Imprisonment Achieves More Than You Think

Prison is the university of crime. Prison is a revolving door. Prison punishes an offender’s family more than it punishes the offender. Prison brutalises offenders. Prison fails to rehabilitate offenders. Prisons are expensive failures.

All of these aspersions, and more, are thrown at prisons. All of them contain at least a grain of truth. But they do not tell the whole story.

Productivity Commission research paper

On October 29, 2021, the Productivity Commission released a research paper, Australia’s Prison Dilemma. The paper is a largely dispassionate discussion about the three competing objectives of a criminal justice system: making the community safer; ensuring justice and fairness for victims and offenders; and promoting community confidence in the criminal justice system.[1] As an example of these three objectives coming into conflict, the commission comments that “a long prison sentence might meet the community’s desire for justice for victims, but be excessively harmful for offenders and their families”.[2]

You do not have to read far in the commission’s paper to find that the commission has a rather dim view of imprisonment. On page 3:

Prisons are expensive, costing Australian taxpayers more than $5 billion per year, or more than $330 per prisoner per day. In contrast, alternative punishments, such as community corrections orders, may have much lower costs. A community corrections order can cost as little as $30 per prisoner per day …[3]

Note that the commission compares the average cost of a prisoner per day with the lowest cost per day of a community corrections order.[4]

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Later in its paper the commission attempts to quantify the costs and benefits of avoided crimes in Australia. In regard to the crime of robbery/extortion, for example, the commission calculates that savings achieved by imprisoning a perpetrator of such a crime range from $3,869 to $26,654 but that the cost of imprisoning such the offender is $315,497. The commission warns that its estimates are “subject to a range of caveats” but nevertheless asserts that “the estimates produced provide indicative values and provide some partial information about the order of magnitude of the value of prison”.[5] The commission’s implication is clear: imprisonment is not good value for money.

The commission highlights data showing that Australia’s imprisonment rate has grown faster than the average rate across OECD (Organisation for Economic Co-operation and Development) countries.[6] Between 2013 and 2018 only Turkey and Colombia had imprisonment rates growing faster than Australia’s. The commission does not, however, also highlight that, according to the same data, the imprisonment rate of the United States has been falling since 2013. The commission’s data shows that the United States locks up over 600 people per 100,000 of population. The precise figure, in December 2019, was 629 per 100,000 of population, down from 731 in 2010. In contrast, the imprisonment rate in Australia in June 2018 was 172 per 100,000 of population, up from 135 in 2010, but down from June 2020 when it was 160.[7]

Why are the US and Australian imprisonment rates starting to fall? Could it be that, at least in part, and over a long period, imprisonment actually reduces crime?

The commission canvasses the possibility that imprisoning criminals causes crime rates to fall:

The juxtaposition between rising imprisonment and falling crime rates suggests several possibilities:

• • increasing imprisonment caused falling crime rates
  • the Australian criminal justice system has become more punitive over time
  • changes to the characteristics of offenders and/or the composition of crime have resulted in a higher chance of imprisonment among a shrinking pool of offenders.

It is likely that all three have contributed to the decline in crime rates over the period.^[8]

But the commission then dilutes its guardedly positive statement about imprisonment by referring to research results which, according to the commission, “suggest that the risk of imprisonment had only a small additional effect on crime rates once the risks of arrest and conviction were taken into account, and sentence length had no significant impact”.[9] One wonders how efficacious arrest, conviction and sentencing would be if imprisonment were removed from the mix. A criminal justice system without prisons would be like a health system without hospitals.

The commission makes much of a graph which shows that, from 1920 to 2020, whereas the number of homicides in Australia per 100,000 persons fell significantly, the number of prisoners per 100,000 adults rose significantly—until the late 2010s. The commission places the graph on page 2 of its paper, and leads with the graph in a short video included on its website.

Nowhere in the commission’s paper do the words ambulance or emergency department appear. Yet it is highly likely that, in 1920, a victim of a particularly vicious assault would have died and the perpetrator of the assault, if identified, would have been convicted of murder. An identical assault perpetrated in 2020 may instead have resulted in the victim being whisked to hospital in an ambulance and nursed back to full health by medical care far superior to that of one hundred years ago.

Notwithstanding its dim view of imprisonment, the commission concedes that “The literature has consistently found that incapacitation through incarceration leads to significant reductions in crime”.[10] Hence, so far as society is concerned (though not so far as criminals are concerned), imprisonment is no bad thing. Imprisonment may be expensive, but at least it incapacitates criminals while they are serving their custodial sentences.

Suspended sentences

The commission argues that recent policy changes have contributed to increasing punitiveness in Australia’s criminal justice system. Among changes discussed is the phasing out of suspended sentences in New South Wales, Victoria and Tasmania.[11] The commission states that “In Victoria, imprisonment tended to replace suspended sentences (over community correction orders), particularly early on”.[12] In other words, the commission implies that, because suspended sentences are no longer available, magistrates and judges have sentenced more people to prison, hence increasing the punitiveness of the system.

It is not that simple. To see why, we need to consider the effects of two processes known as “sentence escalation” and “net-widening”. I shall consider “sentence escalation” first. In practice, a suspended sentence tends to work like this. An offender is convicted of a crime. The court considers what sentence to impose. The court mulls over the respective merits of imposing a community-based sentence (for example, a community correction order), a custodial sentence (of, say, three months), or a suspended sentence (of, say, twelve months), and settles on the suspended sentence option. In doing so, the court wants the offender to realise the seriousness of his crime, but does not want to send him to prison. The problem is that, in order for an offender to complete a suspended sentence successfully, the offender must be determined to “keep clean”. But many offenders lack such a determination. As a result the offender, in my hypothetical case, lasts, say, two months before being caught for breaching the terms of his suspended sentence. As a result of his breach, the offender then goes to prison for the remainder of his sentence—namely, for ten months (unless remissions apply). So, the suspended sentence of twelve months which, at first sight, seems more lenient than the contemplated custodial sentence of three months, ends up being the harsher—and more expensive—sentence.

Next, consider “net-widening”. Suppose a court is choosing between three possible sentences: a community correction order, a suspended sentence and a custodial sentence. The court decides to impose a suspended sentence. If this option had not been available, which choice would the court have made? We simply do not know. Maybe the choice would have been a custodial sentence, in which case removing the option of the suspended sentence leads to more people in prison, hence making the system more punitive. This is the stance taken by the commission. But maybe the choice would have been a community correction order, in which case removing the option of the suspended sentence leads to fewer people in prison, hence making the system less punitive.

Sentence escalation and net-widening mean that we cannot say, a priori, whether abolishing suspended sentences will increase or decrease the number of offenders being imprisoned. Hence, it becomes a matter of empirical evidence. To back up its stance, the commission references a 2019 research paper by Arie Freiberg. When you look up the reference in the commission’s endnotes, you find that the title of Freiberg’s paper is “Suspended Sentences in Australia: Uncertain, Unstable, Unpopular, and Unnecessary?” That title is hardly a ringing endorsement of suspended sentences. When you go further, and read the Freiberg paper, you find this comment:

In theory, the suspended sentence should divert offenders from imprisonment. In a properly functioning sentencing system, each suspended sentence should result in one fewer person taken into custody. However, the evidence is to the contrary due to the net-widening and sentence-escalation effects of the suspended sentence.

Frieberg’s paper does not, in fact, support the commission’s stance.

Bail and parole

The commission does better when it discusses bail and parole. The commission is justifiably critical of the current under-use of bail and parole.

Over the past four decades, the granting of bail has become much more constrained, resulting in greater numbers of people being remanded in custody. Currently, around one in three persons in custody in Australia is on remand, awaiting trial.[13] The commission notes that “There have been significant amendments to bail legislation in most jurisdictions since their [the Bail Acts] introduction, and the original principles that promoted release on bail have largely been reversed.”[14] The main cause for this shift has been high-profile cases such as the Martin Place siege in December 2014 in which Man Haron Monis, who was on bail at the time, held eighteen people hostage and killed one of them. Legislators often respond to such horrific incidents by making bail harder to obtain. Instead, legislators should try to explain to the public that no bail system will ever be perfect. No matter what bail system you have, some offenders on bail will commit terrible crimes. Magistrates and judges will sometimes grant bail when, with hindsight (a perspective denied to decision-makers), they should not have granted bail.

On October 25, 2021, drug kingpin Mustafa Baluch cut off his ankle monitor and tried to flee New South Wales while on bail. Police took two weeks to track him down. New South Wales Attorney-General Mark Speakman immediately set up an inquiry to review the state’s bail laws. He described the Baluch case as a “poor outcome”. He said he wanted to find if there was a “need for reform”. But Speakman also said that the Baluch case “is against the backdrop of tens of thousands of cases that judicial officers have to determine every year”, and “we have to make sure that a few bad headlines do not lead to changes”.[15] Speakman’s statement was sensible. It was also politically courageous.

Remand is expensive and places alleged offenders into perhaps unwarranted imprisonment. In 2019, in New South Wales, “8.7 per cent of remandees were either found not guilty (2.4 per cent) or had their case dismissed (6.3 per cent)”.[16] Remandees, when convicted of offences, may sometimes already have served sufficient time on remand for them to be released as soon as their custodial sentences are imposed. Other remandees, when convicted, do not receive a custodial sentence.

Parole has suffered a similar fate to that suffered by bail. High-profile cases prompt legislators to constrain parole boards. As with bail, however, legislators should try to explain to the public the merits of parole. Releasing an offender on parole is better, so far as the safety of the public is concerned, than releasing an offender to full freedom at the completion of his sentence. Correctional staff know that, occasionally, a prisoner will choose or contrive to stay in prison until his head sentence is complete so that, when he does leave prison, he will not have to report to a pesky parole officer. Such a releasee is more dangerous to the public, other things being equal, than is a releasee required to keep strict parole conditions.

Criminal menopause

In the Weekend Australian of November 13-14, 2021, the paper’s Social Affairs Editor, Stephen Lunn, wrote an article about the Productivity Commission’s research paper on imprisonment. To introduce his article, Lunn told the story of Claude Robinson, a former prisoner who now runs Rainbow Lodge, a place providing accommodation for recently-released New South Wales prisoners. Lunn wrote that one day Robinson realised, as he observed several older prisoners in the prison yard, “That will be me soon enough.”[17] Robinson’s epiphany occurred at that moment. He asked to see a drug and alcohol officer. With that decision, his rehabilitation commenced.

Robinson’s story reminded me of a theory which one of my colleagues in the Department of Corrective Services (now Corrective Services NSW) used to expound. He said that, in his view, almost all prisoners one day reach what he described as “criminal menopause”. He said that, usually in their mid-to-late thirties, prisoners begin to realise that they have largely wasted their lives, that they can no longer quite match it with the younger criminals, and that crime does not pay much, if at all. At this point, he said, prisoners are ready for the various programs offered by correctional staff. He considered that, before criminal menopause, such programs were largely a waste of everyone’s time, but after criminal menopause real progress could be made. Instead of correctional staff chasing after prisoners to get them to participate in programs, staff should simply wait for criminal menopause to occur and offer assistance then. The whole dynamic of prison programs would change.

My colleague’s theory was a bit extreme, but only a little. Instead of waiting for criminal menopause to occur naturally, implementing good prison programs can sometimes hasten its arrival.

Fletcher is the main character in the television series Going Straight (sequel to Porridge), played by Ronnie Barker. In the first episode of Going Straight, Fletcher makes a point similar to my colleague’s theory about criminal menopause:

Do you know, there’s very few people in prison over thirty-five? Did you know that? Surprising isn’t it. Well, this time, for me it’s not au revoir; it’s goodbye, right. I’m forty-five. Forty-five years of age, and I’ve worked out that I’ve spent about seven days, on average, seven days out of every thirty, in some nick or another. That’s a week in every month, isn’t it. Shocking waste.

Imprisonment is a blunt instrument. It is the equivalent of opening a locked door with a battering ram, rather than with a key. But the battering ram, though unsophisticated, in most cases does eventually open the door. We should continue to strive quixotically to find the equivalent of a key or set of keys to open the “door” inside an offender’s head so that he is able to proceed from court to serve a sentence which will automatically result in a law-abiding life. In the meantime, however, we should give imprisonment its due. Imprisonment usually works, if you keep at it.

Doug Brown is a retired new South Wales public servant

[1]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 14.

[2]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 15.

[3]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 3. On page 7 of its paper, the commission references the Steering Committee on Government Services Provision, 2021, Tables 8A.1 and 8A.19. Table 8A.19 shows that the ‘Total net operating expenditure and capital costs’ per prisoner per day across the six State and two Territory jurisdictions in Australia in 2019-2020 was $331.39.

[4]        The correct term is ‘community correction order’, not ‘community corrections order’ as stated by the commission in the quotation above. See section 8 of the Crimes (Sentencing Procedure) Act 1999 [NSW]. See also Part 3A of the Sentencing Act 1991 [Vic].

[5]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 54.

[6]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 29.

[7]        Institute for Crime and Justice Policy Research 2021, World Prison Brief, https://www.prisonstudies.org/ (accessed 22 November 2021). The Productivity Commission quotes from this source to make a different point – viz, that the imprisonment rate in the Northern Territory is higher than the imprisonment rate in the United States (see page 25 of the commission’s paper).

[8]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 9.

[9]        Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 10.

[10]      Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 51.

[11]      This discussion commences under the heading ‘Recent policy changes have contributed to increasing punitiveness in Australia’s criminal justice system’. See page 12 of the commission’s paper.

[12]      Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 124.

[13]      Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 21.

[14]      Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 121.

[15]      ‘Bail laws to be scrutinised after “contentious” decisions’, Sydney Morning Herald, 11 November 2021, page 8

[16]      Productivity Commission: 2021, Australia’s prison dilemma, Research paper, Canberra, page 41

[17]      The Weekend Australian, 13-14 November 2021, page 17