The shibboleth ‘tough on crime’ is one politicians find quite appealing. The problem is that being tough – without being smart and effective – makes the community less safe and also costs money better spent on other services that have been squeezed dry by the global financial crisis.
California, for example, enacted the toughest ‘three strikes’ law in the United States. Not only did juvenile offenses count as strikes but the third strike could be a conviction of any felony. For instance, a 17-year-old who stole bicycles from two attached garages and at age 18 stole a candy bar could be sentenced to life in prison. How could that be? Felony strikes under that state’s law included not only violent crimes but ‘serious’ offenses as well such as residential burglaries. Once convicted of a theft crime for which jail time was imposed, any future theft can be charged as a felony. Thus, the juvenile convictions for two residential burglaries, serious felonies that were strikes, and the theft of the candy bar was a felony so the Three Strikes law applied.
The California Supreme Court upheld such sentences for an offender who stole a slice of pizza and another who stole a DVD as the third strike. It was a distraught father whose daughter was murdered by a recent parolee who led the fight to enact the Three Strikes law. He also led the fight to modify it last year when he learned of the incredible human and economic cost the law had brought. Even the prison guards’ union supported the modification.
When prisons became so overcrowded in California that inmates were triple bunked in cafeterias, lawsuits challenging such conditions were brought against the authorities. Another major lawsuit challenged the lack of mental health treatment in custody. Thirty percent of California’s prison population of 119,542 (about the population of Darwin) has a mental illness. Despite spending upwards of $8.6 billion on prisons every year, the lack of services got so bad that two years ago the US Supreme Court, hardly a bastion of soft-on-crime adherents, found the inhumane conditions constituted ‘cruel and unusual punishment’ in violation of the 8th Amendment of the US Constitution. The District Court judge’s order requiring better services and the release of 30,000 prisoners to ease overcrowding must be complied with by December 2013. Failure to do so will subject the governor and other authorities ‘individually and collectively’ to a finding of contempt of court.
‘Catch and Release’
In South Australia the ‘tough on crime’ rhetoric reached a crescendo when then Treasurer and Deputy Premier Kevin Foley said the way to address jail reform was to ‘rack ‘em, pack ‘em and stack ‘em’ in prison. He said he and his party were ‘clearly walking the walk on law and order.’
The general public’s support for such rhetoric is waning in Australia and abroad. The proportion of Australians who agree that stiffer sentences are needed has gradually declined. Few offenders receive a life term; most serve their sentence and return to the community. Do they return ready to reintegrate and become productive? Alas no, and the community knows it. ‘The majority of Australians have little or no confidence in the prison system to rehabilitate prisoners (88 per cent), as a form of punishment (59 per cent) or in teaching prisoners skills (64 per cent).’
The current criminal justice system of ‘catch and release’ is expensive and ineffective. While incarceration temporarily contains the problem it does not act as a general deterrent nor does it guarantee a crime-free life for those who experience it. More than one third (39 per cent) of Australian prisoners are re-arrested and returned to correctional services within two years of their release.
There are many strategies to address this problem, from reduction of the prison population through community corrections to justice reinvestment initiatives. It is clear that people who end up in prison have social deficits that must be addressed if there is a hope of keeping them out of custody. Australian prisoners are economically disadvantaged, stigmatized, experience social exclusion and have poor physical and mental health. These problems are exacerbated when the offender is Aboriginal.
Substance Abuse and Offending
Alcohol and other drugs it seems fuel crime worldwide. The tangible costs attributable to alcohol and illicit drugs in Australia each year are around $19 billion.10 According to the Australian Institute of Criminology, a number of recent Australian studies have found strong links between illicit drug use and offending among both adult and juvenile prisoners.11 In New South Wales, for example, burglars using heroin commit a median of 13 burglaries per month.12 Although drug users constitute two thirds of the prison population,13
few prisons adequately address dependence. One glowing exception is the Compulsory Drug Treatment Correctional Centre in Sydney.14 In 2006 the NSW Drug Court, Justice Health Services and the Department of Corrective Services developed the first penal institution in Australia focused on treatment and recovery.
However, in-custody treatment is just a first step. While treatment can begin in prison, social reintegration into the community to which the offender returns is a must. A supportive environment with clean and sober housing, outpatient chemical dependence treatment and other ancillary services are necessary if these persons are to stay out of custody. Upon exit from prison there should be a reintegration plan, agreed to by the offender, which addresses these concerns.
The most effective criminal justice initiative in decades, drug treatment courts (DTC), began in Australia in 1999. The first drug treatment court started and is still going strong in Parramatta, NSW. Two other sites in that state also have drug treatment courts. Lawyers in Wollongong are currently pushing for a fourth NSW court to be established there.15 Adelaide opened its first Drug Court in 2000. All but one state or territory has at least one drug court. There are other ‘solution focused’ courts in Australia that concern mental health, Aboriginal sentencing issues (the Nunga Court in Adelaide and the Koori Court in Melbourne), youth and, soon, child abuse and neglect issues, with a family drug treatment court pilot planned for Melbourne from 2014. The Victorian Association of Drunk and Drug Driver Services held a conference last year to look at the development of an impaired driving court initiative.
Originally published in the Australian journal Insight in 2013.
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