Time To Rebalance The Scales Of Justice

Written by: and
8 February 2023
Time To Rebalance The Scales Of Justice - Featured image
Originally Appeared In

The death of Veronica Nelson in custody has finally convinced the state government to address the appalling rise in Victorian prison numbers, and, encouragingly, the state opposition agrees criminal justice reforms are necessary.

Key to these reforms is a review of bail eligibility. The number of unsentenced prisoners, like Veronica Nelson, has more than doubled over the past decade.

The need for prison reform is, in fact, a nationwide crisis. In the mid1980s, Australia’s incarceration rate reached a low of just 85 prisoners per 100,000. Since then, the proportion of Australian adults in prison has increased by a staggering 240 per cent. This is three times our population growth rate.

Australia’s prison rate is dramatically high: it is much higher than other commonwealth countries with similar legal systems, such as Britain and Canada, and more than double European countries such as Germany, The Netherlands, and Sweden.

And on current trends, Australia is set to be in the top five for incarcerations in the OECD by the end of the decade.

A rising incarceration rate is neither good nor bad in and of itself. For example, if all those being sent to jail have committed violent and sexual offences, and are a threat to community safety, then the rising incarceration rate is justified.

But this is not the case. Today, for example, more than four in 10 of Australia’s 41,000 prisoners have not committed a violent or sexual crime. They have instead committed crimes such as fraud, low-level property theft, and driving offences. This equates to about 17,000 current prisoners.

In attempting to incarcerate this many nonviolent low-risk offenders, the justice system inevitably tries to make room in prisons by lowering sentencing for serious offences.

There are also strong and compelling arguments that those who have committed the most heinous crimes should be incarcerated for much longer.

Yet, unfortunately, this is not what has been happening in Australia. In Victoria, the average sentence for child sex offenders who abuse children under the age of 12 is just five years in prison. This falls far short of community expectations and demonstrates why rebalancing our sentencing policies is so important.

Sensible criminal justice policy must acknowledge that there is a difference between those criminals who harm and scare us, and those who make us angry and frustrated. Tax dodgers, insider-traders, and social security cheats are annoying.

They must be punished. Harshly, in some cases. But such offenders do not threaten our physical safety.

In sentencing, perspective means implementing the proportionality principle, which requires the seriousness of the crime to match the harshness of the penalty.

The violation of this principle is the key reason that we have a burgeoning incarceration rate. It needs to stop. Not because the community should have sympathy for criminals, but because it is costing taxpayers’ money without providing a dividend in terms of improved community safety and less violent crime.

The latest figures from the Productivity Commission, released last week, shows that the total cost of prisons in Australia has climbed dramatically by 6 per cent per year over the past decade in real terms. Fiscally, the cost of the prison budget is now nearly $4.5bn annually. Much of this would be better spent on critical social services, such as schools, roads and hospitals.

A longer-term fix to the burgeoning prison population is also necessary. This would see serious violent and sexual offenders always sentenced to prison and often for longer terms than they currently receive, while all other offenders would be dealt with by means of other sanctions, including fines, restitution orders, and work orders.

Conservative states in the US, such as Texas and Georgia, have done this successfully over the past decade. Incarceration numbers have been reduced without compromising community safety, and in a way that delivers savings to taxpayers and gets more people into work.

It is the last point that is critical. Our community would receive greater benefit from low-risk, nonviolent offenders entering the workforce to offset the massive nationwide worker shortage being experienced across every industry.

Every prisoner costs about $147,000 to feed, clothe, and detain. And the capital costs of new prisons can easily run into the hundreds of millions which, in an era of constrained budgets, detracts from spending on other critical areas and adds to already unsustainable state and federal debt.

Australia’s sentencing policies are creating an incarceration crisis, imposing significant social and economic costs on the community, while not delivering the justice outcomes we deserve. It is time we rebalanced the scales of justice.

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