. by remissions) must replace the rigid formula of the Sentencing Act 1989 – 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.

8. Community corrections, and sanctions such as community service orders that encourage offender responsibility rather than repress it, must be developed and expanded.

9. 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.

10. Because the over represented minority of Aboriginal prisoners are also over represented in any increase in policing rates or sentencing to prison rates, the general reduction of prison numbers is of crucial importance in reducing Aboriginal imprisonment rates, and in reducing deaths in custody.

Nagle Royal Commission, 1978
The Nagle Royal Commission into NSW Prisons (1976-78) came after agitation by prisoners and campaigns by many, including by the late Labor MP George Petersen. The report by Justice John Nagle proposed and led to these changes:
• 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
• exposure and elimination of systematic bashings, especially at Grafton Jail
• the immediate closure of Katingal (which Nagle called an ‘electronic zoo’)
• a general upgrading of prison conditions, including the introduction of contact visits and phone calls, and recognition of some other minimum conditions
• a recognition that prisoners should be listened to, and have committees as well as access to complaints mechanisms
• 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 1970s
J. F. Nagle (1978) Report of the Royal Commission into New South Wales Prisons, Vol 1, 2 & 3, Government Printer, Sydney, April

NSW Women in Prison Task Force,
1985 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 the 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 (i) held in prison on remand (ii) to be held on remand for more than three months (iii) to receive longer prison sentences, and (iv) to be 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 this 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

Aboriginal Deaths in Custody Royal Commission, 1987-1991
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:
• a whole 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) a series of recommendations (92-121) to hold “imprisonment as a last resort”, including legislation to enforce prison as the “last resort” (92), the development of non-custodial measures (94, 96, 101, 102, 109, 111, 112, 113, 114, 116, 117, 118)
• a series of recommendations (62, 234-245) called “Breaking the cycle: Aboriginal youth”, principally aimed at (consistent with the Convention on the Rights of the Child 1989) keeping young people out of formal legal processes and institutions

Note: that when jail numbers as a whole rise, the number of Aboriginal prisoners (being an over represented group) rise even more. Elliott Johnston (1991) National Report: Overview and Recommendations, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra

The Combined Churches report, 1994
An inter-church committee reviewed and reinforced a earlier (1988) report by the Churches, called Prison: The Last Resort. It called for a bipartisan approach to prison policy, “provided it addresses the main issues”. Re Mulawa, 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

“Mandatory sentences are counter productive... they are more harmful to the community than helpful”

Sydney Rand Corp on Mandatory Minimums, 1997
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, (i) mandatory minimums would reduce national cocaine consumption by 13 kilograms, (ii) conventional law enforcement would cut it by 27 kilograms, and (iii) treatment of heavy drug users would slash it by more than 100 kilograms. The cost-benefit implications of crime reduction would be as follows: conventional law enforcement (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, www.rand.org

NSW Parliamentary Committee on Prisons, 2000
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

Further References: Roman Tomasic & Ian Dobinson (1979) The Failure of Imprisonment

Vivienne Stern (1998) Imprisonment in the World: a Sin Against the Future.

Written by Tim Anderson for Stop the Womens Jail Anti-Prisons Resource Kit Published June 2001 by Justice Action Ph: (02) 9281 5100


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