Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

The Task for this month could well be regarded by some, as another of those aspects of our society best left to legislation rather than being included in the Constitution. However, it should be appreciated that, for over 200 years legislators in Australia have made very little change to penal systems. The reason for this could well be a perception that there are few votes to be gained by being concerned about improvement to prison systems, facilities and conditions. This attitude, together with a general community feeling that prisons were for punishment and to protect society from violent criminals, has resulted in a history of neglect.

It is, in my opinion, a national disgrace that our penal system operates very much as it did 200 years ago despite the advances in nearly every other aspect of society. We lock away convicted persons and at the completion of their sentence (or earlier), we let them out into society. Anecdotal evidence indicates that when prisoners are released from prison they are often more alienated from society than when they were incarcerated, they are often more skilled in crime, and they are certainly more aware of shortcomings and loopholes in our law enforcement and judicial system.

It is worth considering some data to put this problem in perspective. In the year 2002, there were 1,337,585 victims of serious crime. That is, over 7,000 victims per 100,000 people in one year! Or approximately one in every 14 people a victim of serious crime every year. This figure is increasing. As an example, during the period 1995-2002, assault increased from 563 to 810 per 100,000; an increase of 44%. (These are Australian Bureau of Statistics figures.)

These figures are even more disturbing when it is realised more than half these offences are committed by persons who have already served jail terms. Statistical information on the numbers of repeat offenders is difficult if not impossible to ascertain and this in itself is an indication of the neglect in this area. What I have been able to ascertain is certainly not the full picture but is probably sufficient for our purposes. As at 30 June 2002, there were 21,008 persons in prison in Australia. 58.8 % of these had been in prison before. This % does not include those repeat offenders not sent to prison, does not include repeat offenders not in prison on 30 June and does not include those repeat offenders not caught. However, this figure indicates that at least 60% of serious offenders re-offend even though they have previously been sent to prison. Is this an indication that perhaps our penal system is flawed?

Of course, there are numerous reasons why people break the law. It should also be acknowledged that some people are habitual criminals and nothing the society can do will alter their behaviour. However, it must be said that there would appear to be something lacking in our penal system when more than 60% of those apprehended, convicted and sent to prison; re-offend.

Enormous costs are incurred with every offence. The cost of police work, the cost of prosecution, court time, the cost of incarceration in prisons and the cost to victims must all be taken into consideration. Recently, construction of a single 600 bed prison in Brisbane cost $59 million. This is from a report by Tony Koch in ‘The Courier Mail’ and also included a figure of $40,000 per year to keep each prisoner. When coupled with the figures in paragraph 3, it can be seen that the penal system alone incurs capital costs in the order of $2,065,000,000 and a recurring annual cost of approx $840,000,000. It is therefore incumbent on our society to ensure that everything possible is done to reduce crime and perhaps this one area, the long neglected penal systems, should be the subject of our concern.

The aim of this Task is to ascertain if something can be included in the basic law of our society, the Constitution, to reduce the incidence of re-offending by those being released from our prisons. Our current Constitution contains nothing on this subject. The penal system, as with law and order in general, is the responsibility of State and Territory Governments. However, we will assume the National Government has been allocated responsibility for policy in this area as discussed in Task 8 and it is this policy that is the subject of this Task.

This issue is bound up with sentencing but it is considered sentencing is best handled by those trained in the subject; provided there is a mechanism to ensure the will of the People can be brought to bear if considered necessary. It is also acknowledged that, in sentencing, incarceration should be regarded as a measure only resorted to in the most serious of cases. Furthermore, in this Task we will not consider the general question of the causes of crime.

To tackle this problem we need to go back to first principles and decide what it is we hope to achieve from the judicial system. It is probably fair to say that the society should aim for a police, judicial and penal system that is effective in reducing crime to a bare minimum. To achieve this, the police would need to be numerous enough to deter crime and effective enough in apprehending criminals to take most offenders off our streets. The judicial system would need to impose sentences that would be effective as punishment and effective in deterring offenders from re-offending and others from committing offences. And the penal system would need to be effective in deterring criminals from re-offending; and effective in rehabilitating prisoners to the extent that, when released, convicts could and would be readily absorbed back into the community as law abiding and useful citizens.

If the above can be accepted, we should then ask the question; how can the system be improved to achieve those outcomes? We need to decide;

1. Do we need a penal system?
2. If so, what do we expect the penal system to achieve?
3. What policies are required to achieve those outcomes?
4. What sort of prisons are needed to ensure the desired outcomes are achieved?

The most obvious need for prisons, is to punish wrong-doers. Secondly, there is a need to protect society by separating criminals from society. Thirdly, there is a need for imprisonment to act as a deterrent; to those so sentenced and to others. But is this all we should ask of our penal system?

Obviously, while an offender is held in prison, the society is protected from criminal activity by that person. Furthermore, provided sentencing is appropriate, it would seem that punishment for crime is achieved. Whether or not the imposition of prison terms acts as a deterrent to others, is not so clear. However, the statistics outlined above tend to indicate that the penal system is failing to ensure prisoners do not re-offend.

Some might argue that prisons should be so horrific that no sane person would ever again risk being incarcerated. While there might be a grain of truth in this argument, there is little acceptance of this approach in modern society. The approach more favoured is treatment or rehabilitation of prisoners. On the other hand, it appears that there is no general acceptance of the proposition that, “offenders are sent to prison as punishment, not for punishment”. However, there appears to be a perception in the community that arbitrary power exercised over prisoners by prison warders is counter-productive and exacerbates alienation from society.

In trying to design a penal system, it would seem that the following criteria are desirable:

1. A prison sentence should deter that person from re-offending.
2. Prison sentences in general should deter others from committing offences.
3. Prison sentences must be such that society in general sees them as adequate punishment for crimes.
4. Prisons should be viewed by society in general as being harsh enough to impose adequate punishment.
5. Prisoners must be treated in such a way that they are not further alienated from society.
6. Where possible, prison terms should equip offenders to return to society as useful, law-abiding citizens.
7. The prison system must be affordable.

 

Your answers to the following questions will guide the Foundation in the drafting of clauses for our draft Constitution.

Q1. Should our draft Constitution include provisions regarding the penal system?

Q2. Do you agree that Australia needs a penal system? That is, do you agree that persons who commit serious offences should be incarcerated?

Q3. If your answer to the previous question is ‘no’; what alternative punishment (s) or approach do you recommend?

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

Q4. Do you agree that the aims of the penal system should be to;

1. Punish offenders for their crime against society?
2. Deter offenders from re-offending?
3. Deter others from offending?
4. Rehabilitate/educate offenders to try and ensure they become better citizens?
5. Rehabilitate offenders in such a way that they are given the means to fulfil productive, satisfying and crime-free lives following release?

Q5. Do you believe that deprivation of liberty, on its own, is sufficient punishment?

Q6. Or do you think harsh conditions are a necessary part of imprisonment?

Q7. If your answer to the above question is, yes, what harsh conditions do you consider should be incorporated?

__________________________________________________________________________

__________________________________________________________________________

_____________________________________________________

Q8. Do you agree that, as punishment and as a deterrence, the first and last three weeks of every sentence should be spent in solitary confinement? (To give offenders time to reflect on their behaviour and hopefully decide not to re-offend). (This would mean that all sentences of up to six weeks would be spent in solitary confinement. If first offenders were to be so sentenced instead of using fines, bonds or community service orders as at present; this might achieve more deterrence.)

Q9. Do you have any other suggestions as to how to achieve deterrence?

___________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

_________________________________________

Q10. Do you agree that, for sentences of six months or less, rehabilitation should be in the form of general education? (On the basis that there is insufficient time to acquire specific vocational skills.)

____________________________________________________________________________

_____________________________________________________________________________

________________________________________________

Q11. Do you agree that educated/skilled prisoners could be used to educate/train other prisoners?

Q12. Do you agree that, for sentences of six months or more but less than life, prisoners should undergo vocational training such that they will be equipped to fulfil productive, satisfying lives after release.

__________________________________________________________________________

___________________________________________________________________________

____________________________________________________

Q13. Do you agree that, as a general rule in any 24 hour period, a prisoner should undergo 8 hours in the cells, 8 hours work and 8 hours education/training? (These times would necessarily be minus the time required for meals, exercise, ablutions, etc.)

Q14. Should those serving life sentences and those serving sentences that will see them released after reaching retiring age, be required to undertake productive work (to help offset the costs of the penal system) rather than rehabilitation training courses?

__________________________________________________________________________

____________________________________________________________

Q15. How can prisoners be converted into “better citizens”?

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________

Q16. Should prisons in general be “hard” or “soft” on prisoners? In other words, should prisoners have access to radio, TV, movies, gymnasiums, libraries, hobby facilities, etc.?

__________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

____________________________________________

Q17. Do you agree that prisoners in different categories should be kept separate even though this might incur additional costs?

Q18. Should our penal system include provision for substance abuse offenders to be incarcerated to “dry out” before appearing in court?

Q19. Should our penal system include a requirement for prisoners to spend time in a type of ”half way house” to facilitate reintegration into the community?

____________________________________________________________________________

_____________________________________________________________________________

________________________________________________

Q20. Should a considerable proportion of law enforcement resources be channelled into “half way house” type facilities and personnel?

__________________________________________________________________________

____________________________________________________________

Q21. Should judges be required to take into account rehabilitation requirements when passing sentence? (For example, if a judge perceives that an offender needs a certain period of training to become a useful citizen, should that influence the length of sentence?)

_________________________________________________________________________

_________________________________________________________________________

__________________________________________________________________________

________________________________________________

Q22. Should our penal system prohibit arbitrary judgement and punishment by prison warders and provide instead for a system of tribunal hearings and sentencing for breaches of prison rules?

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________

Q23. Should our penal system include a provision for an independent tribunal to extend a prison sentence in cases where it is considered by prison authorities that more time is needed to adequately rehabilitate a prisoner?

____________________________________________________________________________

____________________________________________________________________________

_________________________________________________

Q24. Do you agree that our prisons should include;

1. Separate prisons to hold those charged and considered dangerous or likely to abscond, but not convicted?
2. Separate prisons to hold prisoners in solitary confinement with no access to radio or TV?
3. Small prisons in many areas rather than fewer but larger prisons?
4. Half-way houses?
5. A range of education and training facilities?
6. Low security farm and factory type prisons?
7. Special prisons for the mentally and physically handicapped?
8. Any other sort of prison?

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

___________________________________________________________

Q25. Do you have any other ideas on this subject that could be incorporated in our Model Constitution?

______________________________________________________________________

______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_____________________________________________________

·=============== ===============·

Last updated: 3 May 2006