The Australian prison system is failing, as incarceration rates are at an all-time high. As of June last year, there were 38,845 adult prisoners in corrective services custody, making the national imprisonment rate grow to 208 per 100,000 adults.
The number of inmates on remand (awaiting the finalisation of their cases) has skyrocketed in recent years. At the end of the last financial year, there were 12,111 unsentenced inmates languishing behind bars – locked away before their cases were finalised.
Between December 2011 and December 2016, the number unsentenced inmates had increased by 84 percent.
A large number of these people will ultimately have their cases dropped or thrown out of court, but in many cases the damage of months or even years of incarceration will already have been done – whether they are innocent or guilty.
Build more prisons and fill them up
State governments around Australia seem to have the same answer to the overcrowded prison crisis, which is to make more room.
In Victoria, the government is investing in a new youth justice facility. The Queensland government reopened the Borallon prison in April last year. While in NSW – where the prison population is at a record high of 12,700 inmates – the government plans to add an extra 7,000 prison beds.
The major contributing factor to the increase in incarceration is the tough on crime stance of federal and state governments. Indeed, the overall crime rate has consistently fallen since 2001, and the rate in NSW is now the lowest in 40 years.
There are tougher bail laws, and harsher sentences being meted out by the courts – leading to a significant increase in the number people being detained for non-violent offences.
Discriminatory sentencing practices are leading to an over-representation of Indigenous people being detained in correctional facilities. Aboriginal and Torres Strait Islander people made up 27 percent of the Australian prison population as of June last year, while they only account for 2 percent of the adult population in this country.
Twenty six years after the Royal Commission into Aboriginal deaths in custody, Indigenous people are still dying in police lock-ups and prison cells. And due to a lack of post-release services, there’s an epidemic of First Nations peoples dying soon after their release from gaol.
Replacing bars with electronic devices
This increasing reliance on incarceration continues unabated in this country, even though the prison system has been shown to be ineffective. Recidivism rates are close to 50 percent, meaning half the inmates who are released from prison are back again within two years.
But there’s a growing movement of people who are looking towards alternatives to traditional forms of criminal punishment. One of the alternatives is using technological advances to revolutionise incarceration.
Professor Mirko Bagaric is one of the country’s leading advocates of technological incarceration – a system that would allow for the majority of inmates to be detained at home. Implementing such a system would save hundreds of millions of dollars per year, meaning only a handful of prisons would be required to hold dangerous offenders.
Sydney Criminal Lawyers® spoke with Mirko Bagaric, director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University, about the possibility of technology replacing the walls of prison, and the problems with the sentencing system in Australia.
Firstly Mirko, how would you describe the current state of the Australian prison system?
The whole sentencing system, and in particular, the prison system is broken. The reason it is broken is that all the governments throughout Australia don’t have a clear indication of what they are trying to achieve by sending people to prison. They do have objectives that are transparent, but the empirical data indicates that most of those objectives aren’t attainable.
One reason why penalties have increased in many areas – particularly for drug offences – over the past twenty years is the theory of general deterrence. That being, if government’s increase penalties to very high levels, then that will discourage would-be offenders from offending in the future.
That theory has been debunked by empirical data over the last 30 years, to the point where the evidence indicates that general deterrence doesn’t work.
The community won’t commit less crime in circumstances where penalties are increased. And the reason for that is, when people think about committing an offence the only thing that they think about is whether or not they’ll get caught if they’re likely to commit the offence. They don’t then go to the next level and think about what will happen in those circumstances.
And that’s why, we know now the only effective deterrent to crime is if the government puts in place mechanisms for increasing people’s perception that if they do crime, they’ll get caught. If people think they’re likely to get caught, then they won’t commit the crime.
The nature of the sanction is secondary, almost irrelevant.
That’s why people are safe from crime in police stations and airports, because they have cameras there. That’s why speed cameras work so well, because people think if they do something, they’ll get nabbed.
So the theory of escalating and ratcheting up penalties to try and deter people from crime is broken. It doesn’t work. And that’s why we’ve got more drugs on the street than anytime in human history in most western countries.
Sentencing is the one area of human endeavour where there’s the biggest gap between what we as a community do, and what knowledge tells us is achievable.
There’s a huge gulf between empirical data and scientific research in sentencing, and what governments do. And that’s why the system is utterly broken. That’s why we’ve got runaway prison numbers in Australia. We’re now coming second to America, in terms of having a mass incarceration crisis.
Not only are the numbers increasing at the highest rate in Australia’s history, in absolute terms, we now imprison people at about double the amount of the Australian average.
What will continue to happen – given the increasingly tough on crime agenda – is that prison numbers in Australia are going to continue to increase in an uncontrolled manner.
As you’ve pointed out, technology has changed many aspects of society, but it hasn’t had much of an effect on the criminal justice system.
Not at all. An absolutely negligible amount. The way we deal with our most serious criminals in society, is pretty much the same as when Captain Cook came to Australia.
You’re advocating for a move away from traditional prisons to a form of technological incarceration, which involves the incorporation of three technological systems.
Can you tell us what they are and how technological incarceration would work?
What it is effectively, is an extension of the current home detention scheme we’ve got now. Under many home detention arrangements people have an ankle bracelet that has GPS monitoring of wherever they are at any point in time.
What we do know is that the degree of receptivity towards home detention in the community is significant. Communities feel very comfortable that people are punished through deprivation of liberty, in terms of confining them on where they can go on a day-to-day basis.
The problem with that though, is it’s only appropriate for a certain number of offenders. We can’t place offenders that we think are at a significant risk of committing more offences in home detention, because while we know where they are at any given point in time, we can’t monitor their actions. And we also can’t prevent them from escaping.
So what we need to do is enhance the capabilities and functionality of home detention beyond just being able to monitor people’s locations. Technology exists now where we can do that pretty effectively.
We can put sensors on people, where the system is based on similar physics and mechanics to that used in driverless cars. Whereby, we can monitor their every activity. So we can know if a person is walking, running, sleeping, if they’re acting in a way that seems like they’re trying to force another person, or they’re picking up an implement like a knife or something else that can be used as a weapon.
That can be done in real time. And so, not only can we monitor the geographical location of people, but also their movements and their actions.
That still doesn’t provide an adequate alternative to imprisonment, because the advantage you have with imprisonment, if a person is engaging in inappropriate conduct, is they can be immobilised or quickly arrested by guards.
To overcome that, what would need to occur, is that technology needs to be developed, so that if a person behaved dangerously towards another person, they can be immobilised immediately until police, or perhaps corrections staff, came to stabilise that situation.
Now we don’t have that technology at this time. But what we do have at the moment, the best technology that uses that in the physical approximate space is tasers.
Tasers are far safer than police guns. In fact, tasers are far safer than batons. Very few people who are tasered have any degree of permanent or long-standing incapacity.
So tasers work marvellously by forcing involuntary muscle contractions. Therefore people can’t do any deliberate movements.
Technology could be readily developed so that people can be remotely tasered. At the moment, most people are tasered from a distance of four to six metres. But the implement that’s used to monitor people, that electronic bracelet, could have a tasering mechanism put on it, which could be remotely activated.
It could only be remotely activated in circumstances where the person is behaving dangerously, for example, they’re striking someone, they’re about to stab someone, or escaping from custody.
If we had sensor technology that an offender wore while they were in home detention, we could be almost 100 percent certain that at every point in time, we can monitor what they’re doing. Therefore, we could be confident that they weren’t committing any crimes while they’re under home detention.
But if they did do something inappropriate we’ve also developed technology to make sure we stop them in their tracks. So that would have all the functionalities and all the benefits of current imprisonment.
The only benefits of current imprisonment are that we can be sure that while people are incarcerated that they don’t commit offences within the community. Home detention doesn’t currently do that.
But with these new enhanced technological functionalities, we can have those same benefits and it would be a fraction of the cost of imprisonment.
Also, it’s in circumstances where we can be almost 100 percent sure that the recidivism rate of people once the sanction expires, will be much lower than people when they currently get out of prison.
Why do you think technological incarceration would reduce reoffending as opposed to the traditional prison system?
The current studies that have been done with people who are on home detention is that they recidivate between 20 to 50 percent less than people who are currently sent to prison.
The reason for that seems to be that when people are on home detention, the normal daily activities that they participate in are far more normalised, than they are in the prison environment.
When their sanction expires, people do have the coping and the adaptive skills to go back into the community and to play meaningful roles, as opposed to coming from prison, where that environment is totally foreign. And people then find it very jarring to go back into society.
So you don’t have that disconnect from one environment being totally foreign to the other.
In Scandinavian countries, particularly Finland and Norway, while they still have prisons, they are far different from the sort of prisons in Australia. The executive advice to prisons in that society is to make the conditions in prisons as close as possible to those in the community.
Prisoners have the same access to social services, education, health and visitation rights. Prisoners’ families can come to visit them. Not only for an hour at a time, they can stay for the whole weekend in accommodation that’s located in the prison. This is to try to normalise their integration and their path back into society.
Their view is that when people are in prison, their punishment should be the deprivation of liberty. It shouldn’t be all these other incidental hardships that prisoners experience.
There’s the total loss of privacy, a significantly higher chance of being raped or beaten while they’re in prison, and also, there’s a total disconnect from any amenities that are available in the community.
What most people, and certainly many politicians, don’t seem to realise is that prison is only a temporary measure to stop people from reoffending. Ninety nine percent of people who go to prison in Australia get out.
While we can be confident when they’re in confinement they don’t offend, when they do get out, there’s very little thought and planning into how we are going to deal with these people and the consequence of that.
What this technological process does, it also forms plans in terms of what’s going to happen to these people when they are released from these sanctions. And what we do know, from similar sort of sanctions overseas and interventions here, is that they’re far more likely to not reoffend, than what is currently the case.
After release, a prisoner’s ability to secure employment is reduced, along with their lifetime earnings and life expectancy. Would this system counteract these outcomes?
We think it would. The most wide-ranging study that’s be done on prisoner mortality in Georgia -where there was a survey of about 26,000 prisoners over 15 years – found that if you did spend time in prison, the chance of dying within a 15 year time span afterwards was nearly 50 percent higher, than other people in the community.
By contrast, with people that have been subject to other types of sanctions, such as home detention, the mortality rate is almost identical.
So we’re very confident that if this sanction was imposed, those other incidental hardships and deprivations that prisoners are subjected to would also be diminished. Which they ought to be. I mean, the pain and the hardships that we as a community appropriately impose on people when they go to prison is the deprivation of liberty. And it’s a real hardship and a significant deprivation.
All these other incidental deprivations, they’re unintended and they’re unfair. They’re futile and unnecessary.
In Australia today, there’s an increasing amount incarceration, which is coinciding with a reduction in crime.
There’s not a reduction. It’s coinciding with an increase in crime. For example, in Victoria we now have the highest crime rate for over a decade. We’re also the jurisdiction where we have the most rapidly increasing incarceration rate.
So we’ve got increasing prison rates and also increasing crime rates. And it’s not surprising, empirical data shows that you can’t imprison your way into community safety. So you’ve got to be far more methodical, strategic and evidence-based in terms of the way you deal with crime and sentencing.
The best way to reduce crime in our streets is exactly what our governments do on our roads, for example speed cameras. You put in place interventions so that people believe there is an increased likelihood that if they do something wrong, they’ll get caught.
If you put a police officer on every corner the crime rate will drop to negligible standards. And that’s what needs to happen.
There actually needs to be more monitoring by police, more police on the streets and more CCTV cameras. If people know where these cameras exist, you will reduce crime.
That’s the way to reduce crime, it’s not by increasing penalties and putting more people in gaol.
Your project at Swinburne University is advocating for a more evidence-based approach to sentencing. Can you outline what this entails?
We are trying to close the gap that currently exists between what the empirical and scientific data says we can achieve through sentencing people, and what we currently do. We’re trying to debunk myths that currently exist in our criminal justice system.
One example, is that general deterrence works, it doesn’t. Another one being that specific deterrence works, it doesn’t.
We’re also trying to introduce more evidence-based methods for ensuring that people – when they do get out of gaol or their other sanctions expire – are less likely to reoffend. So we’re looking at improved rehabilitative techniques that will work.
The core activity of that is trying to close that gap. And the reason why it’s so hard to close that gap, is because criminals don’t have any political capital: politicians don’t care much about them. And also, there’s not a lot of community sympathy for criminals. We understand that.
Therefore, this tough on crime agenda is allowed to go on unabated in the community. And as for politicians, one way to get re-elected is to make sure they’re seen to be tough on crime.
That has a powerful negative effect on the community, and that’s what’s happening now. And that powerful negative effect, comes first and foremost, in terms of the cost paid by the community to put people in prison.
Now it’s become prohibitive. The first $200 that we pay in tax goes towards supporting the prison population. It doesn’t go towards health or education.
The number of prisoners on remand in this country has increased by a staggering amount over recent years.
What do you think about this situation where a large amount of unsentenced people are being detained?
In some circumstances, there is a need to put people in remand, even if, they haven’t been convicted, as there’s demonstrable risks of committing crime in the future.
But the remand decisions that are currently made in Australia, are made with almost no empirical validation whatsoever.
What needs to happen is a clinical-based risk assessment which has got an actuarial foundation to be done on all prisoners that courts are contemplating placing on remand.
There are risks and needs assessment tools that apply in some countries, such as New Zealand. They’re increasing used in the US. They’re sometimes used in Australian courts to determine if someone should get a community service order.
But those risk and needs assessment tools haven’t been inducted into the Australian environment. If we are going to put people on remand, we need to do it in a far more methodical and accurate way, than the current situation.
In addition to that, the reason why there is so many people on remand, and the remand population has increased, is because the government isn’t properly resourcing the courts.
In Victoria, for example, the delays between being charged and having your case heard in court is a minimum of two years. That’s ridiculous. It is absolutely outrageous that person that has been charged with a criminal offence, should have to wait more than two years to have their day in court.
It is a fundamental violation of the right to a steady trial.
If the government does place people on remand, which in some circumstances they are fully entitled to – because the risk and needs assessments will indicate that it ought to be the case – it should be a corresponding obligation of the government to have a steady trial.
Trials shouldn’t take two years. It should take two months.
And lastly, there’s a huge over-representation of Indigenous people in Australian correctional facilities.
What is it about the Australian criminal justice system that’s causing this? And is there a way out?
There is a way out. There’s an indirect discriminatory aspect of the sentencing system, which applies disproportionately against Indigenous offenders: the weight placed on prior convictions.
Prior convictions in all jurisdictions in Australia have an enormous impact on penalties. For example, an accused person who’s been charged with their first burglary won’t go to gaol. A person charged with their tenth burglary will go to gaol.
Prior convictions can make the difference between gaol and no gaol, and they very often do. But they shouldn’t.
Prior convictions shouldn’t have anywhere near the weight they do in the sentencing calculus. People, when they go to court, should be sentenced only toward the offence at hand, not for their prior convictions or previous character.
One reason why Indigenous offenders are 13 times over-represented is because they tend to have more prior convictions, but often for relatively minor offences.
And because of that, they’re sentenced to gaol for relatively minor offences. That shouldn’t happen.
Prior convictions should not be activating penalties. That would mean lower level criminal offenders wouldn’t go to gaol, in particular Indigenous Australians.
The other thing that we should do, is we should recognise that there is a direct link between poverty, social disadvantage and crime.
All over the world, people that come from socially disadvantaged communities commit more crime, than people from wealthier parts. We don’t know why that is.
But we suspect that people from the poorer parts of the community have less opportunities to do otherwise, than people from wealthier parts. And poverty itself leads to frustration. It can lead to resentment. It can lead to a desire to lash out. Because people aren’t part of the establishment.
It’s easier to comply with the law if you are actually part of the establishment or part of the flourishing social sector, than if you are poor.
In recognition of that, social deprivation should be an accepted demonstrated mitigating factor. So that people, for example, Indigenous Australians, when they go to court, they should receive a lower sentence than other Australians.
What I’ve been saying is that sentences should be 25 percent lower. They should get a 25 percent reduction in their sentence compared to other Australians.
Now the High Court to some extent has recognised that social disadvantage should be a mitigating factor, that’s the case of Bugmy.
But courts don’t apply that in a tangible way. They say, “Yes. We’ll recognise that and give you a discount.” But the discount is never mathematically stipulated.
What should happen is that legislation should intervene and put a mathematical and tangible discount to significant social deprivation in the sentencing calculus.
Like it does with people pleading guilty. People in all jurisdictions throughout Australia, if they plead guilty, get a discount. And it is mathematically computed. Normally about 25 percent.
They need to make the discount for significant social disadvantage work exactly the same way, because it’s even more important than pleading guilty.
Professor Bagaric thanks very much for this informative interview. And best of luck with your endeavours to reform the criminal justice system.
Thanks very much.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.