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There's no need to be locked in to failed ideas

By Greg Barns, The Mercury, 20 February 2023

IT IS hard to think of a greater failure in public policy than the criminal justice system, in particular the use of imprisonment.

It is economically inefficient, exacerbates crime rates, creates a huge social cost, and warehouses individuals in the prime of their life.

This is why the announcement last week of a Legislative Council inquiry into the use of imprisonment and youth detention is critically important.

It promises to shine a light on this great policy failure.

The Legislative Council committee looking at the issue has broad terms of reference. It is an inquiry into “Tasmanian corrective services and justice system matters related to adult imprisonment and youth detention”, and will look at issues such as why the prison population in this state keeps rising; rehabilitation or lack thereof; and how, if we must have prisons and places of detention, they are wellness centres in every sense of the word, not simply “modern-day’’ Port Arthurs.

To those who say prison is meant to be tough and that it is important to deter people from committing crimes by ensuring prison is an option, the answer is that such views are misguided, to put it charitably.

The cost to the community of imprisonment outweighs, by a country mile, the perceived benefits.

The Legislative Council inquiry is more than timely. Last week public policy analyst Martyn Goddard published data showing that imprisonment rates in Tasmania have risen by 15.2 per cent in the period 2011 to 2021. And Goddard reminds us of the Productivity Commission data showing the cost of keeping a person in jail per year is $141,000. For what? As an investment this $141,000 is a dud.

Eric Reinhart, from Harvard University, has put it in a recent article published in the prestigious New England Journal of Medicine: “[H]istory has shown repeatedly that violence produces more violence, punishment more punishment, and harm more harm.”

The cost to society of practices in prisons such as isolation, lockdowns, under-resourced health care and minimal education opportunities is self-evident.

Then there is the cost to families, particularly children. Families are broken up by imprisonment, and the state bears the cost of this dislocation.

There is also the economic cost to society. As the great US judge Richard Posner has argued, why lock up for lengthy periods individuals who could otherwise be skilled and trained to take up employment opportunities and therefore contribute to society?

But there is a chance to move Tasmania from being another example of criminal justice policy failure to one that leads this nation in reducing the use of detention and which focuses on cheaper and much more effective non-custodial alternatives.

As Pat Burton from the national Justice Reform Initiative (disclaimer: this columnist is a patron and also chair of the Prisoners Legal Service) said last week about the Legislative Council inquiry: “I think that now could be the opportunity to redesign the way we do justice in this state based on the advice of the people at the coalface including offenders, victims and practitioners.

“For example, we could look at youth detention in Spain, sentencing reform in Scotland, progressive and professional prisons in Scandinavia, youth diversion in New Zealand, youth justice reinvestment programs in Kansas, and problem-solving courts based on therapeutic jurisprudence both here and overseas.”

One immediate reform that would alleviate pressure on the prison system would be to abolish prison terms for those who do not need to be there.

As Goddard says: “Most people sent to jail do not pose any significant risk to the community’s safety. People imprisoned for offences such as fraud, theft, drugs, public order and traffic violations account for half of all people in Australian prisons on an average day.”

Then there are those who breach their parole by committing minor offences or failing a drug test.

That almost half the prison population should not be there at all is not a “bleeding heart” view. It is one that the Institute of Public Affairs, a Right-of-centre think-tank, has posed in a recently published research paper.

That paper found that 42 per cent of those serving prison sentences have not committed violent or sexual offences.

The author of the paper, Mirko Bagaric from Swinburne University, says that even allowing for keeping serious fraud and serious drug offenders in prison, you could release offenders, which would “result in an annual taxpayers saving of approximately $1.25bn”.

Of course none of this means we should tolerate criminal and anti-social activity.

What it does mean, however, is that – and this is particularly the case with short jail terms of less than 12 months – there are far more effective community-based ways of addressing the causes of that activity.

The Legislative Council inquiry has a chance to expose and hopefully be a catalyst for ending the all-too-ready resort to imprisonment and detention in Tasmania. Our community deserves smart justice, not failed “tough on crime’’ politics.


Hobart barrister Greg Barns is a human rights lawyer who has advised state and federal Liberal governments.

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