Myths, misinformation and missed opportunities

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We should want to prevent crime, not just punish it. Hugh de Kretser says there is no excuse for the failure of governments to act on crime prevention when there is no shortage of evidence about what works.

There’s one thing we can all agree on; we need to reduce crime. Crime, particularly violent crime, can have devastating consequences for individuals and communities. Eliminating violence is one of the greatest human rights challenges Victoria faces.

While overall crime rates in Victoria have been trending downwards over the past decade, rates of assault have increased and family violence and sexual assault rates remain unacceptably high.

We need to do more to reduce crime, to stop murders, rapes and assaults. Which is why we need to do what works.

The problem is, there is often a disconnect between what works to reduce crime and what is implemented by governments. Too often, public debate around crime, particularly in politics and the tabloid media, is focused on punishment rather than on prevention. This diverts focus and resources away from proven initiatives that reduce crime towards blunt, harmful and extremely costly prison expansion.

THE MYTH OF LENIENCY

The mainstream media plays a key role in shaping public perceptions of the criminal justice system and commercial pressures drive mainstream media coverage of crime. Research1 has shown that the media disproportionately focuses on a small number of dramatic and violent cases, omitting relevant information and leaving the public with a highly inaccurate picture of crime and justice. Common misconceptions include people perceiving crime to be constantly increasing;  overestimating the proportion of crime that involves violence; and underestimating the proportion of offenders sentenced to prison and the length of prison sentences.

This fuels perceptions that courts are lenient on offenders. Ask someone if they think that courts are too lenient on offenders and most will agree. A 2008 Victorian survey2 showed that almost 64 per cent of Victorians surveyed felt that sentences in criminal cases were too lenient – results that are generally consistent with overseas studies over the past 30 years.3

At first glance, they suggest that sentences need to be made harsher to bring them into line with community expectations. In the lead up to the Victorian 2010 election, the Coalition interpreted public sentiment this way, announcing that ‘Victorians are sick and tired of seeing offenders receive hopelessly inadequate sentences time and time again’.4 This statement framed a raft of reforms to Victorian sentencing law, including:

  •   mandatory minimum sentences for gross violence
  •   baseline sentences
  •   abolition of suspended sentences
  •   abolition of home detention.5

Common features in these reforms, which are now being implemented, are harsher punishment and reduced court discretion.

Experience from the United States, however, shows that harsher punishments are unlikely to change public opinion. In the 1980s and 1990s, sentencing and parole guidelines in the US became significantly harsher – including the introduction of new sentencing guidelines, mandatory sentencing legislation, ‘three-strikes’ legislation and a reduction in non-custodial sentencing. As a result of these policies, the prison population increased by 70 per cent.6 Despite these changes, the proportion of Americans who thought that courts were too lenient remained  high – between 70 per cent and 85 per cent.7

More importantly, there a is big difference  between public opinion about sentencing in the abstract, and informed public opinion about sentencing in particular cases.

The message is clear – when the public has the same facts about a crime as a court, they generally agree with court sentencing.

A significant 2010 Australian study8 involved 698 jurors who sat through 138 trials. The jury’s job is to determine guilt. The judge determines punishment. In this study however, the jurors were asked to hear the arguments about sentencing and deliver a hypothetical punishment, which was then compared to the court’s actual sentence. In 52 per cent of cases, the jury sentences were more lenient than the judges’, and only 44 per cent more severe. Further, when the actual sentence of the judge was revealed, 90 per cent of jurors thought it was appropriate. These and other studies debunk the myth that court sentencing is too lenient. The message is clear – when the public has the same facts about a crime as a court, they generally agree with court sentencing.

COSTS OF PRISON EXPANSION

Victoria’s prison population has increased almost 40 per cent over the past decade, far outstripping the rate of increase in the state’s population, and requiring spending on prisons to triple in raw terms since 2002-03.9 Rather than acting to relieve jail capacity pressures, the sentencing reforms being implemented by the current Victorian Government will accelerate the increase in imprisonment.

The Department of Justice has acknowledged this, saying that the reforms are expected to be ‘the main driver’ of prison bed demand.10 In other words, how we choose to punish crimes, not crime rates themselves, will be the main driver of prison growth. A recent report of the Victorian Auditor-General on prison planning noted Corrections Victoria forecasts that the male prisoner population alone will grow by 45 per cent between June 2011 and June 2016 to 6,391 prisoners — an increase of 1,974 male prisoners over five years.11

Putting more Victorians in jail and for longer is the wrong approach to crime for three key reasons.

Firstly, it will exact harsher punishment on already disadvantaged Victorians. The lives of the vast majority of prisoners feature child neglect, cognitive disability, poor education, drug and alcohol abuse, unemployment and homelessness in one or more combinations. Less than 10 per cent of male prisoners and less than 20 per cent of female prisoners in Victoria finished high school or its equivalent. Aboriginal Victorians are 13 times more likely to be jailed than non Aboriginal Victorians.12 One recent Victorian study found that 42 per cent of male prisoners and 33 per cent of female prisoners had an acquired brain injury.13 The list goes on.

Secondly, it will do little to prevent crime. Longer prison terms don’t deter crime. Politicians like to talk about sending a message to offenders by increasing jail terms but most offenders aren’t listening and don’t rationally consider whether the punishment is five or 25 years when they commit a crime. Sending someone to jail does stop someone from offending in the community over the course of their prison sentence. But studies show that large increases in the prison population produce at best only modest decreases in crime rates.14 New South Wales has for most of the past decade locked people up at almost twice the rate of Victoria, yet its crime rate hasn’t been any lower.15 Worse, there is evidence that the experience of prison makes someone more likely to offend on release.16 Around 50 per cent of Victorian prisoners have been in jail before and around a third will be back in jail within two years of release.

Finally, it costs enormous amounts of money to send someone to jail. Prison construction costs vary greatly but in broad terms it can cost around half a million dollars or more to build each prison bed, on top of the annual operating costs of housing each prisoner of around $90,000. On these figures, it will cost around $1 billion to build extra prison beds for the extra 1,974 male prisoners  that Corrections Victoria predicts by 2016, plus an extra $178 million a year in operating costs. This is on top of the existing current annual prison budget of $707 million.

That would mean an additional $2 billion or so will be diverted over the next five years from a finite pool of taxpayer funds to cater for an increase in imprisonment driven mainly by harsher punishment policies. This means added pressure on funding initiatives that tackle the factors that cause crime. Already, we have seen significant continued pressure on child protection services, as well as cuts to the Victorian Certificate of Applied Learning (VCAL), to Vocational Education and Training (VET), including TAFE, occasional child care, and cuts to the Social Housing Advocacy and Support Program, not to mention the pressure on services directly aimed at rehabilitating offenders. You only have to read the Adult Parole Board’s annual reports to appreciate the lack of housing, substance abuse and mental health services for offenders. The inadequate funding for these services undermines work to minimise the risk of reoffending.

STOPPING CRIME

The good news is that there is a wealth of evidence about what works to reduce crime and numerous successful programs which are making a positive impact. Early intervention programs targeting vulnerable children and youth, sentencing programs that address the causes of crime and programs that provide stable housing and employment opportunities for prisoners on release are all effective ways to reduce crime.17 On the law enforcement side, increasing the perceived risk of apprehension is more effective in deterring crime than increasing the severity of punishment.18

We should be outraged by crime and the harm it causes. The key to reducing crime is shifting focus away from punishment towards evidence-based initiatives that prevent crime before the damage is done. There is no excuse for the failure of governments to take adequate steps to prevent crime when there is no shortage of evidence about what works.

Hugh de Kretser is the Executive Director of the Human Rights Law Centre and was the spokesperson for Smart Justice www.smartjustice.org.au from 2010-2012. Smart Justice promotes effective, humane and evidence-based criminal justice policies.

1. K Gelb, Myths and Misconceptions: Public opinion versus public judgment about sentencing, Sentencing Advisory Council, 15, 2006; K Gelb, More Myths and Misconceptions, Sentencing Advisory Council, 7, 2008.
2. Department of Justice, Perceptions of Justice Survey Results 2008, Melbourne, 2009, available at www.justice.vic.gov.au.
3. K Gelb, op. cit, 2006, 11.
4. R Clark, ‘Coalition to set minimum standards for serious crime’, Media Release, Melbourne, 2010, available at http://www.robertclark.net/news/coalition-to-set-minimum-sentence-standards-for-serious-crime/
5. M McDonnell, J Farrell, “Tough, tougher, toughest: A new government’s approach to sentencing laws in Victoria”, Alternative Law Journal, vol.37:3, 2012.
6. ibid.
7. J Roberts, ‘Public opinion and sentencing policy’ in S Rex & M H Tonry (eds), Reform and punishment: The future of sentencing, Willan, 2002, pp25–26.
8. K Warner, J Davis, M Walter, R Bradfield, R Vermey, Public judgment on sentencing: Final results from the Tasmanian Jury Study, Australian Institute of Criminology, 2011, www.aic.gov.au/media/2011/february/20110210.html and  http://www.aic.gov.au/publications/current%20series/tandi/401-420/tandi407.html
9. Sentencing Advisory Council, Victoria’s Prison Population 2002-2012, 2013; see 2013-14 State Budget, Budget Paper 3, 91 and 2004-05 State Budget, Budget Paper 3,172.
10. Department of Justice, Annual Report 2010-11, Melbourne, 2011, p30.
11. Office of the Victorian Auditor General, Prison Capacity Planning: Report, Melbourne, November 2012, p18.
12. Sentencing Advisory Council, Comparing Sentencing Outcomes for Koori and Non-Koori Adult Offenders in the Magistrates’ Court of Victoria, Melbourne, 2013.
13. Corrections Victoria, Acquired brain injury in the Victorian prison system, Department of Justice, Melbourne, 2011.
14. D Weatherburn, Law and Order in Australia: Rhetoric and Reality, Sydney, 2004, pp123-128.
15. D Weatherburn, K Grech & J Holmes, Why does NSW have a higher imprisonment rate than Victoria? NSW Bureau of Crime Statistics and Research, 2010; Australian Bureau of Statistics, Recorded Crime Victims, Australia 4510.0 2010, 2011 and Crime Victimisation, Australia 4530.0
2009-10, 2011, 11, 13.
16. Department of Justice, Statistical Profile of the Victorian Prison System 2005-06 to 2009-10, Melbourne, 2010, p37.
17. See Smart Justice, Preventing Crime the Smart Way, Melbourne, 2010, at http://www.smartjustice.org.au/resources/SMART_Prevention.pdf
18. D S Nagin, Deterrence in the twenty-first century: A review of the evidence. http://www.heinz.cmu.edu/research/472full.pdf

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