Victoria’s prisons are reported to be the most violent in the country, as an overcrowded system struggles to house a growing prison population. Prison officers are reportedly assaulted every three days and inmate fights occur daily. Prison guards are to trial capsicum spray in response.
This should not come as a surprise. The Victorian Auditor-General found in 2012 that the system was near capacity. Last year, the Ombudsman warned that violence was a natural consequence of overcrowding.
Imprisonment rates across Australia have risen dramatically in recent times. In the traditionally low-imprisonment state of Victoria, the prison population grew by 38% in the ten years from 2002 to 2012. The growth accelerated between 2009 and 2014, with the number of prisoners increasing by 40% in five years.
“Law and order” political agendas have reduced judicial sentencing discretion, phased out suspended sentences and restricted the availability of bail and parole. We built more prisons, but even then shipping containers and fold-out beds were needed to warehouse the overflow.
Penal populism has trumped evidence-based policy. The previous Coalition government seemingly disregarded its own Sentencing Advisory Council’s conclusions about the ineffectiveness of prison in reducing crime.
Local statistics also run counter to encouraging international trends. These suggest that the world’s 200-year honeymoon with the prison may be ending.
In the US, the global financial crisis brought into sharp relief the costs of hyper-incarceration, especially of African-Americans. Suddenly, even conservatives questioned why housing felons should divert funds away from schools and roads. The mounting evidence that prison is ineffective in deterring and rehabilitating criminals, and that incarceration itself may increase the risk of re-offending, was finally heeded.
The new Victorian Labor government has tentatively signalled the need for change. Yet it too clearly fears electoral backlash and has conceded that prison populations are likely to continue to rise.
Both sides of politics have invested huge political capital touting the prison as the solution to crime. The Australian public responded too well and the punitive cycle escalated.
How do we now un-sell this expensive, ineffective and cruel form of punishment?
Punitiveness and the national identity
The pull of punitivism is a legacy of Australia’s colonial history. As Robert Hughes argued in The Fatal Shore, in the early days of the colony any infraction of the rules was viciously punished, and this knee-jerk punitiveness maintains its hold in contemporary Australian discourse about punishment.
The Royal Commission into Aboriginal Deaths in Custody, for instance, drew connections between Australia’s early dispossession of Indigenous people and their high levels of incarceration. Punitiveness is also evident in offshore processing of asylum seekers in prison-like conditions (perhaps not surprising, given the employment of former prison staff in the centres) deemed inhumane by the United Nations.
In Australia, dubious utilitarian ideologies about general deterrence, with imprisonment its ready touchstone, prevail. In pandering to public punitiveness, politicians have forgotten a countervailing strand in Australia’s history and national identity: innovation.
Australia and penal innovation
The great English judge, Lord Denning, was once asked about innovative sentencing options. He noted that the last major innovation was probably “transportation”. That, he quipped, had worked out rather well.
In the 18th century, Australia was the great social experiment. The world watched to see if this society of convicts could fashion a new social order.
Acute labour shortages were the impetus for another innovative sentencing option, the Ticket of Leave scheme. This allowed convicts to complete their sentences working and living in the community. The scheme kept the fledgling colonial economy afloat and is reputedly the forerunner of parole and probation schemes internationally.
Australian contributions continue to be influential. John Braithwaite’s ideas about re-integrative shaming – a shift away from punitive social control to approaches that shame the offender but simultaneously offer re-integration into the community — have spawned an entire “alternative” system of restorative justice processes all over the world.
Appeal to Australia’s nationalist pride in its history as an innovator may untie the prison’s shackles. While far from perfect, the emerging technology of electronic monitoring may present a publicly acceptable alternative to prison.
The rise of electronic monitoring
Electronic monitoring was initially developed as a behavioural-modification tool in experimental and clinical psychology. The technology has been applied to criminal justice since 1983, when a New Mexican judge, inspired by a Spider-Man comic, ordered its use to track probationers.
Nowadays, electronic monitoring takes various forms across the world. These typically involve offenders being fitted with tamper-proof bracelets. The devices monitor whether offenders are abiding by conditions, such as geographical constraints, curfews, attending work or study, or abstaining from drugs or alcohol.
Electronic monitoring can be used pre-trial, as a primary sentence or post-sentence. It operates in each form in Australia.
To date, however, electronic monitoring has not really been countenanced as a legitimate, large-scale alternative to divert offenders away from prison. Victoria’s brief use of home detention initially aimed to do this, but public criticism that it was “too soft” led to its removal from the statute books in 2012. It remains an optional condition that may be imposed under a community correction order.
Any alternative to prison must be seen to satisfy sentencing’s twin objectives of punishing offenders and protecting the community. The research on electronic monitoring’s impact on crime is still inconclusive, but the indications are that, in many cases, it likely meets these purposes as well as, or even better than, prison.
In its first guideline judgment, Victoria’s Court of Appeal recently recognised that even in cases of relatively serious offending, properly conditioned sentences served in the community can both appropriately punish offenders and protect the public.
On its face, electronic monitoring also has lower operational costs than prison. However, once rehabilitation services are factored in, savings are more properly couched as reducing the costs of re-offending.
Electronic monitoring, like all punishment, is imperfect. Failure is built into any system that tries to control and regulate human behaviour.
The technology is prone to failure. There will be inevitable scandals when human cunning and system break downs lead to spectacular breaches. Electronic monitoring also presents significant net-widening and net-strengthening challenges (that is, more people are subjected to intensive forms of criminal justice control).
These negative effects are hard to overcome and any policy and research agenda must address these. But a “one size fits all” approach to punishment, like prison, is unacceptable.
Is prison’s time nearly up?
It is time for a more open dialogue about the risks and limitations of all forms of punishment. We need calibrated and nuanced community-based options to meet the specific circumstances of each offender and their crime. A bipartisan preparedness to raise the level of public debate about the full gamut of options should replace the invocation of prison as a “quick fix” for both crime and electoral popularity.
The days of the prison, an 18th-century industrial institution, as the dominant form of punishment are probably numbered. Electronic monitoring is one option more compatible with the 21st-century virtual age, in which containment and isolation need not be physical to be effective.
Jeremy Bentham, the architect of the prison and the great-grandfather of utilitarianism, understood that:
… all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.
For better or worse, electronic monitoring probably is our best, albeit imperfect, opportunity to reframe a public dialogue about the purposes, risks and relative costs of punishment.
You can read other articles in the Beyond Prison series here.