The coronavirus pandemic is an extraordinary threat to public health, and governments around Australia have taken appropriate, and so far successful, steps to protect the population. As the crisis develops, further measures may be required.
For example, one aspect of the pandemic that has been overlooked is the danger that it poses to prisoners. Coronavirus can pose a terrible risk to people living in close quarters, as we have seen with cruise ships and retirement homes. For this reason, it has been suggested that governments release prisoners who are at high risk of severe symptoms if infected or of low risk to the community.
However, the best approach is to reduce the number of people being incarcerated in the first place. In the immediate term, this means revisiting the rapid rise of the population of unsentenced prisoners – that is, people who are incarcerated before being convicted. Over the medium term, as the Institute of Public Affairs has argued for several years, governments must take steps to safely reduce incarceration by reforming punishment for nonviolent offenders.
Incarceration has substantial fiscal costs – it costs taxpayers more than $4 billion annually merely to operate prisons. At the same time, there are even more significant human costs, with incarceration breaking up families and correlated strongly with unemployment. In exchange for these costs, the public is assured that it is buying its safety from crime. Yet incarceration is associated with repeat offending, meaning in some cases, as a corrective measure it is self-defeating. Sensible reforms, like those passed in the United States, offer a path forward.
The potential for coronavirus to spread throughout prison populations is a reminder of the radical growth Australia has seen in its prison population, and the ways our criminal justice system strays from its mission of keeping us safe. Prison should be reserved for the punishment of violent and recidivist offenders while alternative forms of punishment are implemented for nonviolent and lower risk offenders. But over the past decade, we have seen a dramatic increase in Australia’s prison population and rate of incarceration. There are now more than 43,000 people in Australian prisons, at a rate of 218 per 100,000. Though these figures have plateaued in the past two years, they are historically very high.
Governments now face the challenge of managing this population’s vulnerability to the pandemic. However, while the argument for releasing prisoners because of the pandemic is based on sound premises, it demonstrates, again, why sensible criminal justice reform must be delivered from the right of the political spectrum as in the United States under President Trump. Criminal justice reform requires widespread community trust; it cannot be pursued ad hoc and without heed to both the evidence and the political reality.
It is true, for instance, that prisons have a regular churn of incarceration and release, as well as staff coming and going, meaning that they are not as sealed off from the broader community as some might imagine. Moreover, as an open letter released by Liberty Victoria and signed by 119 lawyers put it, “You cannot social distance in a cramped prison”.
But it is a leap to go from those facts to arguing, as did 370 academics, lawyers, and social workers in an earlier open letter to the Commonwealth Government, that “[t]o prevent prisons becoming COVID-19 hotspots, the only logical response is decarceration”. That is, some on the left have been using the coronavirus as a way of progressing their broader agenda of mass prisoner release, in some cases of violent offenders.
In keeping with its solid record of sensible criminal justice reform, NSW has led the way in the pandemic response. Under legislation passed last month, the state’s Commissioner of Corrective Services has the power to release certain low-risk offenders from prison and into community corrections. Before releasing anyone, the Commissioner is obliged to consider the risk offenders pose to the community and their vulnerability to the disease. Relevant factors include age, medical conditions, and the nature of their offending. Prisoners convicted of murder, serious sex offences, and terrorism offences will not be eligible. This is a balanced approach.
Thankfully, we have not yet seen a serious outbreak in any of our prisons. The risk of an outbreak, though, usefully highlights a more general weakness of our criminal justice system: the inability or unwillingness to robustly assess the risk that offenders pose to the community and to use those assessments in expanding the use of non-prison punishments. We know that the most serious offence of 52 percent of Australia’s prisoners can broadly be characterised as non-violent (involving property or drug offending, for example) but we need more sophisticated breakdowns of offending patterns to really know who we should be “afraid of” rather than merely “mad at”.
But if we could identify people who could safely be released during the pandemic, it is likely that those same people could be safely released anyway. That is, whatever risk assessment mechanism that could identify prisoners for early release would apply in normal times as well.
Perhaps an easier place to start in the current circumstances is by reducing the number of people being remanded into prison. Between 2009 and 2019, 57 percent of the rise of the prison population was attributable to the use of remand. Overall, one third of the prison population is made up of unsentenced prisoners. This means that the police and courts have become increasingly risk averse with respect to bail. While, this is understandable given some high-profile examples of offending by people on bail, it is also sub-optimal given the costs, both fiscal and human, entailed by incarceration, even absent a pandemic.
Courts have in a few recent cases considered the circumstances created by the pandemic in bail decisions. There are limits to how far this reasoning can be extended – remand exists for a reason, after all – but it is an appropriate place to start.
The spread of the deadly and novel coronavirus is just the latest reminder of the need for governments to engage in sensible criminal justice reform where incarceration is reserved for violent and repeat offenders who pose a threat to community safety. Alternative forms of punishment should be sought for low risk and nonviolent offenders so they can once again become productive members of society who pay taxes and attend to their familial and community responsibilities.