OPINION: The defining characteristic of the recent history of imprisonment rates in New South Wales is volatility. A 2012 NSW Bureau of Crime Statistics and Research (BOCSAR) research report, ‘Why is the NSW prison population falling?’, was followed 18 months later by ‘Why is the NSW prison population growing?’.
Are rising crime rates causing such volatility in imprisonment rates? No. Crime rates for most categories of crime, especially property crime, have been declining since the early 2000s. The current NSW murder rate is half what it was in 1988.
The simple answer to the questions about prisoner numbers is politics and perceptions. Imprisonment rates reflect the varying approaches of political parties and governments to criminal justice policy. Polices are often formulated in the lead-up to elections or in response to media and public pressure around individual cases.
A short history of recent law and order politics
The 1970s and early 1980s were a period of criminal justice and penal reform. That changed in the mid-1980s to an increasingly punitive political, public and media climate. NSW imprisonment rates dropped from 126 in 100,000 in 1970 to 84 in 100,000 in 1984, then started climbing, doubling by 1999.
Following an increase of 34% between mid-2001 and mid-2009 – mainly under a Labor government – an 8% reduction in the imprisonment rate occurred under a Liberal National government. Between September 2012 and March 2014, under the same conservative government, the prison population increased again by 13%. After a short pause, this trend has continued, to a rate of 182 per 100,000 in 2014 and climbing.
Criminal justice reform and falling imprisonment rates
The Wran Labor government elected in 1976 embarked on a program of law reform, led by the attorney-general, Frank Walker. Walker decriminalised public drunkenness, begging, vagrancy and most prostitution offences, raised the legal threshold for common public order offences such as offensive language and behaviour, abolished imprisonment for fine default and reformed bail laws. The 1978 report of the Nagle Royal Commission into Prisons ushered in a period of prison reform under Commissioner Tony Vinson.
In 1982 a short-term licence release system reduced sentence lengths. But this fell into disrepute when the minister, Rex Jackson, was convicted and imprisoned for corruption in relation to the scheme. That delegitimised executive-based release schemes and set the scene for the later rise of “truth in sentencing”.
The 1983 move to take remissions (of one-third of the sentence length) off the non-parole period further reduced sentence lengths.
Backlash: the punitive turn
After 1986 the political, public and media climate in NSW took a markedly punitive turn, stimulated by Liberal shadow minister for corrective services Michael Yabsley in the lead-up to the 1988 state election, which his party won. Yabsley ramped up a “law and order crisis” and painted the ALP as “soft on crime”.
“Truth in sentencing” legislative changes in 1989 abolished remission altogether and increased the length of the non-parole period. The result was an increase in sentence lengths by 19% for adults and 30% for children, and a 30% increase in the prison population over the first two years of the government.
At this point Labor joined the “law and order auction”, with the Carr and subsequent ALP governments vowing not to be outflanked on the right on law and order. In 2003, in response to the Liberal National opposition’s election policy of “grid” (semi-mandatory) sentences, Labor introduced a scheme of “standard non-parole” periods (indicative but not mandatory minimum terms). This had the effect of significantly increasing sentencing tariffs across a range of serious offences.
A NSW Judicial Commission study comparing sentencing outcomes in Australian jurisdictions found that NSW had the highest proportion of sentences of imprisonment across four offences. BOCSAR found that, adjusted for population, nearly twice as many people were sent to prison in NSW as in Victoria.
Legislative hyperactivity produced 23 “punitive” changes to the Bail Act in NSW from 1992-2008. The rate of bail refusals in the District and Supreme Courts nearly doubled between 1995 and 2005. By 2014, 26% of NSW prisoners were in remand custody. A 2012 reportby the NSW Law Reform Commission led to the passing of a reform-oriented Bail Act.
From prison closures to overcrowding
In February 2013, Corrective Services NSW held a seminar to discuss projections of continued falling crime rates and prison numbers after the Liberal National government had closed three prisons. Yet in 2013-14, “capacity utilisation” (meaning overcrowding) hit 109.4, above the national average of 104.4.
Currently, prison “modulars” (demountable cells) are being built in response to the prison population boom. Prisoners are being held in police cells as the main remand prison is full.
The context for this reversal was the removal from office of Attorney-General Greg Smith, who had sought to reduce imprisonment rates by promoting bail reform. Smith came under constant attack from “shock jock” Ray Hadley. The 2GB radio host enjoys close links with the NSW Police Association and senior members of the NSW police hierarchy, as well as the Sydney News Corp tabloid, The Daily Telegraph.
Within one month of the introduction of Smith’s reformist bail legislation, three cases where notorious accused were granted bail provided a platform for Hadley to ramp up his attacks on the reform, traducing the presumption of innocence and conflating accusation, guilt and punishment.
Former Labor attorney-general John Hatzistergos, the major architect of the constant amendments restricting access to bail, was appointed to “review” the legislation. His review trashed the philosophy behind bail reform (the presumption of innocence and the right to liberty) and was used by the government to sabotage the reform through amendments introducing an additional “show cause” provision. From December 2014 to March 2015, the number of remands in full-time custody increased by a further 800.
Rising punitiveness and media influence
Recent BOCSAR research on public confidence in the criminal justice system found that the majority of survey respondents continue to hold marked misperceptions of crime and justice outcomes. Most people don’t recognise that there is declining property crime, overestimate the prevalence of violence in crime, and underestimate conviction and imprisonment rates. This appears to undermine confidence and exacerbate expressions of public punitiveness.
BOCSAR found that “punitiveness had intensified since 2012”. Respondents were “more likely to report more punitive views if they imagine violence is prevalent, property crime is escalating, and conviction and imprisonment rates (for home burglary) are low”.
In a hint at the “Ray Hadley effect”, BOCSAR found that such views were common among 2GB listeners, in contrast to Sydney Morning Herald readers.
Politics and perceptions
Imprisonment rates in NSW have little connection with crime rates. Rates of crime in most categories are falling.
Both historical and recent fluctuations in rates are reflections of the over-determining influence of “law and order” politics and shifts in public punitiveness.
Such public or “popular” punitiveness is a response to the politicisation of criminal justice policy and the rise of the “public voice” in the figure of the radio shock jock, dismissive of both fundamental legal and democratic values and the role of expertise, research and evidence.
In NSW it seems we are all prisoners of the politics and perceptions that swirl around criminal justice issues, and which echo in the siren call of law and order.
David Brown is Emeritus Professor Law Faculty at UNSW.
This opinion piece was first published in The Conversation.