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

Imprisonment rates

International comparisons United States 738 per 100,000 pop Russia611 South Africa335 New Zealand186 United Kingdom 148 Australia126 China118 Canada107 Italy104 Germany 95 France 85 Sweden 82 Norway 66 Japan 62 Indonesia 45 India 30 Source: Walmsley, World Prison Population List, 7 th edn. :

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 CountryImprisonment rate Per 100, homicide rate (%)Foreign Prisoners % Co-ordination index rating (0-1) Neo-liberal countries (Liberal market economies) USA South Africa New Zealand England/Wales Australia n/a Conservative corporatist (Co-ordinated market economies) Netherlands Italy Germany France Social democracies (Co-ordinated market economies) Sweden Denmark Finland Norway Oriental corporatist (Co-ordinated market economy) Japan

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’

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 % increase prison pop million in US prisons and 750,000 in local jails. Spelman : 10% higher incarceration rate – 4% drop in crime rate.

Prospects of reversing prison expansion Between 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:

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.

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?”

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)

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

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

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”.

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

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 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.

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 March 2008 para 91).  Ul Haque case - a form of ‘political theatre’;

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.

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”

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.

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.

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) , 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.

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 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.

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.

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.

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)

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).

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, Goulburn’s super mosque’, Stephen Gibbs SMH Nov –‘NSW Corrective Services and the super-max jihadis’ Crikey 23 April –‘Authorities fear prisoners plotting jail break during prayers’ ABC 23 April –‘Inmates studying al-Qaeda manual’ SMH Dec 2007 –‘Prisons ‘terrorist breeding grounds’ The Age July 2006.

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, ). British research –beneficial effect of conversion on inmate behaviour Australian context cynicism over ‘conversions’, linked to gangs, ethnic streaming and the “radicalisation” of prisoners.

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.

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.

Conclusion The current trends in crime -downward for many forms of crime, particularly property crime – international trend –eg UK all crime down 48% /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.