GOALS OF IMPRISONMENT

Australian courts are provided with a flexible discretion to impose custodial sentences subject to it being within the maximum term specified under the law.  Imposing sanctions involving imprisonment are generally the last mechanism invoked where non-custodial options are unavailable. 

Imprisonment seeks to achieve four central criteria based on society’s response.

Deterrence
The theory of deterrence provides that the explicit threat of imprisonment will discourage potential offenders.  There are two categories of deterrence:

1. Specific deterrence – the effect of the punishment on the individual likelihood to re-offend;
2. General deterrence – the threat of punishment on prospective offenders.

Deterrence relies on the individual conscience reinforced by the shaming of others to prevent recidivism or prospective offenders, but it is suggested here that the threat of imprisonment does not achieve this and would additionally impose a greater financial burden on the general public.

Rehabilitation
The nature of violence and its manifestations are complex and no two offenders are alike.  Through exposure to correctional and welfare programs, rehabilitation attempts to teach offenders an alternative behaviour to violence and become law abiding members of society. 

Problematic to rehabilitation is the prison environment- it does not enforce the acquisition of social skills, it is segregated from the general community and isolates offenders by the notion of ‘us’ and ‘them’.

Incapacitation
Being the most common social response to criminal offenders, the logic behind this is that a violent person who has been incapacitated can no longer offend against innocent members of society.

Not surprising, incapacitation leads to overcrowding of prisons which at the very basic, would require a greater proportion of officers and increase the annual expenditure on prison facilities.   At the more severe end of extremity, ramifications such as violence perpetrated against other inmates, public officers and/or death in custody are also common.

Retribution
Retribution has been the longest standing response to violence permeating all civilisation and histories.  Retribution is concerned with morality and imprisonment offers victims of crime a means of reprisal without offending the law.  It is hoped that through imprisonment, offenders receive a punishment that reflects the severity of their crime.

In principle, retribution fails to consider the effect of wrongful conviction and often implements more lenient sentences on juvenile offenders on the basis of their youth and criminal mind.  What retribution neglects to consider are the psychological consequences the prison system may have on younger, vulnerable minds.   

There is no doubt that to some extent the criterion contributes to crime prevention at the specific point in which it occurred.  However whether the criterion actually prevents recidivism remains a pivotal debate in the issue of juvenile justice system.

Consequences

The Australian criminal justice system is predicated on the assumption that more onerous forms of sentencing is appropriate where a juvenile offender has committed a serious offence or has illustrated a failure to commit to less onerous forms of criminal sanctions. 

A study conducted by the NSW Bureau of Crime Statistics and Research found that 68% of appearances in the Children’s Court lead to repeat appearances in the adult criminal court.  The study reinforced what previous decades had been unable to accept, that custodial sentences imposed on young offenders breed the phenomenon called ‘recidivism’- the habitual relapse into crime.

The following table, from the NSW Department of Justice [see link below], illustrates the rate of imprisonment and of more interest the number of deaths in custody, a key concern that is rarely addressed in the consideration of custodial sentencing.

CUSTODIAL CORRECTIONS(a), 1994-95

(a) Excludes private prisons.
(b) ACT has a remand centre only. The information provided refers only to remandees.
(c) At 30 June 1995.
(d) Number of prisoners per 100 people which the prisons were designed to hold.
(e) According to the Prison Census June 1994.
Source: Northern Territory Government, Department of Corrective Services 1994-95 Annual report; ABS, Prisoners in Australia, 1994.

Recidivism

The government has lead society to believe that imprisonment is the key to crime prevention.  Under the guise of rehabilitation, society is reassured that young offenders are taught enough social communication skills that upon release will become law abiding citizens however, the Australian Bureau of Statistics concluded that 58% of prisoners held at June 2004 had previous criminal convictions with the figure rising to 77% amongst indigenous offenders.

The table below from the Australian Bureau of Statistics [see linlk below] predicts the probability, based on previous studies, of a juvenile offender receiving an adult custodial sentence within eight years of appearance in the Children’s Court. While the data is not conclusive that imprisonment fails to fulfill the functions ascribed to the justice system, it raises serious concerns over the rate of recidivism.

Having considered the reality of recidivism rates, the question now is how can the juvenile justice system be reformed?  The Criminology Research Council has made three key recommendations to improve recidivism rates:

1. Developmental approach: focuses on developmental issues that are likely to influence the type of crimes juvenile offenders’ experience.  This may be the transition from school to work, work to unemployment, work to family life and the transition from dependence to independence.

The developmental approach addresses weakness in juvenile self-esteem and trains them to deal with life’s hardships in rational and non-violent means.  In this way, young people are prepared to deal with future obstacles in a way they may otherwise not know how.

2. Community based sanctions: rather than exposing juvenile offenders to a world of tougher and more dangerous criminals, the focus should be on interaction with the community.  The age of juvenile offenders factors largely into this approach because it recognises that the social experience and mental understanding of juvenile offenders are generally lower than those of adult criminals.

Juvenile offenders commit crimes that are generally less severe than adult criminals.  To place them in a prison environment would make them vulnerable to the teachings of the older prisoners.  Community based programs aim to achieve collective socialisation between the offender and the wider community, reflecting a contract of acceptance by the community provided the offender does not re-commit.  Community based programs imply that juvenile offenders are not neglected for a single mistake and that forgiveness is granted if they prove their genuine remorse.

3. Post delinquency intervention: this approach focuses on working with juvenile offenders to determine the lifestyle influences that lead to a habitual criminal preference. 

Unlike community based sanctions that unite the community with the offender, post delinquency intervention will seek to determine the factors that compel juveniles to turn to crime.  Recognised factors influencing crime include but are not limited to:

• child abuse
• broken family and/or domestic violence
• drug and alcohol abuse
• poor socio-economic status and
• lack of education

It is hoped that in determining the factors that impede successful rehabilitation, the agencies that interact with the juvenile offenders will offer a program that is suited to address their individual needs.

While it is comforting to know that incapacitation protects society from offenders, it is only temporary and most offenders will be released back to society.  Rather than blaming the justice system for not imposing life sentences to prevent recidivism, society should turn to the government for policy changes that trulyrehabilitate offenders.

More information on ‘Goals of Imprisonment’

1. Australian Institute of Criminology http://www.aic.gov.au
2. Australian Institute of Criminology 1990 Society’s Response to the Violent Offender [http://www.aic.gov.au/research /cvp/offender.pdf] pg. 6-42
3. NSW Bureau of Crime Statistics and Research http://www.lawlink.nsw.gov.au/bocsar/
4. NSW Department of Justice http://www.djj.nsw.gov.au 
5. Australia Bureau of Statistics

• http://www.abs.gov.au/AUSSTATS/abs@.nsf/ViewContent?readform&view=ProductsbyTopic&Action=Expand&Num=5.2.3
• http://www.abs.gov.au/AUSSTATS/abs@.nsf/ViewContent?readform&view=ProductsbyTopic&Action=Expand&Num=5.2.8

5. Uplink Lawlibrary Documents http://www.uplink.com.au/lawlibrary/Documents/Docs/Doc82.html