Newsroom

Connect with us to receive information on courses, news and events. Privacy Policy.

picture of Professor Mirko Bagaric

Professor Mirko Bagaric

Mirko Bagaric is the Dean and Professor of Law at Deakin University. His main work is in the area of punishment and sentencing. He has also written extensively in migration and refugee law and human rights law. His articles have been cited in over 50 court judgments, including the High Court of Australia and superior courts in Canada, Singapore, New Zealand and Ireland.

Originally published in The Conversation on 10 April 2015.

Sometimes you don’t need hindsight to identify broken social and legal policy. Such is the case with Australia’s slide into following the US lead and becoming a nation of captives. A little known, but alarming, fact is that imprisonment numbers in Australia – both the number of offenders incarcerated and the growth in numbers – are now at record highs, and by a considerable margin.

Incarceration rates have fluctuated considerably since federation. At the turn of the 20th century, the imprisonment rate per 100,000 (adult) population was relatively high: 126 persons per 100,000 adults. This dropped to 52 per 100,000 by 1925. Following a period of moderate fluctuation, in the last two decades the prison population has more than doubled: an unprecedented occurrence in Australian history.

The number of prisoners broke through the 30,000 mark for the first time on June 30 2013, at which point the rate of imprisonment was 170 prisoners per 100,000 adults. The current imprisonment rate is 186 per 100,000 people.

In contrast to most other developed countries, this rate is palpably high. The rate in Canada is 118 per 100,000. The incarceration rate in Australia is nearly three times higher than in Scandinavian countries.

Standing apart from these trends is the world’s greatest incarcerator, the United States, which imprisons more than 700 people per 100,000 - an increase of more than 400% in three decades.

While the Australian incarceration rate is low compared to the US rate, we are highly inefficient at locking up prisoners. It costs every state and territory at least A$80,000 to house each prisoner for a year, compared to around A$30,000 in the US. Hence per capita our spending on prisons is significant in relative and absolute terms.

And it is to the US where we should now be looking to ascertain the fall-out from an unabated tough (and dumb) on crime policy. The extensive use of imprisonment in the US has finally reached a tipping point. The community can no longer readily absorb the cost of a US$60 billion annual prisons budget.

Radical measures are being implemented to reduce prison numbers. The most recent is effectively opening the prison gates to release thousands of sentenced offenders.

In April 2014, the US Sentencing Commission voted to reduce the sentencing guideline level for most federal offences of drug trafficking. These changes will apply retroactively, meaning that more than 46,000 prisoners are eligible to have their cases reviewed for a penalty reduction. On average, penalties are likely to be reduced by two years and one month, resulting in savings of approximately 80,000 prison bed years.

Imprisonment isn’t working

Increasing prison numbers might be tolerable if this achieved a positive community outcome. However, the evidence is to the contrary (the author analyses the Australian data in a forthcoming article for the Australian Bar Review, entitled 'Jail Up, Crime Down Does Not Justify Australia Becoming an Incarceration Nation'). It does not reduce the rate of serious crime, discourage potential offenders or reduce re-offending rates.

In many cases, imprisonment is just the wanton infliction of gratuitous punishment by an unthinking legislature and a reflexive judiciary.

Sentencing is the area of law where there remains the biggest gap between what science tells us can be achieved through a social institution (criminal punishment) and what we actually do. We will continue to have a runaway incarceration rate until governments and courts start making evidenced-based policy and sentencing determinations. This would mean imprisonment is essentially reserved for the offenders we have reason to fear or who have inflicted serious suffering on others, not those that we simply dislike.

It is repugnant that more than 40% of prisoners in Australian prisons are serving sentences for non-violent or non-sexual offences. White-collar criminals, drug traffickers and social security cheats irritate us and inconvenience our lives, but they should only go the jail in the rarest of circumstances. The pains of imprisonment are normally a disproportionate response to their crimes.

Time to reverse the trend to excessive punishment

There is also a powerful normative basis for limiting prison numbers. Imprisoning offenders for a moment longer than is necessary to achieve a demonstrated (attainable) objective of sentencing constitutes a violation of one of the most universally held moral norms: the prohibition against punishing the innocent. The violation of this norm is so prevalent in Australia that it is in fact in our prisons where the greatest number of human rights infractions occur.

And this is one problem that is not the total fault of populist politicians. Our courts have considerably contributed to the crisis by unilaterally increasing sentencing tariffs for drug and white-collar offenders over the past decade. This is supposedly in order to deter other offenders.

The strategy has been a brilliant failure. To appreciate the extent of this debacle you don’t need to look out of your window to see that illicit drugs are increasingly available on every street corner. You merely need to ask criminologists, who are overwhelmingly convinced about the failure of general deterrence theory.

Australian governments need to develop a strategy to reduce incarceration numbers to about 100 per 100,000 (consistent with historical trends). Without a systematic overview, the unprecedented increase in incarceration levels has the potential to contribute to a fiscal crisis and an ongoing human rights tragedy, devoid of a principled solution – as we are witnessing in the United States.

The start and endpoint to the solution is to confine jails (almost exclusively) to those we have reason to be scared of: sexual and violent offenders.