Andrew Leigh

WHEN EVEN TRUMP IS CUTTING PRISON NUMBERS, AUSTRALIA SHOULD TAKE NOTE

TenDaily, 28 February 2020

At this month’s Super Bowl, more than 100 million viewers saw a Republican ad that would have been unthinkable a decade ago.

President Trump’s campaign touted Alice Marie Johnson, a 64-year-old African-American woman who had been serving a life sentence for a non-violent drug offence. With tears in her eyes, Ms Johnson thanked Mr Trump for commuting her sentence.

It was a far cry from George HW Bush’s infamous 1988 attack on Michael Dukakis for allowing Willie Horton out on weekend release, and from the harsh sentencing laws that led to the United States having the highest prison population in the world.

It wasn’t just Republicans that drove the surge in imprisonment. From the 1970s to the early-2000s, it was unchallengeable political ideology in the United States that tough on crime was a vote-winner. This resulted in incarceration levels increasing four-fold, with two million Americans behind bars. By 2007, more than one percent of American adults were incarcerated. One study estimated that more than one quarter of African American men would spend time behind bars.

It wasn’t just Republicans that drove the surge in imprisonment. From the 1970s to the early-2000s, it was unchallengeable political ideology in the United States that tough on crime was a vote-winner. This resulted in incarceration levels increasing four-fold, with two million Americans behind bars. By 2007, more than one percent of American adults were incarcerated. One study estimated that more than one quarter of African American men would spend time behind bars.

In one of the most striking policy shifts in recent American history, lawmakers in both parties have made a 180 degree turn on their approach to dealing with crime. Democrats and Republicans are now winning elections by promulgating policies which release offenders from prison, instead of laws that put more offenders behind bars. Even more remarkable is that the Trump administration -- while conservative on most issues -- has championed the First Step Act, which reduces the federal prison population. The United States is now in a period of decarceration.

Part of the credit for the fall in prison numbers should go to The Pew Charitable Trusts, which worked with over 30 states to forecast the fiscal burden of rising incarceration under ‘business as usual’, and craft evidence-based policies to strengthen parole, improve community supervision, and reduce penalties for offenders who have not committed serious sexual or violent offences. In some cases, these offenders have had their sentences retrospectively reduced. Over a six-year period, Texas closed eight prisons, saving taxpayers millions of dollars.

At 0.87 percent of adults, the US imprisonment rate is still well above Australia’s. But it has fallen by more than one-tenth since its peak in 2007.

Meanwhile, Australia has followed a different tack. Among adults, 0.22 percent are behind bars, up from 0.1 percent in the mid-1980s. One-third of prisoners are unsentenced. Over one quarter are Indigenous. Each of Australia’s 43,000 prisoners costs over $100,000 a year to incarcerate, making incarceration extremely expensive on state and territory budgets.

In the United States, imprisonment rates have fallen over the past decade. In Australia, they have risen over the past decade. In both countries, rates of many crimes have fallen.

The dramatic shift in sentencing policy in the United States has been driven by the realisation that the community can no longer afford the fiscal toll of mass incarceration, which resulted in over 11 American states spending more on prisoners than on universities. The momentum for change was also fuelled by studies showing that when it came to deterring crime, certainty of getting caught mattered more than the severity of the punishment.

In Australia, we are still in denial mode. It is inevitable that lawmakers in Australia will also reverse the ‘lock em up’ approach that has dominated sentencing policy for the past few decades. While criminals engender no community sympathy, the tide of history suggests that empirical truths and important moral values will ultimately prevail over expedient policies such as three-strikes laws.

When Donald Trump is claiming credit for reducing US prison numbers, it should provide the impetus for a rethink of sentencing practices in Australia. The US experience shows that even in a divided democracy, voters are willing to embrace evidence-based criminal justice approaches that save public money and cut crime.

To this end, there are now well-established solutions to enhancing the integrity and efficacy of the criminal justice system. For the most part, prison should be confined for offenders who scare us, not those that anger us. Many offenders in Australian prisoners are imprisoned for non-sexual and non-violent offences. Despite significant improvements in GPS technology for monitoring offenders’ movements, society too often resorts to the ancient technology of a prison cell. No-one likes being monitored, but if it lets an offender keep their job and see their kids, isn’t it worth considering?

A smarter response to crime would make us safer as a community, result in billions of dollars of tax savings which could be redirected to schools and hospitals, and eliminate the pointless suffering that we inflict on low level offenders and their children. If the US Republicans can backflip, surely it’s worth considering here too?

Andrew Leigh is the Federal Member for Fenner, and his website is www.andrewleigh.com. This piece was co authored with Professor Mirko Bagaric, Dean of Law at Swinburne University and the author of Australian Sentencing.

ENDS

Authorised by  Paul Erickson, ALP, Canberra.