Alternative Pathways to Address our Growing incarceration Rates : Leadership Discussion Emeritus Professor David Brown Law Faculty, UNSW The Limited Benefit.

Alternative Pathways to Address our Growing incarceration Rates : Leadership Discussion

Emeritus Professor David BrownLaw Faculty, UNSW

The Limited Benefit of prison in Controlling Crime

Introduction• Penal ‘crisis’ –or at least watershed moment • Political context –the costly consequences of populist law

and order politics becoming more apparent -GFC• The emergence of ‘justice reinvestment’ –USA/UK/Aust• Increased interest in research –including relationship

between incarceration rates and crime rates• Key factors affecting crime rates• Reformulating the key question • Confronting limitations of justice reinvestment• Conclusion –a reform program for government –reduce

prison population through sentencing, bail and parole changes –invest in recidivism and crime reducing programs

Penal crisis or watershedPenal watershed manifest in:– Increasing imprisonment rates– Escalating costs– High recidivism rates– Increasing questioning of ‘value’ of increased prison

expenditure cf alternatives– Increasing recognition of limited benefits of imprisonment

in reducing crime and enhancing public safety– Increasing recognition of criminogenic effects of

imprisonment– Paucity of research base –reliance on assumption and

populism –hostages to politics of staying in government– ‘Sorcerers Apprentice’ effect

Tonry, ‘The costly consequences of populist posturing: ASBOs, victims, ‘rebalancing’ and diminution in support for civil

liberties’, Punishment and Society (2010) 12(4)

• “In its effort to win electoral support by attacking the courts and other criminal justice agencies, loudly seeking to rebalance the criminal justice system in favour of the victim, and weakening civil liberties and protections against wrongful convictions, the Labour government of Tony Blair played dangerous games. There is ample evidence that tensions between the young and the old, and between the well-off and the dispossessed, were exacerbated. By repeatedly talking and acting as if crime had reached crisis proportions and required radical responses, at a time when crime rates were falling, the Government increased public anxieties and fears. By repeatedly insisting that the criminal justice system was not working satisfactorily, the Government undermined faith in legal institutions. By insisting that traditional procedural rights and protections are unimportant and can be cut back without loss of anything important, public understanding and support for fundamental ideas about liberty, fairness and justice were undermined.”

International imprisonment rates• United States 738 per 100,000 pop• Russia 611• South Africa 335• New Zealand 186• United Kingdom 148• Australia 126• China 118• Canada 107• Italy 104• Germany 95• France 85• Sweden 82• Norway 66• Japan 62• Indonesia 45• India 30Source: Walmsley, World Prison Population List, 7th edn. : www.prisonstudies.org

Comparative imprisonment ratesAustralian imprisonment rates 100,000 adults in 2009• NT 657.6• WA 260.5• NSW 204.1• QLD 167.9• SA 155.1• TAS 139.5• VIC 104• ACT 74.8• AUST 174.7(Victoria Sentencing Council 2010 based on ABS)

Context: Emergence of ‘Justice reinvestment’ -USA

• Calculates public expenditure on imprisonment in localities with high concentration of offenders and diverts a proportion of that expenditure back into programs and services in those communities.

• US developments –Council of State Government Justice Centre -US state expenditure on corrections risen from $12 billion to $52 billion 1988-2008.

• Half of those released will be reincarcerated within 3 years• Prison reductions in some US states –New York 20% 2000-2008;

New Jersey 19% 1999-2009• Support from business leaders PEW Foundation Report Right-

Sizing Prisons 2010

Emergence of ‘Justice reinvestment’ -UK

• The Commission on English Prisons, Report: Prisons today, Do Better Do Less (2009) ‘justice reinvestment seeks to re-balance the criminal justice spend by deploying funding that would otherwise be spent on custody into community based initiatives which tackle the underlying causes of crime’. (2009:8)

• The Commission mounted a strong case for ‘penal moderation’, using the key strategies of ‘shrinking the prison estate’ and ‘making justice local’, ‘with local prison and probation budgets fully devolved and made available for ‘justice re-investment initiatives.’ (2009:6)

Emergence of ‘Justice reinvestment’ -UK

• House of Commons Justice Committee –Cutting Crime: the case for justice reinvestment (2010) -‘Channel resources on a geographically targeted basis to reduce crimes which bring people into the prison system’

• ‘crim justice system facing a crisis of sustainability’ – prison as a ‘free commodity’ while other rehab and welfare interventions subject to budgetary constraints’

• Recommended capping of prison pop and reduction to 2/3 current level and devolution of custodial budgets - financial incentive for local agencies to spend money in ways which will reduce prison numbers

• Kenneth Clarke –attack on ‘bang em up’ culture

Emergence of ‘Justice reinvestment’ -Aust

• Senate Legal and Constitutional Affairs Committee Report Access to Justice 2009 Rec 21 ‘the federal, state and territory governments recognise the potential benefits of justice reinvestment, and develop and fund a justice reinvestment pilot program for the criminal justice system.’

• Aust 2008-09 $2.79 billion on prisons, $205 per prisoner per day over $500 per day juveniles in NSW

• Spatial dimension –’million dollar blocks’ –’millions are being spent on the neighbourhood but not in it’

• Papunya NT -72 adults in prison at cost of $3,468.960 for community of 400 people.

Emergence of ‘Justice reinvestment’ -Aust

• Devolving accountability and responsibility to the local level

• Data driven –’incarceration mapping’ – linked to ‘asset mapping’ eg Vinson’s ‘post codes’ cf ‘hot spot’ mapping

• Links with National Indigenous Law and Justice Framework 2009-2015

How to implement justice reinvestment-key difficulties

• identify political, administrative, and fiscal mechanisms through which such policies are implemented, with particular attention to the structures of government through which criminal justice budgets are devolved onto local authorities and local community agencies;

• identify barriers to the implementation of justice reinvestment policies: confronting engrained law and order and retributive sentiments; limits to ‘evidence led’ policies; lack of strong local government structures, affecting the possibility

of budgetary devolution • lack of guarantees that monies saved through imprisonment rate reductions

and ‘penal moderation’ not applied to ‘justice reinvestment’ programs• Possibility of disinvestment resulting

Increased interest in research into:• The economic and social costs of

imprisonment• Relationship between incarceration rates and

crime rates• Comparable benefits of public investment in

services and programs cf imprisonment

THE LIMITED BENEFIT OF IMPRISONMENT• Does incarceration of offenders increase or decrease

crime?• Methodological difficulties :

– ‘simultaneity’ –prison affecting crime/crime affecting prison– Left out variables– Difficulty of comparisons where prisons used differently (eg

proportion of drug offenders)– Measurement errors

• 2 main measures –’elasticity’ –percentage change in crime rates associated with 1% change in prison rate - ‘marginal effectiveness’ – number of crime prevented by putting one more offender in prison

The Limited benefit of incarceration• Benchmark study –Spelman -10% increase in imp

rate produces 2-4% decrease in crime rates.• NSW BOCSAR (2006) would need to increase

number of burglars imprisoned by 34% to get a 10% reduction in burglary (at a cost of $26 million per annum.

• Problem with these studies - don’t take into account the potential effect of imprisonment as a factor which might increase criminal behaviour post release.

The Limited benefit of imprisonment

• Effects of incarceration itself – ‘crime education’; fracturing of family and community ties; hardening and brutalisation; effects on mental health.

• Post incarceration effects- labeling; deskilling; reliance on criminal networks; reduced employment opportunities; civil disabilities.

• Third party effects –on families and communities.

Criminogenic effects of incarceration

• ‘Tipping point’ research :‘high rates of imprisonment break down the social and family bonds that guide individuals away from crime, remove adults who would otherwise nurture children, deprive communities of income, reduce future income potential, and engender deep resentment toward the legal system. As a result, as communities become less capable of managing social order through family or social groups, crime rates go up’ - Rose and Clear

Criminogenic effects of incarceration

• Garland’s ‘mass imprisonment’ argument – where imprisonment rates way above historical norm -fall disproportionately on particular (often racial) groups -effects cease to be explicable in terms of individual offending and involve whole communities.

• Imprisonment ‘becomes part of the socialisation process. Every family, every householder, every individual in these neighbourhoods has direct personal knowledge of the prison – through a spouse, a child, a parent, a neighbour, a friend. Imprisonment ceases to be a fate of a few criminal individuals and becomes a shaping institution for whole sectors of the population. ‘ (Garland)

Criminogenic effects of incarceration

• Mass imprisonment argument applies to Indigenous Australians

• normalisation, transmission and reproduction of imprisonment

• Levy -20% of Aboriginal children have a parent or carer in prison

• Incarceration one more contributor to social dysfunction –weakening communities and reducing social capital

Indigenous imprisonment rates• Indigenous Australians 1 in 4 of prison population• 2000- 2008 imp rate for Indigenous increased by 34%

from 1,653 per 100,000 Indigenous adults to 2,223 • Increase 7 times that of non-Indig -123 to 129 per 100,000• BOCSAR 1 in 4 young Indig men are being processed

through the crim justice system every year • Estimated that in 5 young Indig males under some form of

criminal justice supervision

What other factors affect crime rates?

• Crime rates dropping for many offences in NSW/Aust-homicide; b and e; car theft; robbery

• US lowest in 30 years; UK household and violent crime rates down over 40%

• Spelman 25% of US drop due to increased incarceration

• Vera study –fewer young people in pop; smaller urban pops; decreases in crack cocaine markets; lower unemployment rates; higher wages; more education and high school graduates; more police per capita; more arrests for public order offences

What other factors affect crime rates?

NSW BOCSAR studies point to:• Long term unemployment• High school completions• Reduction in heroin use• Rising average weekly earnings• Drug and alcohol abuse• Experiencing financial stress/living in a crowded

household/ being a member of stolen generation

The limited benefit of imprisonment –reformulating the question

• reformulate the key question –Vera Institute ‘the pivotal question for policymakers is not ‘Does incarceration increase public safety, but rather is incarceration the most effective way to increase public safety?’

• redirecting resources from the burgeoning prison sector into justice reinvestment policies and to practical assistance with ex-prisoner resettlement to reduce recidivism rates

Conclusion• ‘Watershed’ moment –increasing recognition of

excessive cost of penal expansion, financial and social.• Recognition that populist law and order auction

politics counterproductive, ineffective, costly and damaging.

• Imprisonment rates need to be consciously reduced as matter of government planning; Imp rates not just an aggregation of individual criminal acts but artifacts of social, economic and political and legal policy

• Traditional parties of social reform such as ALP not the only political agencies capable of reducing imprisonment rates;

Conclusion• Recognise limited benefits of imprisonment and

criminogenic effects of incarceration• Adopt justice reinvestment approaches• Building on broader social programs• Seed funding for particular pilot projects• Devolution of custodial budgets to local area and

to non government sector• policy and resources diverted from the custodial

to welfare, educational and training programs in community settings.

Reform: A Program for Government

• Justice re-investment. An over-arching proposal - – 1.Reduce the prison population – 2. Utilise the cost savings in enhancing or introducing other measures

known to be effective and cost-effective in dealing with crime. 1. Reduce prison population through changes to:• Sentencing law.

– Institute a comprehensive review of sentencing law.– Review statutory amendments which have led to a more severe

regime of sentencing –including standard non-parole scheme• Bail law.

– Institute a comprehensive review of bail law.– Review of the statutory amendments which have led to a stricter bail

regime.– Repeal or amend s 22A of the Bail Act

Reform: A program for government

• Parole – Restore the rehabilitation role of the Parole Service cf

policing and surveillance– Review policy in relation to breaches of bond and parole

conditions. – 2. Deploy savings to

Diversion. • Enhance diversion processes, particularly in relation to

persons with cognitive and mental health impairments.

Reform: A program for government

Transparency in Corrective Services • In-prison programs –evaluate and publish; make

programs widely available, including regional prisons

• Post-release programs. Significant investment in enhanced post-release programs, including housing, drug and alcohol, employment and training

• Young persons –make concerted attempts to reduce juveniles in custody and make special provision and exceptions for young persons.

References• D. Brown, ‘The Limited Benefit of Prison in Controlling Crime’,

Contemporary Comment, Current Issues in Criminal Justice, Vol 22 No 1, July 2010, 461-473

• M. Schwartz, ‘Building Community not Prisons: Justice Reinvestment and Indigenous Over-Imprisonment’ Australian Indigenous Law Review 2010 Vol 14(1) 1-17.

• See also the Australian prison project:http://www.app.unsw.edu.au/• Crime and Justice Research Committee :

http://www.crimeandjustice .org.au

Comparative penology: N. Lacey, The Prisoners’ Dilemma (2008) p60

Country Imprisonment rate Per 100,000

2006

homicide rate (%) Foreign Prisoners %

Co-ordination index rating (0-1)

Neo-liberal countries (Liberal market economies)

USA

South Africa

New Zealand

England/Wales

Australia

737

336

186

148

125

5.56

55.86

2.5

1.6

1.87

6.4

3.3

9.3

13.6

19.5

0.00

n/a

0.21

0.07

0.36

Conservative corporatist (Co-ordinated market economies)

Netherlands

Italy

Germany

France

128

104

94

85

1.51

1.5

1.15

1.71

31.7

33.2

28.2

21.4

0.66

0.87

0.95

0.69

Social democracies (Co-ordinated market economies)

Sweden

Denmark

Finland

Norway

82

77

75

66

1.1

1.02

2.86

0.95

26.2

18.2

8.0

17.2

0.69

0.70

0.72

0.76

Oriental corporatist (Co-ordinated market economy)

Japan 62 1.05 7.9 0.74

Comparative penology: Penal culture and political economy

Key factors:• The structure of the economy• Levels of investment in education and training• Disparities of wealth• Literacy rates• Proportion of GDP on welfare• Co-ordinated wage bargaining• Electoral systems• Constitutional constraints on criminalisation• Institutional capacity to integrate ‘outsiders’

Pratt on Scandinavian ‘exceptionalism’