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Crime and Punishment 2 -Prisons in Crisis


- Free Stock Photo per Bing

As I write, Tasmania is building another prison, as are several other states. Our prisons are severely overcrowded – one prison in NSW is at 51% overcapacity with three prisoners in cells designed for one. The state of Victoria also has prisoners triple bunking. This is largely as a result of prison populations increasing by 39% in a decade which is rather ironic as apart from cyber crime, most types of crime in Australia are in decline. Th growing prison population has more to do with an obsession with law and order which results in harsher sentencing, fewer people being eligible for bail and the tightening of parole eligibility. 

Similar reports about crowding also come from other countries such as Canada, from England and Wales (2019) and some European countries particularly Turkey, Belgium, Italy, France and Hungary. Unsurprisingly levels of self – harm and assault increase proportionately, with the UK Prison Service reporting 57,968 incidents of self -harm  or assault in the twelve months to March 2019. 

In the USA, which has a ratio of 639* per 100,000 of population and just over 2 million people in prison -or six times higher than average in European countries, crowding is partly a deliberate policy to ensure maximum return for the for- profit private prison industry. Other factors in the higher US rate are related to to the now abandoned War on Drugs and higher homicide rates -most likely due to lax gun control.

*[China may have even higher levels than the USA if the the approximately 1 million Ugyhurs in detention were included and the estimated 650,000 in administrative or pre -trial detention were taken into account].

Why we should care

The high economic cost of keeping people in prison

Building prisons is expensive, as is keeping people in them. For example, to keep up with a 10% increase in prison populations a year Queensland (AU) has had to allocate between $5 and $6 .5 billion for new facilities, while the state of Victoria has allocated $1.8 for more prison capacity and South Australia reports having to spend $9 million over its state budget for "surge' bed capacity.

In 2017, it cost Australians $110,000 per year to keep one person in prison and Australia’s criminal justice system cost $16 billion a year to run. Since then both costs and incarceration rates have increased, making them much higher than other OECD countries.

Funds required for prisons means taking money away from public goods such as hospitals, housing, adequate support services, education, mental health or drug rehabilitation, which would prevent crime in the first place. As Professor Robert Canton, Professor of Community and Criminal Justice, De Montford University, UK wrote in The Conversation:

 “ A society spending its money on more prisons while closing hospitals and cutting spending on schools and universities has lost its way.” 

Are private prisons cheaper?

The much -vaunted savings from privatisation are achieved by lower staffing with lower pay, more crowding, cherry -picking low risk prisoners, fewer services and recreational activities and keeping prisoners on average 7%  longer. Due to low levels of supervision, they are also more violent  and less secure. Where private prisons are profitable it has often come at great cost to both inmates and staff. and the savings are often illusory.  A 2011 New York Times article showed that due to the longer periods of imprisonment, it actually cost $1,600 more to keep people in private prisons, and investors no longer see them as a profitable investment.

Indirect costs

In the long -term there is the loss of the potential productivity to the economy. In the USA which has almost 10 times the incarceration rate of European countries such Germany (71 per 100,000 of population in 2022) or Sweden  (68 per 100,000) compared to 639 per 100,000 in the USA this means that there are approximately 2,000,000 people who are not in the workforce.

Though such  indirect costs are difficult to quantify, a 2015 survey conducted by the Australian Department of Health and Welfare found that prior to incarceration one third of prisoners were in employment, equating to a loss of $16,000 per person from the economy. When the costs of support for families left behind are added in plus deterioration of physical and mental health of prisoners, the indirect costs were closer to  $40,000 per prisoner.  


Most prisons fail to achieve their aims


 The main aims of prisons are :

  • To rehabilitate offenders
  • To protect society
  • To act as a deterrent
  • To punish offenders and obtain justice for victims

According to the International Covenant on Civil and Political Rights (ICCPR), an important adjunct to the Universal Charter of Human Rights which has been ratified by 173 countries, the purpose of imprisoning people "shall be their reformation and social rehabilitation (Part III, Article 10.3)"

However, if that is the case, it isn't working, given the high rates of recidivism - prisoners returning to gaol after being released on completion of their sentence, particularly in countries with the highest rates of imprisonment such as the USA. It also shows that high rates of imprisonment do not act as  a deterrent and thus do not make society safer.   

To those who think that the main purpose of prisons is to punish offenders or seek justice for victims of crime, it will come as a surprise to learn that two thirds of respondents in national victim surveys in the USA show that most victims of crime would rather have: 

“(M)ore violence prevention, social investment  and alternatives to incarceration which address the root causes of crime, not more investment in carceral systems that cause more harm.”

Prisons also fail inmates

Many things which happen in our prisons are in fact violations of a prisoner’s human rights especially under conditions of crowding. A person's human rights do not cease if they are charged with a crime or go to prison. 
Many of the provisions in Part III of the ICCPR concern themselves with the treatment of prisoners and those facing charges. Article 6 for instance, recognises an individual’s inherent right to life and requires it to be protected by law. Article 7 prohibits torture, cruel, inhumane and degrading punishment. Articles 9.3 and 9.4 are against arbitrary arrest and detention and require that prisoners to be promptly informed of the charges against them and swiftly brought before a judge or other authorised person. Articles 9-11 are about maintaining a person’s liberty and security. Article 10 requires that anyone deprived of liberty be treated with dignity and humanity, while Article 14 confers the right to a speedy trial. Article 17 calls for a right to privacy and Articles 23 -24 are about non -discrimination, minority rights and equality before the law.

 Crowding and lack of privacy and dignity

When prisoners are forced to share cells and use toilets and bathrooms designed for one person, within view of others, states or owners are likely to be in contravention of Articles 17, 9- 11 and 10 and very possibly Article 7. “No one shall be subjected to torture or cruel, inhuman or degrading treatment of punishment.” 

The right to safety and security

Crowding also increases the risk of assault, sexual assault, stress and the risk of self – harm and suicide which would be a breach of  Article 9. which states that “Everyone has the right to liberty and security of person.” The Mississippi private prison in which four out of five prisoners with a mental health condition had not received any psychiatric care  leaving other prisoners open to assault would  most likely fall into this category as would keeping prisoners in their cells for up to 23 hours per day as has occurred in Victoria (AU). 

Crowding also increases the risk of spreading disease, which has been particularly important while Covid 19 has been rampant. The failure to provide adequate medical care constitutes a breach of Article 12 about the right to health which forms part of the International Covenant on Economic, Social and Cultural Rights (ICESCR)  a parallel convention, signed by most countries at around the same time. Conditions in some US prisons, during the pandemic have been so bad that the failure to receive attention has resulted in riots and the setting of fires by prisoners, no doubt adding to stress and the possibility of harm. 

This has happened in Australian prisons too. While the pandemic has been blamed for staff shortages leading to riots as a result of lack of food and medicine delivery, increased lockdowns and restrictions on visitation rights, as for example in Acacia Prison in WA, in Queensland, South Australia and Tasmania, many problems predate the pandemic. Crowding and lockdowns due to staff shortages were evident long before the riot which erupted in Tasmania's Risdon Prison in May 2021,  putting both prisoners and staff at risk. This is borne out by high staff turnover. Of the 203 people who had joined Corrections between 2015 and 2016, 102 had left and 70 had active worker's compensation claims. Although a new prison has been planned in the north of the state, these problems will recur unless new harsher sentencing rules change. Lack of affordable housing has also meant that prisoners remain in gaol longer because they are unable to meet the permanent housing requirement for bail. 

 Treatment of minorities

The treatment of minorities  -Articles 23 - 24,  also leaves much to be desired. Just a cursory look at the prison populations of Canada, Australia and the USA shows disproportionate rates of imprisonment for indigenous people and black people. For example, in the USA black people make up 38% of the prison population, but only 12% of the general population. In Canada, First Nations people are over represented in the prison population by a ratio 30% compared to 5% in the general population. As far as black people in Canadian prisons go, the ration is 10% as against 4% in the general population. In Australia, where indigenous people make up only 2% of the population, the indigenous prison population stands at 27%. Also of concern is the disproportionate number of deaths of Indigenous prisoners in custody. Another 473 Indigenous people have died in prison despite a Royal Commission into Aboriginal Deaths in Custody held 30 years ago and many of its recommendations have still not been implemented.  recommendations. 

Limitations of the Conventions

Unfortunately, none of the Conventions are legally binding. They are more aspirational in character with many loopholes, particularly the ICESR which includes the "principle of continuous progress" towards an ideal. A handful of countries have not signed at all. Some, including Australia have carved out exemptions for themselves and the USA with the biggest prison population of all, has not even ratified the Convention on Civil and Political Rights which means countries are not obliged to have taken steps to incorporate the spirit of the conventions into their own law.

Nevertheless, some prosecutions have already taken place under other laws relating to human rights obligations. A California prison was taken to court for the number of preventable deaths in custody and inhumane treatment under Section 8 of the US Constitution which bans "cruel and inhumane treatment." France was found in breach Of the European Convention on Human Rights - similar to Article 7 of the Covenant on Civil and Political Rights, after failing to prevent the suicide of a person already known to be at risk and Greece was sued under the same convention for failing to provide adequate privacy and protection by forcing prisoners to share cells designed for one person.

Insufficient support post prison

Once released, there is often little support for prisoners beyond the prison gates. I can't speak for other countries, but in Australia's case, income support will most likely not meet basic needs, former networks of family and friends may have been lost and a prison record will make it difficult to obtain employment. It is little wonder then that there are high rates of recidivism and that Andrew Bushell wrote in his report on the Australian prison system, that it creates " a class of persistent criminals" despite spending more to keep people in gaol than most other countries. So much for rehabilitation.

If locking people up costs a lot, doesn't work as a deterrent and increases the chance that they will re - offend, thus failing both prisoners and their communities, are there better ways of achieving justice? That will be the topic of the next post.