THE LIMITED BENEFIT OF IMPRISONMENT AND THE EMERGENCE OF JUSTICE REINVESTMENT POLICIES

EMERITUS PROFESSOR DAVID BROWN, LAW FACULTY, UNSW

INTRODUCTION

THREE THEMES

1. Recognising social determinants as well as individual culpability

2. Linking criminal justice and political economy

3. Inserting criminal justice into a social democratic narrative

Theme 1 :Recognising social determinants as well as individual culpability

Doctrinal criminal law and popular debate over crime located primarily at level of individual action, characterised in terms of culpability/responsibility, guilt, ‘evil’.

Set of wider discourses which locate causal or precipitating factors in social, cultural, economic and political forces beyond the individual.

To point to the social determinants of crime not inconsistent with holding offenders accountable

THEME 2 : Linking criminal justice and political economy: 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

Theme 2 Linking criminal justice and political economy. N. Lacey, The Prisoners’ Dilemma (2008) p60

Country Imprisonment rate Per 100,0002006

homicide rate (%) Foreign Prisoners % Co-ordination index rating (0-1)

Neo-liberal countries (Liberal market economies)

USA South Africa New Zealand England/WalesAustralia

737336186148125

5.5655.862.51.61.87

6.43.39.313.619.5

0.00n/a0.210.070.36

Conservative corporatist (Co-ordinated market economies)

NetherlandsItalyGermanyFrance

1281049485

1.511.51.151.71

31.733.228.221.4

0.660.870.950.69

Social democracies (Co-ordinated market economies)

SwedenDenmarkFinlandNorway

82777566

1.11.022.860.95

26.218.28.017.2

0.690.700.720.76

Oriental corporatist (Co-ordinated market economy)

Japan 62 1.05 7.9 0.74

Theme 2: Linking criminal justice with 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’

Theme 2: Linking criminal justice with political economy

The relatively disorganised, individualistic liberal market economies particularly vulnerable to penal populism -‘liberal/co-ordinated market economy’ distinction.

‘Co-ordinated systems which face long term relationships –through investment in education and training, generous welfare benefits, long term employment relationships -have been able to resist the powerfully excluding and stigmatising aspects of punishment’ cf liberal market systems oriented to flexibility and mobility –turn to punishment as a means of managing an excluded population.

Theme 2 Linking criminal justice with political economy: Pratt on Scandinavian ‘exceptionalism’

Pratt on Scandinavian ‘exceptionalism’ Low rates; exceptional prison conditions Origins in: cultures of equality

–: welfare state; universal social security

–: high levels of trust and solidarity

–: bodily punishments scaled down or abolished

Pratt on Scandinavian ‘exceptionalism’– Strong state bureaucracies with

considerable autonomy and independence from political interference

– Strong interventionist central state

– mass media controlled by public organisations

– High levels of social capital

– Power and influence of expertise

Comparative imprisonment rates: Victoria

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)

Theme 3: Inserting criminal justice into a social democratic narrative : Kevin Rudd, The Monthly 2009 ‘Social justice is also viewed as an essential component of the

social-democratic project. The social-democratic pursuit of social justice is founded on a belief in the self-evident value of equality, rather than, for example, an exclusively utilitarian argument that a particular investment in education is justified because it yields increases in productivity growth (although, happily, from the point of view of modern social democrats, both things happen to be true). Expressed more broadly, the pursuit of social justice is founded on the argument that all human beings have an intrinsic right to human dignity, equality of opportunity and the ability to lead a fulfilling life. ...Accordingly, government has a clear role in the provision of such public goods as universal education, health, unemployment insurance, disabilities insurance and retirement income.’

Theme 3: SITUATING CRIMINAL JUSTICE IN A SOCIAL DEMOCRATIC NARRATIVE

The global financial crisis provides an opportunity for a rethink in criminal justice policy as part of a more general reconsideration of the excesses of neo-liberalism. Rather than simply engage in market intervention solely to stimulate demand and ‘business as usual’, attempts should be made to restructure and regulate the market in social directions, requiring greater environmental sustainability, reducing income differentials, curbing cultures of greed and gambling in the financial sector, re-configuring the tax system in a progressive direction and investing in public transport and other infrastructure promoting community based sharing networks which are not based on a constant increase in consumerism, consumption and narcissism.

THEME 3: SITUATING CRIMINAL JUSTICE IN A SOCIAL DEMOCRATIC NARRATIVE

Criminal justice should be part of this broadly social democratic narrative. Criminal justice issues need to be connected with broader social and economic policies. Aspects of this connection might involve a range of tasks such as :

rerouting penal policy from the exclusive terrain of individual culpability, so familiar in tabloid, talk-back and political discourse;

linking criminal justice with political economy and inequality; Recognising the limited benefits of imprisonment exploring a range of developments in ‘justice reinvestment’;

redirecting resources from the burgeoning prison sector into practical assistance with ex-prisoner resettlement;

THE LIMITED BENEFITS 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 benefits 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

‘Mass imprisonment’ argument – rates way above historical norm and fall disproportionately on particular (often racial) groups such that the 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

The racial component in Imprisonment rates

Indigenous imprisonment rates

AboriginalImprates2008AIC.pdf 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

The limited benefits 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

‘Justice reinvestment’ 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 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

‘Justice reinvestment’ UK developments –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

‘Justice reinvestment’ 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

Spatial dimension –US ’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.

‘Justice reinvestment’ 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 Queensland Justice Agreement –specific goal to reduce

the rate of ATSI people incarcerated by 50% by 2011.

Conclusion Prospects of reversing the expansion of

imprisonment depend at most general level on mitigation of neo-liberal political, economic and social policies – argue for a politics of inclusion, social welfare provision and social solidarity –renewal of social democracy

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

Conclusion Recognise limited benefits of imprisonment and the

criminogenic effects of incarceration Adopt justice reinvestment approaches policy and resources diverted from the custodial to

welfare, educational and training programs in community settings.

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

See also the Australian prison project:http://www.app.unsw.edu.au/