Editorial by Nicholas Cowdery AO QC FAAL. PRECEDENT, Issue 161, November/December 2020
The catchcry of the Justice Reform Initiative (JRI)(1) launched in September 2020, is ‘Jailing is Failing’. The truth of this statement is clear.
The criminal justice process is an indispensable component of our system of governance. Parliament makes the laws– creates the crimes and prescribes how they are to be dealt with – and public functionaries apply the laws with appropriate discretion in each case.
There will always be crime: the motivations for committing it will be manifold, the impacts will be various, and there will be a range of ways it can be dealt with. We work on the assumption that bad behaviour should be punished.
This issue of Precedent focuses on criminal law and includes accounts of some of the quirks and conundra that can arise. It does not address sentencing in a broad sense, so I am seeking to make up for that (2).
An objective of the laws and processes prescribed should be to criminalise only that conduct which causes harm to society, and to avoid adding harm to that already inflicted by the criminal offending. One way of achieving the latter is to work harder at preventing crime in the first place, through reforming offenders and dealing with, for example, personal drug crimes and offences by the mentally-impaired as health and social issues rather than criminal issues.
In our present system we rely far too much on imprisonment as a means of dealing with offenders, but resources for prisons are available unevenly and at disproportionate cost to the community. The Australian imprisonment rate (per 100,000 of the adult population) more than tripled between 1985 and 2019, from 66 to 223;3 among comparable OECD countries it is now third behind the USA and New Zealand (4). The overall Australian prison population has increased by 50 per cent since 2000 (5).
Prison hasn’t been able to reform offenders mainly because the necessary resources have not been applied to relevant programs. It doesn’t deter offenders: the recidivism rate (offenders returning to corrections within two years) is 55 per cent. Seventy-three per cent of prison entrants have been in prison before, 32 per cent of them at least five times (6).
The largest cohort of prisoners is from disadvantaged and marginalised groups in society, including those without access to adequate education, individuals with a mental or cognitive disability, and First Nations (7) people. Women are the fastest-growing cohort – most have committed non-violent offences and many are themselves victims of horrific domestic abuse. While they are incarcerated, their children often become the next generation of offenders (8). Victims of crime are often dissatisfied with custodial outcomes for offenders. Prisons cost Australian taxpayers $3.6 billion per annum ($110,000 per annum per prisoner on average)(9).
Jailing is failing all of those groups.
The JRI is supported by more than 100 patrons, including eminent Australians such as two former governors-general, former members of Parliament, academics, respected Aboriginal and Torres Strait Islander leaders, and former senior judges, along with many other individuals and organisations.
The JRI will reveal how high prison numbers undermine community safety. It will show that governments can improve public safety and community strength by introducing more effective alternatives to incarceration, based upon real evidence. Some of those will be directed towards crime prevention (such as justice reinvestment and drug law reform) and some towards non-custodial outcomes for offenders (with supervision and real reform programs). Bail law reform will be part of it.
This is not a prison abolitionist movement. It is recognised that there is a role for prisons but not for the numbers and types of prisoners presently incarcerated.
I urge you to look out for the JRI and join our national conversation to reduce our over-reliance on prisons in Australia.
Notes: 1 www.justicereforminitiative.org.au. 2 It is timely that the ALA has teamed up with the JRI and Centre for Innovative Justice at RMIT University for three webinars in November 2020 and early 2021 that look at alternative ways of dealing with punishment in specific circumstances. 3 Justice Reform Initiative, The State of the Incarceration Nation: A Briefing to Australia’s Members of Parliament (Report, 6 September 2020) 1. 4 Ibid, 4. 5 Ibid, 1. 6 Ibid, 5. 7 Ibid, 1–2. 8 Ibid, 2–3. 9 Ibid, 2.
Nicholas Cowdery AO QC FAAL is a former Director of Public Prosecutions for NSW and a Director of the Justice Reform Initiative.