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
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(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

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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
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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

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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.

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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?

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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)

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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.

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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.

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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.

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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.

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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.