Australian Prison Security and Future Imprisonment Rates

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

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

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”

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

Crime rates : Source AIC Australian
Crime, Facts and Figures 2007

Crime rates: Source AIC Australian
Crime, Facts and Figures 2007

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

Prospects of reversing prison expansion :
Lacey, The Prisoners’ Dilemma (2008)
• Lacey’s 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

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.

Prospects of reversing prison expansion: Source:
N. Lacey, The Prisoners’ Dilemma (2008) p60
Country Imprisonment rate Per 100,000
2006
homicide rate (%) Foreign Prisoners
%
Co-ordination
index rating
(0-1)
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
6.4
3.3
9.3
13.6
19.5
0.00
n/a
0.21
0.07
0.36
Conservative corporatist (Co-ordinated market economies)
Netherlands
Italy
Germany
France
128
104
94
85
1.51
1.5
1.15
1.71
31.7
33.2
28.2
21.4
0.66
0.87
0.95
0.69
Social democracies (Co-ordinated market economies)
Sweden
Denmark
Finland
Norway
82
77
75
66
1.1
1.02
2.86
0.95
26.2
18.2
8.0
17.2
0.69
0.70
0.72
0.76
Oriental corporatist (Co-ordinated market economy)
Japan 62 1.05 7.9 0.74

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’

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.
• Garland’s ‘culture of control’ a product of the dynamics of
liberal market economies

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.

expansion
• Between 1990-2005 crime rate fell to
lowest point in 30 years (FBI stats).
• On Spelman’s analysis 25% of this drop
explained by increasing incarceration rate.
• 75% due to other factors.
• Researchers have identified these other
factors as:

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.

expansion

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?”

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)

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

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

Performance indicators measuring security
objectives

Performance measures : assaults in custody

Performance indicators: apparent unnatural
deaths, five year trends

Performance indicators: hours out of cell

Performance indicators: employment

Performance indicators: cost per
prisoner/offfender

Performance indicators: prison utilisation

Performance indicators: escapes/absconds

Performance indicators: completion of
community corrections orders

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”.

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

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 government’s response to Thomas’s 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.

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’;

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.

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”

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.

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.

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.

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.

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.

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.

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)

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).

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, Goulburn’s
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.

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.

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.

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.

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.

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.

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.

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.

Australian Prison Security and Future Imprisonment Rates

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