Transcript MICHAEL KIRBY LECTURE UNE Emeritus Professor David …

Alternative Pathways to Address our Growing
incarceration Rates : Leadership Discussion
Emeritus Professor David Brown
Law 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 watershed
Penal watershed manifest in:
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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
30
Source: Walmsley, World Prison Population List, 7th edn. : www.prisonstudies.org
Comparative imprisonment rates
Australian 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 RightSizing Prisons 2010
Emergence of ‘Justice reinvestment’ -UK
• The Commission on English Prisons, Report: Prisons today, Do
Better Do Less (2009) ‘justice reinvestment seeks to rebalance 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 reinvestmentkey 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)
6.4
3.3
9.3
13.6
19.5
0.00
n/a
0.21
0.07
0.36
31.7
33.2
28.2
21.4
0.66
0.87
0.95
0.69
26.2
18.2
8.0
17.2
0.69
0.70
0.72
0.76
7.9
0.74
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
Conservative corporatist (Co-ordinated market economies)
Netherlands
Italy
Germany
France
128
104
94
85
1.51
1.5
1.15
1.71
Social democracies (Co-ordinated market economies)
Sweden
Denmark
Finland
Norway
82
77
75
66
1.1
1.02
2.86
0.95
Oriental corporatist (Co-ordinated market economy)
Japan
62
1.05
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’