A Paper from the Justice Reform Initiative

The Justice Reform Initiative is supported by more than 100 of our most eminent Australians, including two former Governors-General, former Members of Parliament from all sides of politics, academics, respected Aboriginal leaders, senior former judges, including High Court justices, and those who have joined their voice to ending Australia’s dangerously high reliance on jails.

A list of patrons getting behind this initiative is available here. We are joining the chorus of powerful voices already advocating for change and acknowledge the longstanding efforts of many other individuals and organisations.

The Justice Reform Initiative will show how high prison numbers undermine the safety of the community. It will show that governments can improve public safety by introducing more effective alternatives to incarceration based upon real evidence.

Our criminal justice system is not working. Past Governments of both political persuasions have been responsible for more than doubling the Australian jail population over recent decades. The Australian imprisonment rate (per 100,000 of adult population) more than tripled, from 66 in 1985 to 223 in 2019. It is now time to critically examine the evidence which shows that jails are failing us all. In many parts of the United States Democrats and Republicans are learning to work together to support alternatives to incarceration.

Jailing is failing as a deterrent.

The evidence is that rates of reoffending are actually increasing. Only a quarter of inmates are entering adult prison for the first time and more than half return within two years. Overcrowding is making it difficult to provide proper training and support programs to help prevent people leaving jail from re-offending and can actually make them more likely to commit further crimes.

Jail is also failing the victims of crime.

Victims of crime tell us that they are not helped by "tough on crime" rhetoric. They say to the contrary that they are helped when they witness the introduction of programs that address the causes of offending. They approve of innovative strategies of restorative justice for the support of victims.

Jailing is failing the most disadvantaged.

The number of people in prison has increased by nearly 50% since 2000. Statistics show clearly that people from disadvantaged or marginalised groups are far more likely to come into contact with police. Inter-generational poverty and lack of education and opportunity cause more and more young people from these communities to turn to crime. Incarceration at such an early age is habit forming.

Jailing is failing Indigenous Australians.

In 2018, Aboriginal and Torres Strait Islander peoples accounted for 3% of the total population, but 28% of the adult prison population. In an even grimmer statistic, only 5% of young people (age 10–17) are Aboriginal and Torres Strait Islander people, but they represent 59% of young people in detention. It is nearly 30 years since the Royal Commission into Aboriginal Deaths in Custody. Although governments accepted almost all of the Commission’s recommendations, many of them, such as imprisonment being the "last resort," have not been implemented. Governments have also failed to adequately address the underlying systemic issues which the Royal Commission identified as the cause of the disproportionate rate of Indigenous incarceration.

Jailing is failing people with mental illness or cognitive disability.

The proportion of offenders with a history of mental illness is over 50% and that figure is even higher for young people in custody. Almost 90% of young people THE STATE OF THE INCARCERATION NATION | 2

in custody have a past or present psychological disorder. The estimates of prisoners with intellectual disability or borderline intellectual disability are as high as 20%. All these people have limited access to appropriate mental health or other critical support while they are in prison and most will be released back into the community in a relatively short period of time. In NSW, for example, over 20,000 people are released from prison every year.

Jailing is failing women.

The fastest growing cohort of Australia’s prison population is women, and a disproportionate number of those women are Aboriginal and Torres Strait Islanders. Most have committed non-violent offences, and many are themselves victims of horrific domestic abuse. One immediate consequence of incarcerating these women is that they are separated from their children, who are thereby made victims of the same systemic failure.

Jailing is failing our young Australians.

Sadly, most of the young people in Australia’s juvenile justice system come from backgrounds where they have already often suffered from severe neglect or abuse and/or have been placed in out of home care. This was clearly demonstrated by the Royal Commission into the Don Dale Centre in the Northern Territory. The children in these centres, who can be as young as 10, have often had the hardest of young lives and need family and community support, education and life opportunities, rather than being locked up.

Jail is failing in terms of rehabilitation: it is in the interests of everybody in the community that repeat offending be radically reduced by transformational community programs which improve pathways for people as they leave prison, including through access to education, training, genuine work opportunities and by addressing homelessness. Sadly, under current arrangements, in every part of Australia, these critical community and support programs are not operating effectively, if at all. One Corrective Services Commissioner has confirmed that 70% of the prison population is functionally illiterate. Short-term prisoners (including those on remand) are mostly not eligible for any such programs in any event.

Jailing is failing Australian taxpayers.

Australia now imprisons more people than at any time since 1900, in both total number and per capita, at a cost exceeding $3.6 billion annually or $110, 000 per prisoner per year. Our incarceration rate is above all Western European countries and Canada, among many others. Sadly, instead of reducing crime it has only led to higher rates of reoffending.

Successful bipartisan reform initiatives internationally show us there is another way. It’s time for governments to listen and accept the evidence for reform.

It’s time to admit it – jailing is failing. THE STATE OF THE INCARCERATION NATION | 3

Our prison population has swollen to record levels

"Our prison population has swollen to more than 43,000 – up from under 30,000 only eight years ago and this comes with a $3.6 billion annual price tag to the Australian taxpayer."

Australia’s incarceration rate is higher than at any time since 1900, in both total numbers and per capita.

The following statistical summary demonstrates the extent to which Australia’s overreliance on prisons has got out of control.

• The number of adult prisoners is currently 43,0281. This number has almost doubled since 2000.

• The national imprisonment rate is 223 persons per 100,000 adult population (or 169 per 100,000people, including children),2 up 24% in a decade. This rate has more than tripled since 1984.

• Two in three prisoners, 67% or 28,721 people, weresentenced, whilst 33% were unsentenced. 3

• Among sentenced prisoners, there has been a growth rate of over 25% since 2009, up from 22,923.4

• Unsentenced prisoners have grown from 6,391 to 14,210 over the same period – a 122% increase

• 12.8% of unsentenced prisoners have been in prison for a year or longer.

• There have been especially large increases in remand in Victoria (264%) and the ACT (258%) over the past decade.

• Of those entering prison, a staggering 78% were unsentenced.5

• The number of female prisoners grew by 64% across the decade to 2019, from 2,127 to 3,494, and women make up an increasing proportion of prisoners, up from 6.4% in 2000 to 8.1% in 2019.

• 38% of people entering prison had children who depended on them for their basic needs, including 54% of women.6

Our incarceration rate in Australia (per 100,000 population) is above all countries in Western Europe and Canada.7

It is also well above most of the countries in the OECD. For comparison, countries like Japan, Iceland, Finland, Ireland and Germany are all below 100 prisoners per 100,000 people – well below Australia’s 169 per 100,000 people.

The Northern Territory imprisons people at a higher rate8 than the United States,9 which is itself a global outlier, especially amongst OECD countries. Many other Australian jurisdictions do not fare much better, with our national incarceration rate above the global average in every jurisdiction except the ACT.

"Far from being tough on crime, the default to jail sentence leads to more recidivism, more crime, more victims and human suffering"

Recidivism rates are on the rise across the country; this makes sense, given that:

• Almost 3 in 4 (73%) prison entrants reported they had previously been in an adult prison;

• Almost one-third (32%) had been in prison at least five times before;10

• 10 AIHW (2019). The Health of Australia’s Prisoners, 2018.

• Only a quarter were entering the prison system for the first time; and

• Once exiting prison, 55% of prisoners will return to corrective services within two years,11  

The situation is even worse for Aboriginal and Torres Strait Islander people, with 44% of prisoners having been in prison at least five times before, compared with 25% of non-Indigenous people.

Only 16% of Aboriginal and Torres Strait Islanders entering prison had never been in prison before. Similar dire results are seen in juvenile detention, with 8% of non-Aboriginal and Torres Strait Islander entrants having been in detention before, compared to 21% of Aboriginal and Torres Strait Islander entrants.13

Simple solutions of over-relying on imprisonment are creating complex problems, and we are all paying the price, repeatedly.

Aboriginal and Torres Strait Islanders, people with mental health issues or intellectual disability, amongst others, are all poorly served by an over-reliance on our prison system.

Aboriginal and Torres Strait Islander people make up only 3% of the wider Australian population, but represent 28% of prisoners,14

Shockingly, almost 1 in 20 Aboriginal and Torres Strait Islander males are in prison right now, with an imprisonment rate of 4,719 per 100,000 adult males in March 2020.17 and Torres Strait Islander adults in prison per 100,000 of population.18

Seventy-eight percent of Aboriginal and Torres Strait Islander prisoners had been imprisoned under sentence previously.20

The over representation of Indigenous people is particularly reflected in youth detention facilities. Only 6% of 10–17 year olds are Aboriginal and/or Torres Strait Islander, compared with 58% of young people in detention.21

• A total of 2 in 5 (40%) prison entrants reported being told they had a mental health condition at some stage in their life.

• Female prison entrants (65%) were more likely than male prison entrants (36%) to report a history of a mental health condition.

• One-quarter (26%) of prison entrants had a high or very high level of psychological distress score on the Kessler 10 scale.

• Almost one-quarter (23%) of prison entrants reported currently taking medication for a mental health condition.

• About 1 in 6 (16%) people in custody received mental health-related medication.

• Women in custody (28%) were almost twice as likely as men (15%) to receive mental health-related medication

• Almost 1 in 5 (18%) prison entrants were referred to mental health services for observation and further assessment when they arrived in prison.22

The evidence also shows that the ‘postcodes of disadvantage’ identified by the late Professor Tony Vinson in the Dropping off the Edge reports25

"Increasingly, both the left and the right are reaching the conclusion that that we are not getting value for money from our prisons. The Institute of Public Affairs, for example, concluded in its 2017 Justice Project that Australia has the fifth most expensive prisons in the OECD and the seventh fastest prison spending growth in the OECD. No area of government expenditure should be immune from rigorous public and parliamentary examination to assess whether this massive expenditure is meeting its objectives. Clearly, on the evidence, jailing is failing us all. "

Australia’s net operating expenditure on prisons and community corrections in 2018-19 was $3.6 billion, compared with $2.5 billion on public health activities and services.27 The total expenditure on the justice system is over 18 billion per annum, according to the Productivity Commission.

The average annual recurrent expenditure per prisoner in Australia is around $110,000.28

This money could be better spent, especially when almost half of the prison population will return to prison within two years of release. Of course, this does not take away from the fact that we need prisons, especially for the most violent offenders who display no remorse, but an increasing proportion of people are in prison for non-violent offences.

A range of more effective, well-researched, lower-cost alternatives to incarceration exist, particularly for offenders with complex needs, those on remand and minor offenders who currently receive short sentences.

The most incarcerated nation on Earth is starting to change their thinking on prison, understanding that it is not effectively reducing repeat incarceration and is simply too big a strain on public finances. We must also do so.

COVID-19 is an opportunity to rethink how taxpayer money is spent and what it is invested in. Do prison sentences, especially for minor crimes, result in fewer prisoners over time? And are prison sentences the best approach to support community safety? Not according to the research – prisons just result in more crime and more human and economic cost to the community

Although there may be a common perception that the public is ‘tough on crime’, there is clear evidence that the public in fact supports alternatives to imprisonment in appropriate circumstances. For example, recent unreported data from the Australian National University’s national poll indicates that 70% of respondents agreed with the statement that, instead of going to prison, non-violent offenders should be given a community based-order. There was even stron'ger support for the proposition that, instead of prison,

• Young offenders should have to take part in programs that teach job skills, moral value, and self-esteem (91%);

• Mentally ill offenders should receive treatment in mental health facilities (89%); and

• Drug-addicted offenders should be put on an intensive program of rehabilitation and counselling (87%).

The same poll indicates that 49% of respondents are not confident that the courts have regard for victims’ rights. Worse still, only 22% were confident in prisons’ ability to rehabilitate prisoners and 20% were confident that they deter future offending.

Parliamentarians can play an important role to educate the community on the need to shift our criminal justice focus away from primary reliance on prisons to evidence-based alternatives which will keep our communities safer, better look after the victims of crime and reduce repeat offending.

In our future communications to parliaments, we will be increasingly outlining the evidence-based alternatives, which we will be championing and urging be introduced across Australia with the cross-party support they deserve.

We will be urging men and women of good will in the community from across the political spectrum to become active in our advocacy for change to help send a powerful message to our political leaders t hat jailing is failing and that, as a community, we deserve better.

The list includes former justices of the High Court, a former state Chief Justice and judges from other courts; respected Aboriginal leaders; a former Federal Police Commissioner, Director of Public Prosecutions, former Australians of the year and numerous former Federal and state Ministers from both sides of politics. A list is available here.

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