To most in the community, prisons exist to keep ‘the rest of us’ safe - to contain and restrain those who have committed serious offences; to deter (in theory) others from doing the same; and, if applicable sentencing legislation is to be believed, to provide those same offenders with prospects of reform. The reality, however, does not always match the theory, the criminogenic nature of a prison environment often serving to entrench, rather than address offending behaviour. In fact, prison is the context in which first-time offenders are introduced to a figurative library of criminal experience, as well as a culture in which status as an offender carries extremely serious weight.
The infantalising experience of an institutional environment, meanwhile - the lack of control or agency over daily decisions; over self-care; over personal relationships - leaves inmates ill equipped to resume community life. Released too often to homelessness; almost always to unemployment; to the sudden availability of drugs and alcohol and, in Victoria, less frequently to supervision because of changes to parole, reoffending, rather than for reform, are the most likely prospects on the cards.
All this means that Australian Corrections systems - and many others around the world - operate as revolving doors, keeping the community ‘safe’ from relevant offenders for a period of time, maybe; but doing little to deter crime; nor to address risk that offenders may pose upon release.
As former British Home Secretary Sir Douglas Hurd put it, and as cited in the recent report by the Victorian Ombudsman, prison is ‘an expensive way of giving the public a break from offenders, before they return to commit more crimes’. This means that, while victims might receive brief respite (although, arguably, little else from the adversarial process), the broad failure of our prison systems to address offending is likely to lead to the creation of more victims down the track - hardly the task for which these systems were designed.
Who makes up our prison populations?
When we look at the individuals inside our prisons, the picture becomes even more confusing. Far from the hardened offenders which the public might imagine and the media portrays, a significant majority of inmates arrive with a history of entrenched disadvantage.
As the same Ombudsman report explains, prisons provide a snapshot of the way in which we have, collectively, failed certain groups in the community. Whether in the shamefully disproportionate rates of Aboriginal and Torres Strait Islander people; in the stark finding that half of Victoria’s prisoners come from just six per cent of the state’s postcodes and have minimal high school completion rates; or in the fact that mental illness, cognitive impairment and Acquired Brain Injury are rife, our prisons functioning as the 21st century’s asylums - the demographics tell a story of entrenched institutionalisation, intergenerational trauma or poverty serving to map out a trajectory towards inevitable harm.
Victim or offender - a false dichotomy
Some will ask, so what? These people might be disadvantaged, but they have still broken the law. They have been convicted as an ‘offender’ in a courtroom (that’s if they made it to a courtroom, not always a luxury afforded in the NT). Nevertheless, there are victims, there are offenders and ‘ne’er the twain shall meet’.
What if we start to dig a little deeper? What if we edged out from behind this neat little dichotomy and realised that, often, there were more victims standing in that courtroom than we first assumed? Evidence heard at the Royal Commission into Institutional Responses to Child Sexual Abuse reveals all too clearly how swift the trajectory from victim to offender can be. Mental illness, isolation, loss of self-esteem - all those consequences of crime that we more readily recognise can propel people onto the wrong side of the law.
As if that were not enough, estimates suggest that between 50 - 90% of any female prison has been subjected to some form of interpersonal violence. Child abuse, sexual assault in adulthood, and family violence - this is the experience of far too many, the associated trauma then propelling them ultimately onto the wrong side of the law.
This indirect causation is only part of the story. Family violence also contributes directly to women’s incarceration - property damage by a partner; debts that an abusive man has accumulated or deliberately attributed to his partner; charges for drug offences that she has assumed on his behalf because she is too frightened to do otherwise…the list goes on. Women can also be imprisoned for assault or homicide of their partner, of course, having seen no other way out.
We see this on a regular basis at the Centre for Innovative Justice because our neighbours at the Mental Health Legal Centre run a program called Inside Access - the only service that, with Corrections Victoria’s support and with RMIT students in tow, regularly visits Victoria’s maximum security women’s prison and provides civil legal advice to help them establish stable lives.
Over and over, family violence comes up as the backdrop – to divorce, to mental illness, to child protection, to debt. It comes up when women are too terrified to leave prison until an Intervention Order is in place; when they are unable to be released because they have no housing. It comes up when women want to apply for victims of crime compensation to start to recover from a lifetime of harm. In fact, an analysis of a sample of files revealed that nearly half featured family violence as an element, despite the fact that interviews were not conducted to gather family violence data. Prevalence is therefore likely to be much higher than the bare figures reveal.
In other words, the Inside Access experience confirms what many in the family violence sector already know – that there are women in Victoria’s prisons simply because they are victims of crime. They are the ones who have been assaulted; they are the ones made homeless; they are the ones propelled into poverty, substance abuse or mental illness…yet they are the ones who have been locked up.
This is completely without logic. This is a failure of the system at its worst – the experience of prison and associated dynamics of control often compounding the effects of family violence and leaving women more vulnerable to poverty, reoffending and victimisation upon release. Meanwhile, the children of these women, often already victims, are further cemented in the cycle of potential offending and victimisation.
In this and other ways, male family violence is a direct contributor not only to the increasing population of Victoria’s male prisons, but its female prisons as well. The question then becomes to what extent Victoria would need a women’s prison at all were it not for its epidemic of family violence. Surely investment in greater support for victims - including to prevent their reoffending - would make more social and economic sense than the construction of more prisons and a system which compounds, not alleviates, harm?
Throwing out the framework and starting again
How did we compartmentalize our reaction to all this, offering boundless compassion to those who have been wronged until their resulting dysfunction trips them over to into wrongdoer - until they become ‘offenders’ and we start jostling instead to see how harsh we can be?
If we genuinely want to prevent the creation of more victims, this is not an intelligent, or even pragmatic, response. Sending damaged people to prison so that they can emerge more damaged is not going to keep anyone safe. Instead, it is going to turn already marginalised people into more hardened, repeat offenders, cementing the cycle of institutionalisation and propelling more victims - who continue to experience the ongoing effects of the crime they have experienced - beyond the reach of our apparently limited concern.
To acknowledge these realities is not about being soft on crime, nor is it about making excuses for those who commit it. Yes, there are bad bastards out there who need to be met with the full force of the law.
Sometimes there are no signs or indications that their offending is on the cards; sometimes their crimes are so heinous and their prospects of rehabilitation so poor that we have a duty to detain them for a long time.
In the vast majority of cases, however, there are indications - of aberrant behaviour; of victimisation; of increasing isolation and distorted thinking; of escalating risk - indications that tell us that we have to do something before this offending kicks in; that we have to intervene more effectively once it does.
Yet, as the recent report by the CIJ, Opportunities for early intervention: bringing perpetrators of family violence into view explained, the detached nature of our legal system tends to propel these individuals away, rather than bring them under the scrutiny of a proactive response. In doing so, our legal system not only misses an opportunity to interrupt this cycle of violence but can actually contribute to it – vindicating a perpetrator’s sense of entitlement and belief that he is above the law.
Where a perpetrator is imprisoned, meanwhile - either for an offence identified as related to family violence or for something else - it is often the case that a history of family violence goes unaddressed, with many family violence offenders imprisoned for such short periods of time that they are ineligible for the necessary treatment programs, with the hyper-masculine environment of prisons serving to entrench, rather than dismantle, violence supportive attitudes.
All this means that, potentially, the prison environment can be responsible for the creation of more victims. Whether it be the victims of those crimes committed by those cycle of offending has not been broken; or the existing victimisation of an offender which has been compounded, rather than alleviated, by the experience of incarceration, this accumulation of victims could be halted if legal system functioned in a different way.
The real purpose
This is where we must return to examining the purpose of prisons and the justice system more broadly. We need to ask whether the duty of a justice system should go beyond functioning purely as a detached and impartial machine - one which takes no interest in what brings people through its door, nor responsibility when they keep coming back.
Is the purpose of a police force, for example, simply to detect crime or to find ways to help prevent it and keep communities safe? Is the purpose of a court simply to adjudicate disputes and administer sentences, or is it to prevent further disputes or offending from occurring? Is the purpose of a Corrections system to function as a revolving door for victimisation… or as a one-way door to better opportunities?
I believe we need to see contact with the criminal justice system as a potential for positive intervention. Where this occurs effectively this should mean that prisons become irrelevant, communities supported to address potential offending before it occurs; and first time offenders diverted onto more constructive paths.
Where a custodial sentence is necessary, however, this also needs to be seen as the unique opportunity it really is - a structured relationship that enables us to address prior victimisation and to create new lives.
In other words, if we want our sentencing practices to work, a relationship with Corrections (whether custodial or otherwise) is an opportunity to address histories of trauma and family violence; to address low levels of literacy or numeracy; to address mental illness or ABI rather than just warehousing it; to address fractured relationships; to connect people with case management, long term housing or ultimate employment; and to help them reconceive themselves beyond their history of disadvantage and their identity as ‘committer of crime’.
It is time to take a drastically different approach to the way in which we conceive the role of prisons. If we do not, the trajectory of our Corrections system seems as negative and inevitable as the lives of those disadvantaged and victimised individuals it houses. The main game, the real role of any aspect of the justice system must be to prevent crime and the creation of more victims. Ultimately, the role of prisons should be, for the most part, to do themselves out of business – to keep the community safe from that hardened minority where there is no other alternative, but to put the vast majority of offenders onto a more constructive path.
Rob Hulls is Director of the Centre for Innovative Justice at RMIT. You can follow him on Twitter @HullsRob