THE LIMITED BENEFIT OF
IMPRISONMENT AND THE EMERGENCE
OF JUSTICE REINVESTMENT POLICIES
EMERITUS PROFESSOR DAVID BROWN,
LAW FACULTY, UNSW
INTRODUCTION
THREE THEMES
1. Recognising social determinants as well as
individual culpability
2. Linking criminal justice and political economy
3.
Inserting criminal justice into a social democratic
narrative
Theme 1 :Recognising social determinants as
well as individual culpability
 Doctrinal criminal law and popular debate over
crime located primarily at level of individual action,
characterised in terms of culpability/responsibility,
guilt, ‘evil’.
 Set of wider discourses which locate causal or
precipitating factors in social, cultural, economic
and political forces beyond the individual.
 To point to the social determinants of crime not
inconsistent with holding offenders accountable
THEME 2 : Linking criminal justice and political
economy: International imprisonment rates
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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
Theme 2 Linking criminal justice and political
economy. N. Lacey, The Prisoners’ Dilemma (2008) p60
Country
Imprisonment rate Per 100,000
2006
homicide rate (%)
Foreign Prisoners %
Co-ordination
index rating
(0-1)
6.4
3.3
9.3
13.6
19.5
0.00
n/a
0.21
0.07
0.36
31.7
33.2
28.2
21.4
0.66
0.87
0.95
0.69
26.2
18.2
8.0
17.2
0.69
0.70
0.72
0.76
7.9
0.74
Neo-liberal countries (Liberal market economies)
USA
South Africa
New Zealand
England/Wales
Australia
737
336
186
148
125
5.56
55.86
2.5
1.6
1.87
Conservative corporatist (Co-ordinated market economies)
Netherlands
Italy
Germany
France
128
104
94
85
1.51
1.5
1.15
1.71
Social democracies (Co-ordinated market economies)
Sweden
Denmark
Finland
Norway
82
77
75
66
1.1
1.02
2.86
0.95
Oriental corporatist (Co-ordinated market economy)
Japan
62
1.05
Theme 2: Linking criminal justice with
political economy
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’
Theme 2: Linking criminal justice with
political economy
 The relatively disorganised, individualistic liberal
market economies particularly vulnerable to penal
populism -‘liberal/co-ordinated market economy’
distinction.
 ‘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.
Theme 2 Linking criminal justice with
political economy: Pratt on Scandinavian ‘exceptionalism’
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
Pratt on Scandinavian ‘exceptionalism’
– 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
Comparative imprisonment rates: Victoria
Australian imprisonment rates 100,000 adults in 2009
 NT
657.6
 WA
260.5
 NSW
204.1
 QLD
167.9
 SA
155.1
 TAS
139.5
 VIC
104
 ACT
74.8
 AUST
174.7
(Victoria Sentencing Council 2010 based on ABS)
Theme 3: Inserting criminal justice into a social
democratic narrative : Kevin Rudd, The Monthly 2009
 ‘Social justice is also viewed as an essential component of the
social-democratic project. The social-democratic pursuit of social
justice is founded on a belief in the self-evident value of equality,
rather than, for example, an exclusively utilitarian argument that
a particular investment in education is justified because it yields
increases in productivity growth (although, happily, from the point
of view of modern social democrats, both things happen to be
true). Expressed more broadly, the pursuit of social justice is
founded on the argument that all human beings have an intrinsic
right to human dignity, equality of opportunity and the ability to
lead a fulfilling life. ...Accordingly, government has a clear role in
the provision of such public goods as universal education, health,
unemployment insurance, disabilities insurance and retirement
income.’
Theme 3: SITUATING CRIMINAL JUSTICE IN A SOCIAL
DEMOCRATIC NARRATIVE
The global financial crisis provides an opportunity for a rethink in
criminal justice policy as part of a more general reconsideration
of the excesses of neo-liberalism. Rather than simply engage in
market intervention solely to stimulate demand and ‘business as
usual’, attempts should be made to restructure and regulate the
market in social directions, requiring greater environmental
sustainability, reducing income differentials, curbing cultures of
greed and gambling in the financial sector, re-configuring the tax
system in a progressive direction and investing in public transport
and other infrastructure promoting community based sharing
networks which are not based on a constant increase in
consumerism, consumption and narcissism.
THEME 3: SITUATING CRIMINAL JUSTICE IN A SOCIAL
DEMOCRATIC NARRATIVE
Criminal justice should be part of this broadly social democratic
narrative. Criminal justice issues need to be connected with
broader social and economic policies. Aspects of this connection
might involve a range of tasks such as :
 rerouting penal policy from the exclusive terrain of individual
culpability, so familiar in tabloid, talk-back and political discourse;
 linking criminal justice with political economy and inequality;
 Recognising the limited benefits of imprisonment
 exploring a range of developments in ‘justice reinvestment’;
redirecting resources from the burgeoning prison sector into
practical assistance with ex-prisoner resettlement;
THE LIMITED BENEFITS OF IMPRISONMENT
 Does incarceration of offenders increase or decrease crime?
 Methodological difficulties :
– ‘simultaneity’ –prison affecting crime/crime affecting prison
– Left out variables
– Difficulty of comparisons where prisons used differently (eg
proportion of drug offenders)
– Measurement errors
 2 main measures –’elasticity’ –percentage change in crime rates
associated with 1% change in prison rate
- ‘marginal effectiveness’ – number of crime
prevented by putting one more offender in prison
The Limited benefits of incarceration
 Benchmark study –Spelman -10% increase in imp rate
produces 2-4% decrease in crime rates.
 NSW BOCSAR (2006) would need to increase number of
burglars imprisoned by 34% to get a 10% reduction in
burglary (at a cost of $26 million per annum.
 Problem with these studies - don’t take into account the
potential effect of imprisonment as a factor which might
increase criminal behaviour post release.
The Limited benefit of imprisonment
 Effects of incarceration itself – ‘crime education’;
fracturing of family and community ties; hardening
and brutalisation; effects on mental health.
 Post incarceration effects- labeling; deskilling;
reliance on criminal networks; reduced
employment opportunities; civil disabilities.
 Third party effects –on families and communities.
Criminogenic effects of incarceration
 ‘Tipping point’ research :
‘high rates of imprisonment break down the social and
family bonds that guide individuals away from crime,
remove adults who would otherwise nurture children,
deprive communities of income, reduce future income
potential, and engender deep resentment toward the
legal system. As a result, as communities become less
capable of managing social order through family or social
groups, crime rates go up’ - Rose and Clear
Criminogenic effects of incarceration
 ‘Mass imprisonment’ argument – rates way above
historical norm and fall disproportionately on particular
(often racial) groups such that the effects cease to be
explicable in terms of individual offending and involve
whole communities.
 Imprisonment ‘becomes part of the socialisation process.
Every family, every householder, every individual in
these neighbourhoods has direct personal knowledge of
the prison – through a spouse, a child, a parent, a
neighbour, a friend. Imprisonment ceases to be a fate of
a few criminal individuals and becomes a shaping
institution for whole sectors of the population. ‘ (Garland)
Criminogenic effects of incarceration
 Mass imprisonment argument applies to
Indigenous Australians
 normalisation, transmission and reproduction of
imprisonment
 Levy -20% of Aboriginal children have a parent or
carer in prison
 Incarceration one more contributor to social
dysfunction –weakening communities and
reducing social capital
The racial component in Imprisonment rates
Indigenous imprisonment rates
 AboriginalImprates2008AIC.pdf
 Indigenous Australians 1 in 4 of prison population
 2000- 2008 imp rate for Indigenous increased by 34%
from 1,653 per 100,000 Indigenous adults to 2,223
 Increase 7 times that of non-Indig -123 to 129 per
100,000
 BOCSAR 1 in 4 young Indig men are being processed
through the crim justice system every year
 Estimated that in 5 young Indig males under some form
of criminal justice supervision
The limited benefits of imprisonment –
reformulating the question
 reformulate the key question –Vera Institute ‘the
pivotal question for policymakers is not ‘Does
incarceration increase public safety, but rather is
incarceration the most effective way to increase
public safety?’
 redirecting resources from the burgeoning prison
sector into justice reinvestment policies and to
practical assistance with ex-prisoner resettlement
to reduce recidivism rates
‘Justice reinvestment’
 Calculates public expenditure on imprisonment in
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localities with high concentration of offenders and diverts
a proportion of that expenditure back into programs and
services in those communities.
US developments –Council of State Government Justice
Centre -US state expenditure on corrections risen from
$12 billion to $52 billion 1988-2008.
Half of those released reincarcerated within 3 years
Prison reductions in some US states –New York 20%
2000-2008; New Jersey 19% 1999-2009
Support from business leaders PEW Foundation Report
Right-Sizing Prisons 2010
‘Justice reinvestment’
 UK developments –House of Commons Justice
Committee –Cutting Crime: the case for justice
reinvestment (2010)
 ‘Channel resources on a geographically targeted basis to
reduce crimes which bring people into the prison system’
 ‘crim justice system facing a crisis of sustainability’ –
prison as a ‘free commodity’ while other rehab and
welfare interventions subject to budgetary constraints’
 Recommended capping of prison pop and reduction to
2/3 current level and devolution of custodial budgets financial incentive for local agencies to spend money in
ways which will reduce prison numbers
‘Justice reinvestment’
 Senate Legal and Constitutional Affairs Committee
Report Access to Justice 2009 Rec 21 ‘the federal, state
and territory governments recognise the potential
benefits of justice reinvestment, and develop and fund a
justice reinvestment pilot program for the criminal justice
system.’
 Aust 2008-09 $2.79 billion on prisons, $205 per prisoner
per day
 Spatial dimension –US ’million dollar blocks’ –’millions
are being spent on the neighbourhood but not in it’
 Papunya NT -72 adults in prison at cost of $3,468.960 for
community of 400 people.
‘Justice reinvestment’
 Devolving accountability and responsibility to the local
level
 Data driven –’incarceration mapping’ – linked to ‘asset
mapping’ eg Vinson’s ‘post codes’ cf ‘hot spot’ mapping
 Links with National Indigenous Law and Justice
Framework 2009-2015
 Queensland Justice Agreement –specific goal to reduce
the rate of ATSI people incarcerated by 50% by 2011.
Conclusion
 Prospects of reversing the expansion of
imprisonment depend at most general level on
mitigation of neo-liberal political, economic and
social policies – argue for a politics of inclusion,
social welfare provision and social solidarity –
renewal of social democracy
 Imprisonment rates need to be consciously
reduced as matter of government planning;
 Imp rates not just an aggregation of individual
criminal acts but artifacts of social, economic and
political and legal policy
Conclusion
 Recognise limited benefits of imprisonment and the
criminogenic effects of incarceration
 Adopt justice reinvestment approaches
 policy and resources diverted from the custodial to
welfare, educational and training programs in community
settings.
 D. Brown, ‘The Limited Benefit of Prison in Controlling
Crime’, Contemporary Comment, Current Issues in
Criminal Justice, Vol 22 No 1, July 2010, 461-473
 See also the Australian prison project:
http://www.app.unsw.edu.au/