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picture of Professor Mirko Bagaric

Professor Mirko Bagaric

Mirko Bagaric is an Alfred Deakin Professor and Chair in Law at Deakin Law School. 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.

This article was originally published in The Australian on 17 June 2016.

The social institution that has remained the most resistant to change is prison. For hundreds of years the standard approach to dealing with serious criminals has been to lock them behind high, impenetrable walls.

The momentous changes that have occurred in every other area of human endeavour, including medicine, engineering and communications, have bypassed the sentencing system.

In one respect this is not surprising. Prisoners have no political capital and engender no community empathy, and hence there has never been a calculated effort at 'expertising' the manner in which we deal with criminals. New research findings regarding the extent of suffering caused by prison also mean that it is no longer morally tolerable to maintain the current bedrock of our approach to sentencing.

The striking paradox to emerge is that two of the most innovative and intelligent nations on earth are miles ahead in the pitiable race to implement the most unfair and inefficient sentencing systems. The 'tough on crime' mantra that has so overwhelmed criminal justice policy in the US and Australia for the past four decades and has so unhinged the community from evidence-based reform that the harm stemming from imprisonment is now being felt by the wider community.

The US, with an imprisonment rate of more than 700 per 100,000 adults, has become the world’s leading incarcerator, and by a considerable margin. The cost of this is $US80 billion ($108bn) annually, or $US260 per capita, and is no longer sustainable for even the world’s biggest economy. Incredibly, California and 10 other states spend more on prisons than higher education.

Australia is following this dismal path with more enthusiasm than any other developed nation. For the first time in history, we have reached an incarceration rate of more than 200 per 100,000 adults, which represents a threefold increase in three decades. We are also woefully inefficient at incarcerating offenders.

It costs us $100,000 a year per prisoner compared with only $31,000 in the US, meaning that we are also paying a massive toll for the runaway growth in prison numbers. The prison budget is so high that it is diminishing the capacity of these governments to provide important social services of the highest quality to their citizens in the form of health and education.

Moreover, prison walls can’t negate the irreducible truth that prisoners feel pain. And it emerges that the suffering inflicted on them is far more intense than has been previously recognised.

Emerging research shows that the human rights infringements that are an incident of imprisonment almost certainly inflict more suffering than being denied one’s liberty.

Prisoners cannot engage in meaningful family relationships. They are far likelier to be beaten or raped than other members of the community. And their ability to secure employment after release is diminished, as are their lifetime earnings. Their life expectancy is considerably reduced.

Collectively, the curtailment of these rights is so oppressive that it would be untenable for a democratic government to pass a law expressly limiting these interests. The fact these deprivations occur in a prison, which involves a near total infringement of the right to liberty, makes them even more morally repugnant. The hurt we inflict on prisoners is far more profound than is appreciated.

The most lamentable aspect of this picture is that there is very little upside to the massive growth in prison numbers. About half of the inmates in American and Australian prisons are there simply because they have committed crimes that make the community annoyed and a tad angry as opposed to offences that considerably damage people.

'Do the crime, do the time' is the reflexive dismissive response to any progressive sentencing gesture. I agree. But the time that must be done must be commensurate with the seriousness of the offence. Time served beyond the gravity of the offence is simply the gratuitous infliction of wanton suffering and is akin to punishing the innocent. And it is at this point that the collective moral conscience of Americans and Australians is profoundly blemished. We are marred by our intellectual laziness and preparedness to strip an individual of nearly all rights once we find them guilty of a crime — any crime.

The fundamental failing of our sentencing system stems from our unremitting disregard for the universal principle of proportionality, which requires there to be at least approximate equivalence between the harm caused by the crime and the pain inflicted by the punishment.

Emerging empirical evidence suggests that the crimes that cause the most damage to individuals are serious sexual and violent offences. Victims often find it very difficult to recover from these crimes. These crimes are deserving of stern sanctions, including imprisonment. Other crimes generally cause far less harm. The suffering of even a short prison term far outweighs the damage caused by most fraud, dishonesty, migration, public order and drug offences.

Yet about half of the offenders in Australia and the US who are wantonly and dismissively shunted to prison are not locked up for serious sexual or violent offences.

The only solution is a bifurcated system of punishment that would see serious sexual and violent offenders sent to prison but nearly all other offenders dealt with by less serious forms of sanctions. This would save the taxpayer billions of wasted dollars, reduce institutional suffering and make the community even safer — if some of the prisons savings went into additional policing.

Mirko Bagaric is the director of Centre for Evidence-Based Sentencing at Deakin University.