A Paper from the Justice Reform Initiative

THE STATE OF THE INCARCERATION NATION

A BRIEFING TO AUSTRALIA’S MEMBERS OF PARLIAMENT

6 September 2020 THE STATE OF THE INCARCERATION NATION | 1

Introduction

"Jailing is failing our nation on every front – it leads to more offenders committing more crimes, more disadvantage and more cost to the taxpayer."  AGREED

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.  AGREED, NAMELY, CORPORAL PUNISHMENT THAT AUSTRALIA'S FOREFATHER GOVERNORS SENTENCED IN THE INITIAL HALF OF THE LAST CENTURY

Jailing is failing

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. NOTED

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.  AGREED

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.  

ALAS, 'JUSTICE FOR THE INNOCENT VICTIM/S' IS NO LONGER CONSIDERED WHEN SENTENCING A CONVICTED CRIMINAL.  IT SHOULD BE RE-INSTATED.

"Justice for the Innocent Victim/s (Retribution) is not one of the Seven Purposes of Sentencing convicted criminals.  If Justice for the Innocent Victim/s was a quantifiable measurement when determining a Sentence, the below listed more recent rape-murders, and several hundred murders of other innocent females since the 'death penalty' was removed as a Sentencing option around the middle of the last century, would have been considerably less likely to have tragically occurred:

The tragic deaths of comedian, Eurydice Dixon Aiia Maasarwe8 year old Sofia Rodriguez-Urrutia Shu9 year old Ebony Simpson, Prue Bird, two Bega High School students, Lauren Barry and Nichole Collins, Mersina Halvagis, Nicole Patterson and Margaret Maher, nurse Anita CobbyLisa Maude Brearley, teenagers Kerryn Henstridge and Anne Smerdon."

Jailing is failing the most disadvantaged.   AGREED

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.   AGREED

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.   AGREED

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

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.   AGREED

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.   AGREED

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. NOTED

PHIL JOHNSTON'S DISCUSSION PAPER - Thinking Outside the Cell  IS EXPLAINED AT www.AustraliaSlowlearner.world BELOW IS AN EXTRACT FROM Section (g) of 1st Prong  -  A return to Corporal Punishment (previously Sentenced during the initial half of the last century), more so for Recidivists:

g)    An Infliction of Corporal Punishment can cut prison Sentences in half

Rather than a convicted criminal being Sentenced to say 12 years jail with a non-parole period of say seven years for Trafficking in a drug of dependence (not a commercial quantity) - Level 4, depending on the Nature Of The Crime, and the Prisoner's State Of Mind, Age And Sex, the presiding judge could observe the Four Gears of Early Rehabilitation and Release and Sentence the convicted criminal to:

Half the above jail sentence, namely six years jail with a non-parole period of 3½ years, plus -
*      three lashes with the Cat 'O Nine Tails across the bare back; and
*      three canings with the
Australian Rattan across the bare buttocks,
inflicted in toto within the initial two months after any legal appeals are heard and determined.

Immediately upon dispensement of Sentenced  Corporal Punishment, then Rehabilitation commences incorporating Education and Vocational Training to instil self-belief and optimism due to the opportunity for a chance at a paid job, thereby expediting custodial release back into the community by utilising an Electronic Monitoring Device, as taxpayers, into an employed job for a minimum of three months offered by Supportive ASX 200 Companies Such Rehabilitation adopts the Restorative Justice Model Successfully Adopted in Scandinavia since the late 20th century, Texas Justice Reinvestment, San Pedro prisonBolivia - a prison with no locks and San Patrignano, Northern Italy, in particular Improving Responses to People with Mental Illnesses with Specialist Drug & Alcohol Treatment.

Cognizant of the Baker's Dozen Unsustainable Problems Within Australian Prison System, in particular that Australian jails are bursting at the seams and High recidivism/re-offending ratesthe Number Of Punishment Strokes In The Pilot Stage Of The Re-introduction Of Corporal Punishment in Australia tabulates the number of 'condition precedent' Corporal Punishment 'strokes' with the Cat 'O Nine Tails and the Australian Rattan prior to prison psychologists/case workers supervising a dedicated Rehabilitation program that adopts aspects of the -

*         Restorative Justice Model Successfully Adopted in Scandinavia since the late 20th century; and

*        Texas Justice Reinvestment initiative.

Four Gears forecasts the material reduction in the current $4.416b circa cost of the Australian Prison System upon the Public Purse (by also re-introducing Capital Punishment - described below in 2nd Prong) by replacing approx half of current Jail Sentences with a Swift, Frightening and a Painful Dose of Corporal Punishment for Non-Murderous Crimes and for Suitable Male Criminals

Administrative Costs savings should not be underestimated by the -

(a)        'politically correct left' civil libertarians that cannot countenance Corporal Punishment, but lack the capacity to understand that "warehousing the problem" results in the Baker's Dozen Unsustainable Problems; or

(b)        proponents of Tough on Crime that fail to ponder the Material Public Purse Prison Costs of their short-sighted folly, often driven by radio audience ratings.

Four Gears forecasts that income tax receipts would increase due to more released "longer-Sentence inmates" gaining meaningful employment, initially with one of the Supportive ASX 200 Companies based on the Scandinavian precedents in Denmark, Norway, Sweden and Finland which is compelling reading.

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.   AGREED

It’s time to admit it – jailing is failing. Baker's Dozen Unsustainable Problems within the Australian Prison System includes Jail is the University of Crime

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." 

The annual cost of Australia's prisons (excluding Capital costs) was $3,643,829,000 in 18-19 - Productivity Commission Table 8A.1.  The annual cost increased to $4,886,897,000 when $1,243,068,000 of 'Capital costs' to build more prisons and expand existing prisons is added in.

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.  AGREED

  • 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, were sentenced, 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  NOTED

Our prison population compares poorly to OECD nations and is ahead of all Western European countries

"The Netherlands by contrast to Australia have massively reduced their prison spending, largely by closing jails, and reinvested in evidence-based alternatives to incarceration. As a result, their rate of reoffending has been declining for a decade."

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.  AGREED

Prison leads to more crime and we are setting up a proven pathway back to prison

"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;  AGREED

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

  • 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. AGREED

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.

Prison is particularly failing Aboriginal and Torres Strait Islander people and other disadvantaged Australians

"The revolving prison door is bad for families and communities and entrenches disadvantage. It wastes human potential and is scandalously wasteful of public money that could be spent on enhancing the wellbeing and productivity of communities"

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 Islanders

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   INCORRECT

BELOW IS CORRECT BASED ON Page 11 of Youth detention population in Australia - 2019 - Summary  -  Bulletin 148 February 2020:

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 but they represent 58% of young people in detention.21

"Among young people aged 10–17, about 57% of those in detention in the June quarter 2019 were Aboriginal or Torres Strait Islander. This was fairly consistent over the 4-year period at 55%–62%. Over the same period, young Indigenous Australians made up 6% of the Australian population aged 10–17."

Mental Health

The key findings of the Australian Institute of Health and Welfare’s report, The Health of Australia’s Prisoners, 2018 (pg 27), regarding mental health were:

  • 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

Whilst a lot less is known about intellectual disabilities in prison, "several studies have found that 25%–30% of people in prison have borderline intellectual disability, and 10% have a mild intellectual disability".23

Other Vulnerable People

There are of course many other vulnerable members of our community who are significantly disproportionately represented in our prisons. The evidence shows that, of those entering prison, one in three is homeless during the four weeks before prison and more than half (54%) report being unemployed in the 30 days before entering prison. Of those exiting prison, over half expect to be homeless on discharge and less than one quarter had employment organised on release.24

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

The time has come to see long-term intergovernmental coordination and substantial investment in these communities, to break the cycle of poverty and disadvantage. AGREED This goal is worthy of the support of all political parties, as are the ideas of justice reinvestment. The issues also overlap with the Closing the Gap commitments of all our governments to Aboriginal people and communities. It was indeed these underlying issues which the Royal Commission into Aboriginal Deaths in Custody recognised as giving rise to the disproportionate rate of Aboriginal incarceration

Prisons are a poor use of taxpayer dollars

"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. AGREED

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.

"Reforms in Texas since 2007 have seen the state close four prisons, saving an estimated US$3 billion. The American example shows that it is possible to cut both crime rates and costly incarceration rates - over the past ten years, seven states have done it."

PHILIP JOHNSTON'S THINKING OUTSIDE THE CELL  DISCUSSION PAPER CHRONICLES THAT REHABILITATION PROGRAMMES FOLLOW THE RESTORATIVE JUSTICE MODEL SUCCESSFULLY ADOPTED IN SCANDINAVIA SINCE THE LATE 20TH CENTURYTEXAS JUSTICE REINVESTMENTSAN PEDRO PRISONBOLIVIA - A PRISON WITH NO LOCKS AND SAN PATRIGNANO, NORTHERN ITALY, IN PARTICULAR IMPROVING RESPONSES TO PEOPLE WITH MENTAL ILLNESSES WITH SPECIALIST DRUG & ALCOHOL TREATMENT

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. 

PHILIP JOHNSTON FORECASTS THAT THE $4.415968 BILLION TOTAL NET OPERATING EXPENDITURE ON PRISONS AND COMMUNITY CORRECTIONS 2017-'18 WILL BE 14% TO 16% HIGHER FOR THE 2019-'20 FINANCIAL YEAR DUE TO SOLITARY CONFINEMENT PRACTICES OBSERVED TO MITIGATE COVID-19, EVEN THOUGH COVID-19 ONLY IMPACTED THE FINAL FIVE MONTHS OF 2019-'20

Politicians that are not familiar with a topical matter invariably retort “We need to have a discussion.”  The following two, of several recent articles, evidence why due to COVID, Australia’s State and Territory Govts must have a discussion on the cost-effectiveness of reverting to Sentences imposed in the initial half of the previous century - because isolating inmates is cruel, counter-productive to Rehabilitation and exceedingly costly upon the Public Purses:

*        Advocates demand an end to solitary confinement for at-risk prisoners
*          Some prisoners are spending 22 hours a day in solitary confinement during COVID’s lock down, lawyers allege

Public opinion on crime shows clear support for alternatives to prison

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 stronger 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.

AGREED THAT PRISONS SHOULD BE REHABILITATION FACILITIES.  HOWEVER, AFTER PUNISHMENT IS DISPENSED.  IF AUSTRALIA IS TO REDUCE THE INCIDENCE OF LEVEL 6 TO LEVEL 1 CRIMINAL OFFENCES (LISTED UNDER 'SAMPLE OFFENCES' IN PENALTY SCALE) IT MUST SENTENCE  PUNISHMENTS THAT ACTUALLY DETER CRIMINAL ACTIVITY, IN THE MANNER THAT OUR FOREFATHER GOVERNORS SENTENCED BOTH CAPITAL AND CORPORAL PUNISHMENT IN THE INITIAL HALF OF THE 20TH CENTURY WHICH WERE MATERIALLY MORE MERCIFUL THAN THOSE SENTENCED IN THE 19TH CENTURY - EXPLAINED METHODICALLY IN DETAIL IN THINKING OUTSIDE THE CELL.

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 that jailing is failing and that, as a community, we deserve better.

The Justice Reform Initiative is backed by eminent patrons, including former Governors-General Dame Quentin Bryce AD CVO and Sir William Deane AC KBE as patrons-in-chief.

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.

The Justice Reform Initiative deeply appreciates the support of the Paul Ramsay Foundation.

The Initiative respectfully acknowledges and supports the current and longstanding efforts of Aboriginal and Torres Strait Islander people to reduce the numbers of Indigenous people incarcerated in Australia and, importantly, the leadership role which Indigenous-led organisations such as Change the Record continue to play on this issue. We also acknowledge the work of many other individuals and organisations seeking change, such as those focused on the rate of imprisonment for women, people with mental health issues, people with disability and others

www.jailingisfailing.org.au

info@justicereforminitiative.org.au

 

 

 

 

 

 

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