Andrew Leigh

FUTURES OF SENTENCING AND INCARCERATION WORKSHOP

University of Queensland, 1 August 2018

I acknowledge the traditional owners of the land on which we meet today and pay respects to elders past and present.

My focus on mass incarceration is not as a lawyer or as a justice scholar. In fact, it is now a little over 20 years since I did my last day in the law. I finished up as Michael Kirby's Associate in the middle of 1998. My focus instead is as an economist who is concerned about the issues of poverty, disadvantage and inequality in Australia. It is becoming increasingly inescapable that you can't take a serious look at inequality and deep poverty in Australia without understanding what's going on with mass incarceration. In order to put a picture of what's going on together, I went back to trace the trends on the rates of incarceration in Australia. And in this, I also want to acknowledge the economist Saul Eslake who has helped build the long-run series back to 1900.

These days, the Australian Bureau of Statistics measures incarceration as a share of the adult population. But because of data limitations, I’m going to discuss today the incarceration rate as a share of the total population. In 1900, just a generation after the end of transportation, Australia incarcerated 0.126% of the population. By 1920, that had more than halved to 0.051%. It stays at about that level over the course of the next seven decades. Indeed, as recently as 1990, Australia's incarceration rate was only 0.077%. But in 2000, it had risen to 0.113%. By 2010, it was 0.133% - a doubling in just two decades. One of the first private member’s motions I moved was in 2011, on the topic of reducing crime and incarceration. Since then, the incarceration rate has risen by one-quarter, to 0.167%. That is the highest rate since Federation.

Of course, these numbers are larger still as a share of the adult population - which is the better metric. Latest Australian Bureau of Statistics figures put the share of adults behind bars at 0.219%. 

Incarceration rates are dramatically higher for the Indigenous population. When the Indigenous Deaths in Custody report was handed down in 1991, the incarceration rate was 1.74% of Indigenous adults. Today, it is 2.47%. In Western Australia, the Indigenous incarceration rate is over 4%. Put another way, more than one in 25 Indigenous Western Australian adults are in jail today.  

High incarceration rates are an Indigenous issue, but they are not just an Indigenous issue. Nationally, Australia’s incarceration rate remains below the rate in the United States (although then Northern Territory’s rate of nearly 1% of adults is similar to US levels). But we have a higher incarceration rate than many advanced nations, among them Britain, France, Canada, Japan and Germany.

As I was in Canberra yesterday about to board my flight to come up here, I ran into a Coalition MP. I told him that I was coming up to talk at a forum on mass incarceration and the challenges of reducing the prison population. He said, "well that's easy, they should stop committing as many crimes”. I told him that Australians have already tried that. In the last two decades, our murder rate is down by a third. Our armed robbery rate is down by a third. The rate of car thefts is down by two thirds. Not all categories of crime are lower than a decade ago, but most have declined. The rise of incarceration is mostly attributable to changes in sentencing policy to bail and remand laws.

The impact of incarceration is significant on families. One US study says that when a father is behind bars, the chances of his family falls into poverty goes up by 40 per cent. We know on average prisoners have one child, so a prison population of 42,000 means there's 42,000 Australian children today who have a parent behind bars.

What do we do about it? I’m mostly here to listen, and to report back your ideas to my colleagues, particularly Shadow Attorney General Mark Dreyfus and Shadow Justice Minister Clare O’Neil. But from the standpoint of an inequality-focused economist, a few ideas occur to me.

• We need a stronger national debate over the challenge of incarceration. I was particularly struck by a presentation I attended by Bruce Western a couple of years ago in which he showed the statistic that if you're an African American male who didn't finish high school, your chances of being behind bars before middle age are two in three. We need to remember that incarceration costs around $300 a day, more than the price of a hotel room in the nice city.
• We also need better data in order to better illustrate those problems. That means in particular, longitudinal studies where we are able to look at the lifetime impact of incarceration and the true extent of recidivism.
• It would be useful to have more structured debate over the use of technology - the extent to which smart use of tracking devices can reduce incarceration, rather than simply adding to it.
• We do want to have a more comprehensive conversation over mandatory sentences and the implications that take away judicial discretion can have, such as the examples in the Northern Territory of people going to jail for something as trivial as stealing a bottle of water.
• The use of jail to punish fine defaulters has been an approach taken by a number of Australian states which has led to deaths in custody. Labor took a proposal of an fine enforcement collection scheme to the last election, suggesting that states should be able to use the tax system in order to recover unpaid fines.
• I’m also drawn to the notion that Mark Kleiman articulates of a trade-off between certainty and severity. While a 20 year sentence costs the community twice as much as a ten year sentence, I don’t think there are many people who would believe that it has twice the deterrent impact. While the promising results of Hawaii’s Project HOPE haven’t been fully replicated in other contexts, the approach of making sure that punishment is swift and certain has a great deal of appeal to me.
• Finally, as somebody who has just written a book called Randomistas, you’d be disappointed if I didn’t tell you that I think we need more randomised trials. There may also be some role for drawing together the evidence, as the Washington State Institute of Public Policy has done, as blue ribbon panels in other contexts have done, in order to create a strong evidence base about what works.

Thanks very much.

WEDNESDAY, 1 AUGUST 2018

Authorised by Noah Carroll, ALP, Canberra