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Current imprisonment rates, future forecasts and security issues –Implications for Australian Prison Systems

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Title: Current imprisonment rates, future forecasts and security issues –Implications for Australian Prison Systems


1
Current imprisonment rates, future forecasts and
security issues Implications for Australian
Prison Systems
  • Professor David Brown, Law Faculty, University of
    NSW

2
Introduction
  • Introduction meanings of security
  • Current trends in crime and imprisonment
  • Prospects of reversing the expansion of
    imprisonment
  • Performance indicators related to security
  • Terrorism and terrorist trials and their effect
    on prison regimes

3
Introduction
  • Meanings of security?
  • Narrow means by which prisoners are contained.
  • Broader freedom from danger, risk etc. safety
    Macquarie Dictionary.
  • NSW DCS Mission statement To manage offenders
    in a safe, secure and humane manner and reduce
    the risks of reoffending

4
Introduction
  • Report on Government Services 2008, Corrective
    services objectives are to
  • Provide a safe, secure and humane custodial
    environment
  • Provide an effective community corrections
    environment
  • Provide program interventions to reduce the risk
    of re-offending

5
Crime rates Source AIC Australian Crime, Facts
and Figures 2007
6
Crime rates Source AIC Australian Crime, Facts
and Figures 2007
7

8
Imprisonment rates
9
Imprisonment rates
10
Imprisonment rates
11
(No Transcript)
12
International comparisons
  • United States 738 per 100,000 pop
  • Russia 611
  • South Africa 335
  • New Zealand 186
  • United Kingdom 148
  • Australia 126
  • China 118
  • Canada 107
  • Italy 104
  • Germany 95
  • France 85
  • Sweden 82
  • Norway 66
  • Japan 62
  • Indonesia 45
  • India 30
  • Source Walmsley, World Prison Population List,
    7th edn. www.prisonstudies.org

13
Prospects of reversing prison expansion Lacey,
The Prisoners Dilemma (2008)
  • Laceys argument Liberal democratic criminal
    justice should aspire to be reintegrative and
    inclusionary rather than stigmatising and
    exclusionary.
  • What are the institutional pre-conditions for
    realisation of penal moderation and inclusionary
    practices?
  • Socio-cultural, political and economic variables
    affecting capacity to deliver inclusionary
    criminal justice policies in different forms of
    democracy

14
Prospects of reversing prison expansion
  • Comparative analysis to explain penal tolerance
    and severity significant national differences cf
    sweeping analyses of late modernity
  • Utising Cavadino and Dignam and Hall and Soskice,
    Lacey highlights the liberal/co-ordinated market
    economy distinction.

15
Prospects of reversing prison expansion Source
N. Lacey, The Prisoners Dilemma (2008) p60
16
Prospects of reversing prison expansion
  • Key factors
  • The structure of the economy
  • Levels of investment in education and training
  • Disparities of wealth
  • Literacy rates
  • Proportion of GDP on welfare
  • Co-ordinated wage bargaining
  • Electoral systems
  • Constitutional constraints on criminalisation
  • Institutional capacity to integrate outsiders

17
Prospects of reversing prison expansion
  • The relatively disorganised, individualistic
    liberal market economies particularly vulnerable
    to penal populism
  • Co-ordinated systems which face long term
    relationships through investment in education
    and training, generous welfare benefits, long
    term employment relationships -have been able to
    resist the powerfully excluding and stigmatising
    aspects of punishment cf liberal market systems
    oriented to flexibility and mobility turn to
    punishment as a means of managing an excluded
    population.
  • Garlands culture of control a product of the
    dynamics of liberal market economies

18
Prospects of reversing prison expansion The US
  • Estimating the impact of incarceration on crime
    the US case.
  • Between 1970-2005 628 increase prison pop
  • 2005 1.5 million in US prisons and 750,000 in
    local jails.
  • Spelman 10 higher incarceration rate 4 drop
    in crime rate.

19
Prospects of reversing prison expansion
  • Between 1990-2005 crime rate fell to lowest point
    in 30 years (FBI stats).
  • On Spelmans analysis 25 of this drop explained
    by increasing incarceration rate.
  • 75 due to other factors.
  • Researchers have identified these other factors
    as

20
Prospects of reversing prison expansion
  • Fewer young people in population
  • Smaller urban populations
  • Decreases in crack cocaine markets
  • Lower unemployment rates
  • Higher wages
  • More education and high school graduates
  • More police per capita
  • More arrests for public order offences
  • Source Steman, Vera Institute Report,
    Reconsidering Incarceration January 2007.

21
Prospects of reversing prison expansion
22
Prospects of reversing prison expansion
  • The pivotal question for policy makers is not
    Does incarceration increase public safety? but
    rather, Is incarceration the most effective way
    to increase public safety?

23
Prospects of reversing prison expansion
  • The emerging answer to the rephrased question is
    no. Analysts are nearly unanimous in their
    conclusion that continued growth in incarceration
    will prevent considerably fewer, if any, crimes
    and at substantially greater reduced cost to
    taxpayers. In the future, policing strategies,
    unemployment, wages, education, and other factors
    associated with low crime rates may account for
    more significant reductions. Yet policy and
    spending for public safety continue to focus
    heavily on imprisonment, effectively limiting
    investment in these promising alternatives. Vera
    Institute (2007, p2)

24
Prospects of reversing prison expansion
25
Prospects of reversing prison expansion
  • Pratt on Scandinavian exceptionalism
  • Low rates exceptional prison conditions
  • Origins in cultures of equality
  • welfare state universal social security
  • high levels of trust and solidarity
  • bodily punishments scaled down or abolished

26
Prospects of reversing prison expansion
  • Strong state bureaucracies with considerable
    autonomy and independence from political
    interference
  • Strong interventionist central state
  • mass media controlled by public organisations
  • High levels of social capital
  • Power and influence of expertise

27
Performance indicators measuring security
objectives
28
Performance measures assaults in custody
29
Performance indicators apparent unnatural
deaths, five year trends
30
Performance indicators hours out of cell
31
Performance indicators employment
32
Performance indicators cost per
prisoner/offfender
33
Performance indicators prison utilisation
34
Performance indicators escapes/absconds
35
Performance indicators completion of community
corrections orders
36
Terrorism/terrorist trials - effects on prison
conditions/policies/ design
  • 1. Introduction
  • the distorting effects of a hyper-politicisation
    of criminal justice enacted under the spectre of
    terrorism. (Hicks, Thomas, Haneef , Ul Haque and
    Benbrika).
  • Politicisation of the law making processes
  • Tight executive control minimising legislative
    input
  • Attempt to keep draft legislation secret
  • Pressure on States to pass complimentary
    legislation to evade constitutional challenge
  • Politicisation of the content of criminal law
    offences
  • include reference to political motives,
  • drive potential culpability back in time well
    before attempts and conspiracy, what Lucia Zedner
    calls pre-crime.

37
Terrorism/terrorist trials - effects on prison
regimes
  • Politicisation of investigative processes, eg. Ul
    Haque
  • Politicisation of the trial process eg
  • exceptional circumstances for bail
  • holding of remandees in oppressive conditions
    which affect their ability to participate in
    their own trials
  • political vetting of lawyers through requiring
    security clearances
  • withholding information from defence lawyers etc

38
Terrorism/terrorist trials - effects on prison
regimes
  • Politicisation evident in executive responses to
    judicial decisions adverse to the government, eg.
  • Minister Andrews response to Haneef being
    granted bail -revoke his visa
  • the governments response to Thomass acquittal
    on appeal apply for a control order
  • control order against Hicks after a politically
    negotiated plea.
  • Politicisation in the form of judicial submission
    to the claims of terror, eg
  • the readiness of the federal magistrates to grant
    control orders in the Hicks and Thomas cases
  • judgment of the High Court in Thomas where the
    majority was prepared to overturn well
    established limits to executive powers.

39
Terrorism/terrorist trials - effects on prison
regimes
  • Politicisation of correctional processes eg
  • Benbrika case - Bongiorno J - an unfair trial
    because of the whole circumstances in which they
    are being incarcerated at HMP Barwon and the
    circumstances in which they are being transported
    to and from court (R v Benbrika and Ors 2008
    VSC 80 20 March 2008 para 91).
  • Ul Haque case - a form of political theatre

40
Terrorism/terrorist trials - effects on prison
regimes
  • Events surrounding these cases illustrate the way
    that the spectre of terrorism and the
    technologies of risk and the politics of fear it
    engenders, have
  • distorted domestic criminal justice processes
    through a profound hyper-politicisation,
  • overreaching claims of executive sovereignty,
  • lack of respect for the separation of powers,
  • political trumping of judicial decisions
  • the use of the criminal process, the courts and
    the correctional system, as a form of political
    theatre.

41
Terrorism/terrorist trials - effects on prison
regimes
  • 2. Effects on Penal regimes
  • Classification NSW has a specific AA (men) and
    Category 5 (women) terrorist classification in
    the Crimes (Administration of Sentences)
    Regulation 2001 Reg 22
  • the category of inmates who, in the opinion of
    the Commissioner, represent a special risk to
    national security (for example, because of a
    perceived risk that they may engage in, or incite
    other persons to engage in, terrorist activities)
    and should at all times be confined in special
    facilities within a secure physical barrier that
    includes towers or electronic surveillance
    equipment

42
Terrorism/terrorist trials - effects on prison
regimes
  • Separation and segregation in separate facilities
    such as Goulburn HRMU or Barwon.
  • Design and regime features which minimise human
    contact, limit exercise and time out of cells,
    limit association between prisoners.
  • The introduction of specific techniques and
    practices such as more frequent and intrusive
    strip searching, the use of Guantanamo style
    orange jumpsuits the use of body belts to foot
    and hand shackles are attached, etc.

43
Terrorism/terrorist trials - effects on prison
regimes
  • upgrading of security and installation of high
    tech security devices. Risk supermax conditions
    introduced and normalised in mainstream prison
    system.
  • Restriction on access to communications,
    visitors, reading matter.
  • Prison design? May lead to target hardening
    prisons or sections of prisons against potential
    external attack, internal revolts, hostage taking
    and escapes.
  • Potential militarisation of prison regimes,
    strengthening of special armed sections or
    units, increased liaison with police and
    military.

44
Terrorism/terrorist trials - effects on prison
regimes
  • 3. Revalorising the role of the supermax
    prison?
  • -US origins of term, 1983 Marion (Roy King in
    The rise and Rise of Supermax An American
    Solution in Search of a Problem? Punishment and
    Society 1(2) (1999) 163-186, see Ghosts of the
    Civil Dead).
  • - US something like 25,000 prisoners are in
    designated supermax facilities cf Europe,
    Australia.
  • supermax obscures the long history of
    secondary punishment, trac, punishment and
    segregation sections and conditions in
    Australian prisons from the penal colonies on.
    Morton Bay, Norfolk Island, through Grafton,
    Katingal, Pentridge, Jika Jika, Goulburn HRMU,
    Barwon etc.

45
Terrorism/terrorist trials - effects on prison
regimes challenges
  • NSW Council for Civil Liberties, Shadow Report
    prepared for the UN Committee against Torture, 27
    July 2007 and the Concluding observations of the
    Committee against Torture in relation to
    Australia , 15 May 2008. The NSW CCL recommended
    that the State party (Australia) invite the
    Special Rapporteur on Torture to visit the
    supermax prison within a prison (HRMU) at the
    Goulburn Correctional Centre. CCL argued
  • the conditions in the HRMU are having an adverse
    impact on the mental health of its inmates
  • That mentally ill prisoners are being placed in
    the HRMU under segregation conditions rather than
    in the specialist acute psychiatric wing of the
    prison hospital at Long Bay. eg.Scott Simpson
    case
  • That those held on terrorism related charges are
    not permitted to see the Official Visitor.

46
Terrorism/terrorist trials - effects on prison
regimes challenges
  • no mechanism for HRMU inmates to challenge their
    placement and continued detention in the
    facility. The courts have no power to intervene
    and the NSW Commissioner of Corrective Services
    has suggested that some HRMU inmates will remain
    in the facility for the term of their natural
    lives.
  • allegations of political interference in the
    running of the HRMU and a constant stream of
    selective government and departmental leaks from
    the HRMU to the popular media.

47
Terrorism/terrorist trials - effects on prison
regimes challenges
  • The UN Committee Against Torture - Concluding
    Observations on Australia, Committee
  • Concerned over the harsh regime imposed on
    detainees in supermax prisons and in
    particular over the prolonged isolation periods
    detainees, including those pending trial, are
    subjected to and the effect such treatment may
    have on their mental health. (p8, para 24)
  • The Committee recommended that the State Party
    should review the regime imposed on detainees in
    super maximum prisons , in particular the
    practice of prolonged isolation (Rec 24). And
    that the Aust government should advise on what
    they done about this within one year.

48
Terrorism/terrorist trials - effects on prison
regimes challenges
  • Proposed ratification by the Rudd ALP government
    the Optional Protocol to the Convention against
    Torture and other Cruel, Inhuman of Degrading
    Treatment or Punishment (OPCAT) entails
    obligation on State Parties to
  • set up, designate or maintain at the domestic
    level one or several visiting bodies for the
    prevention of torture and other cruel, inhuman or
    degrading treatment or punishment national
    preventive mechanisms (NPMs). ( CAT, First
    Annual Report Of The Subcommittee On Prevention
    of Torture 29 April-16 May 2008 para 6).
  • A preliminary guideline requirement for NPMs is
    that
  • the NPM should be developed by a public,
    inclusive and transparent process of
    establishment, including civil society and other
    actors involved in the prevention of torture
    where an existing body is considered for
    designation as the NPM, the matter should be open
    for debate, involving civil society. (ibid, para
    28ii)

49
Terrorism- and prison regimes challenges right
to a fair trial
  • Challenge to meet the Benbrika ruling
  • Bongiorno J ruled that the minimum alterations
    necessary to remove the unfairness currently
    affecting this trial are
  • They be incarcerated for the rest of the trial at
    the Metropolitan Assessment Prison, Spencer
    Street.
  • They be transported to and from court directly
    from and to the MAP without any detour.
  • They be not shackled or subjected to any other
    restraining devices other than ordinary handcuffs
    not connected to a waist belt.
  • They not be strip searched in any situation where
    they have been under constant supervision and
    have only been in secure areas.
  • That their out of cell hours on days when they do
    not attend court be not less than ten.
  • That they otherwise be subjected to conditions of
    incarceration not more onerous than those
    normally imposed on ordinary remand prisoners,
    including conditions as to professional and
    personal visitors. (R v Benbrika 2008 VSC 80
    para 100).

50
Terrorism/terrorist trials - effects on prison
regimes
  • 4. Prisons as incubators of terrorism prison
    conversion
  • sensationalist media coverage of the issue of
    conversions of prisoners to Islam prisoners to
    Islam and potentially to terrorist sympathies
    (especially in relation to Goulburn HRMU).
  • Hard Men Turn to Islam to Cope With Jail,
    Goulburns super mosque, Stephen Gibbs SMH Nov
    19 2005.
  • NSW Corrective Services and the super-max
    jihadis Crikey 23 April 2007.
  • Authorities fear prisoners plotting jail break
    during prayers ABC 23 April 2007.
  • Inmates studying al-Qaeda manual SMH Dec 2007
  • Prisons terrorist breeding grounds The Age
    July 2006.

51
Terrorism/terrorist trials - effects on prison
regimes
  • US -major debate about the role of religion in
    prisons, restrictions on access to the Koran in
    various states and a moratorium on the hiring of
    Muslim chaplains in some. (Columbia Human Rights
    Law Review, 2005-6).
  • British research beneficial effect of conversion
    on inmate behaviour
  • Australian context cynicism over conversions,
    linked to gangs, ethnic streaming and the
    radicalisation of prisoners.

52
Terrorism/terrorist trials - effects on prison
regimes
  • Notion of radicalisation needs deconstructing -
    the radicalisation of prisoners in the 1960s and
    1970s, expressed in riots over prison conditions
    and state brutality which brought about reforms
    in the prison system in many jurisdictions.
  • Through radicalisation that unsafe, insecure and
    harmful prison conditions and regimes are exposed
    and prisoner, prison staff and community safety
    and security enhanced.

53
Terrorism/terrorist trials - effects on prison
regimes
  • Danger to correctional security if Australian
    Corrective Services Departments get caught up in
    the politicisation of criminal justice processes
    around terrorism.
  • Provision of repressive prison conditions
    through lock-down, supermax type regimes, is
  • unlawful in that it infringes the constitutional
    and common law right to a fair trial for
    remandees
  • Infringes International conventions
  • highly counter-productive - legitimates criticism
    and protest against those conditions
  • provides fresh and legitimate grievances to
    disaffected individuals or groups, serves as
    rallying point
  • decreases public and community safety and
    security.

54
Conclusion
  • The current trends in crime -downward for many
    forms of crime, particularly property crime
    international trend eg UK all crime down 48
    1995-2007/08
  • Current trends in imprisonment rates steadily
    increasing, particularly for Indigenous people,
    remandees, and women.

55
Conclusion
  • Prospects of reversing the expansion of
    imprisonment depend at most general level on
    mitigation of neo-liberal political, economic and
    social policies - return to a politics of
    inclusion, social welfare provision and social
    solidarity.
  • Imprisonment rates need to be consciously reduced
    as matter of government planning
  • policy and resources diverted from the custodial
    to welfare, educational and training programs in
    community settings.

56
Conclusion
  • A range of critical security issues facing prison
    systems best addressed by rejecting the narrow
    technical conception of security and focussing on
    agreed upon governmental objectives of
  • Providing a safe, secure and humane custodial
    environment
  • Providing an effective community corrections
    environment
  • Providing program interventions to reduce the
    risk of re-offending.

57
Conclusion
  • In relation to terrorism the challenge is to
    resist the politicisation of criminal justice
    processes
  • ensure legal rights (eg right to a fair trial)
    are respected through safe and humane prison
    conditions for terrorist suspects and indeed for
    all prisoners
  • improve domestic prison inspection mechanisms as
    required under the ratification of OPCAT (WA
    Inspectorate a good model)
  • Comply with CAT recommendation that the State
    Party should review the regime imposed on
    detainees in super maximum prisons , in
    particular the practice of prolonged isolation
    (Rec 24). Do so within 1 year.
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