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O'Toole, Sean --- "Prisons: The politics of punishment" [2002] AltLawJl 86; (2002) 27(5) Alternative Law Journal 242

The politics of punishment

SEAN O’TOOLE[*] questions the validity of law and order policy in crime prevention and examines the negative impact of prison on offending behaviour.

Over the past decade the political will to make society safer and more productive by lowering crime rates has been accompanied by a deeper hidden cost. That cost is represented by our prison system. If prison is the answer to serious law and order issues (and for the most serious offenders it is still ultimately all we have) we are not going to win the war on crime. The solutions to crime are not contained in prison or even in community-based sanctions. We have enough evidence and it has been accumulated over the last 200 years, to prove that the prison doesn’t solve crime.

The political will needs to refocus on social solutions to crime prevention to move the debate away from the criminal justice system. These solutions, however, are not available as a quick-fix and they will not yield immediate results — they may even take a generation to develop.

As spending on prisons, policing and the court system absorbs an increasing share of government funds we are seeing some danger signs that the very systems which can prevent crime are suffering. More prisons and police inevitably come at a cost and that cost may be school closures, declines in public health care and other basic social services. We have seen this occur in real terms in the United States where in California, government spending in 1981 included 3% for prisons and 18% for education. Two decades later this had reversed to 8% on prisons and 8% on education.[1]

In the past decade there has been a hardening of law and order policy in most industrialised countries around the world. Because prison is still regarded as the ultimate sanction for law breakers, increases in prison populations around the world have been the common outcome.

A world view of the prison

The world now has more than eight million prisoners and while it is widely accepted that the United States criminal justice system is spiralling out of control with the incarceration of two million of its citizens, what is equally alarming is the rise of incarceration in countries such as Sweden, the Netherlands and Germany, whose prison systems were once looked on as progressive alternatives.[2]

My research on prisons throughout the world[3] has uncovered several common themes arising from this move to a greater use of incarceration. The first issue that confronts all jurisdictions is the fact that we can’t build enough prisons to keep pace with the political will to incarcerate. Consequently we see overcrowding of the existing facilities with the resultant problems in the areas of inmate management and security and the inevitable demise of important prisoner programs.

The second theme to emerge is the over-representation of indigenous populations throughout the world. They are inevitably joined by increasing numbers of what we term ‘young offenders’ and those with some form of mental illness. The rise of drug abuse in the latter part of the 20th century throughout the western world has resulted in a prison population where the majority of inmates have a history of substance abuse. Prison administrations throughout the world all watch each other carefully and have a habit of adapting innovative techniques and practices to suit local conditions. Unfortunately, solutions for these problems are unlikely to emerge.

In recent years we have seen the effective demise of the concept of rehabilitation as the central tenet of our criminal justice system. It is arguable that retribution has now become the system’s major driver. The concern that this raises is whether the nature of the punishment experienced by the offender will bring about reform of their character and in turn benefit society on their return. The irony of the swing away from rehabilitation is that whatever the driver for the punishment we must accept that approximately 99% of offenders will return to the community. Surely the ideal is to have them do so as productive and functional members of society and not as a continuing threat to other law-abiding citizens.

For many years now we as a society have demanded the ‘magic box’ solution to crime. We insert the offender in the box (the prison), press program and some years later extract a compliant citizen. The truth is that prisons don’t deter criminals and they don’t rehabilitate. They are often colloquially (and accurately) described as universities of crime, promoting hardness of character, anti-social tendencies and in the worst cases functioning as a temporary warehouse for society’s problems.

It is a myth that humane treatment of prisoners and favourable prison conditions detract from prisoner involvement in potentially beneficial programs. Prisoner programs (such as work, education, psychological analysis, counselling etc) are a proven major means of reform and rehabilitation. Prisoners who are warehoused and serve their time in harsh regimes cannot easily adapt their behaviour to encompass the benefits these programs offer. If we abandon the notion of reducing re-offending behaviour in favour of more punitive sanctions we do so knowing the offender will be ill equipped to eventually return to the community.

There are no real public debates about the proper role for prisons. One of the problems with the widespread acceptance and development of programs for inmates is that prison officials are not good at getting public support for these treatment initiatives. By not being able to sell to the public and the media the benefits of meaningful work opportunities and access to education for prisoners they reduce the options for prisoner re-socialisation.

Governments need to present a realistic view of the prison if only because of the continuing waste of public money and the futility it represents. Australia-wide about $2 billion is spent on prisons and as a means of dealing with crime from a deterrent/punishment/rehabilitation perspective they are not effective for the majority of prisoners.

Comparing crime in 1900 to today

One of the common recurring themes in the public debates about prisons is the theory that we are becoming a more violent and dangerous society and that crime rates are continually spiralling. This rhetoric, particularly in the popular media, only serves to fuel the law and order debate and escalates public fear about crime. The reality is really quite different and a most useful comparison can be made between the sort of society we have today and that which existed 100 years ago. Along the way in an analysis of this kind we can see what the real crime trends have been in the past century.[4]

The first thing we can say with certainty is that society today is much less violent than it has ever been and the average Australian citizen is measurably safer than their ancestors from 1900. Indeed the further back we go the more dangerous it was.

Crime has decreased largely because we now have much better social conditions. People can get access to jobs and education and we have social security safety nets and healthcare available for the disadvantaged. It may be stating the obvious but this has not always been the case. One thing we can say with certainty is that we live in the information age and it is this access to information which misleads us as to the extent of crime. It is a fact that violent crime is very newsworthy and most news headlines in the print and electronic media focus attention on violent crime when it happens.

A good example of this is the crime of homicide. The fact is that almost all homicides are reported and investigated, so homicide as a study of crime trends presents us with a reliable indicator of crime rates over the course of the past century. Homicide data has always been readily and consistently available. We have had about 300 cases of homicide in Australia each year since the 1950s (this is despite the overall population increase). Two-thirds of homicides occur in residential settings, the victims are killed with a knife and 80% of those involved know the victim. Coincidentally there has been a decline in the use of firearms in homicide cases in recent decades. In 1915 the homicide rate was 1.8 per 100,000 of population; in 1998 it was 1.6 per 100,000.

It is probably worth putting the Australian experience into perspective against world trends. We can say that the countries with the greatest rates of homicide are Russia, Mexico and Croatia. On the next level down we have the United States (still four times higher per head of population than Australia). On the third level we have Canada, New Zealand, Europe and Australia. Safer again are Japan, Norway and Ireland. What does this demonstrate? We can say with some certainty that contemporary Australian society is not violent in world terms and certainly not in historical terms.

One overriding fact that we can draw from an analysis of the crime of homicide is that more police, greater technology, longer prison terms and even the spectre of the death penalty have had no effect whatsoever on the crime of homicide — in any country in the world.

The media/political crime agenda

Our current prisoner population is nearing the levels of 1900, despite the fact that we have much less crime. This is as a direct result of the media/political crime agenda. In the period from 1920 to about 1980 (before the hardening of our policies and the current law and order debate) we consistently had about one-third less prisoners per head of population than we have today.

Of prisoners who commit an offence involving violence 70% have a drug problem. Of prisoners who commit a property offence 86% have a drug problem. Alcohol was and still remains a major contributor to crime of all kinds in all categories.

Despite the fact that crime rates are low in relative terms and that we are incarcerating offenders at an increasing rate, we now have 50% more police per 100,000 of population than we had in 1900. In addition we have a police force that has changed markedly in profile and capacity to solve crime. Police are now recruited for their mental qualities as well as their physical fitness. In 1900 the major criteria for the job were purely physical.

Another myth perpetrated in this debate is that if we lock up more offenders we will lower the crime rate. This theory is unproven and dangerous as it comes at a cost when all of those who have been incarcerated are eventually released.

The fact is that not much crime is ever solved. We know that about 30% of crime is reported to police, the police tell us that about 10% of crime that is reported is solved but how many of those cases result in a conviction in court? Overall we probably have a detection–conviction rate of less than 1%![5]

If we accept that the law and order debate is about crime prevention then we must consider that crime is not solved by sending more people to prison and by keeping them there for longer sentences. Crime prevention starts in schools, with social welfare agencies, with community services and with the way we approach our urban architecture and the design of communities. Crime prevention and law and order has more to do with education, health, housing, community services and with stabilising the family unit than it ever will with the police, the court and the prison system. The move down the path of retribution will not give us the kind of society we want. Ironically, despite the massive and continuing investment in dollars and human resources the path to crime prevention probably has almost nothing to do with the criminal justice system.

[*] Sean O’Toole has worked in various criminal justice agencies over the past 15 years and has been a designated detective, a policy analyst and an educator.

This is a summary of a short course he recently conducted at Sydney University.

© 2002 Sean O’Toole

[1] Coyle, A., ‘A World View of Imprisonment at the End of the Twentieth Century’, (1997) 110 Prison Service Journal.

[2] Walmsley, R., ‘World Prison Population List’, Research Findings of the British Home Office, 1999.

[3] O’Toole, S. (ed.), Corrections in Australia, Butterworths, 2002.

[4] Graycar, A., ‘Crime in Twentieth Century Australia’ in Year Book-Australia 2001, Australian Bureau of Statistics, 2001.

[5] Biles, D., ‘Emerging Issues in Criminal Justice’, Seminar Paper NSW Corrective Services Academy, 2001.

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