These are the people we’re locking up.

Prisons don’t work. When you look at the lives of people being imprisoned, it’s no wonder.

Prisons are expensive. According to the Productivity Commission, it costs well over $5 billion a year to keep 40,000-plus people in gaol. In 2019-20, that worked out to $280 per prisoner per day in operating costs alone.

When capital costs are added, the national average rose to $559 per prisoner.

Another study found that by 2030, overall costs would blow out to $7 billion. Both reports noted that while crime rates were falling, incarceration rates were going up.

Less crime, more prisoners

The most recent data show a decline in the overall crime rate of 18% in a decade:

But the prison population increased by 36% over the same period:

The result is that prisons are ever more overcrowded, rehabilitation becomes increasingly impossible, treatment for physical and mental health more and more inadequate, and addiction programs increasingly stretched or absent. Indirect costs – to prisoners’ future prospects, the welfare of their families, and the costs to the community of the failure to deter and avoid crime – are all becoming needlessly worse.

Prison is supposed to deter crime, but 60% of people charged by police have been in gaol before.

Not everyone charged goes to gaol. That explains the low numbers for public order offences – such as disorderly conduct, obscene exposure, violent disorder, carrying a knife.

“The recidivism rate for drug offences – 45.8% – is a reflection of the failure of the war on drugs,” says criminal defence barrister Greg Barns. “Theft is a reflection partly of poverty but partly related to drug offending.

“If you look at all of these figures, 60% have been in prison before. That’s six out of ten people are coming back into the prison system.”

Most have been in gaol more than once before, and 30.5% at least five times before.

There is no serious disagreement that there are some seriously violent, dangerous people who must be imprisoned because they are a danger to the community. But most of those who are locked up represent no evident danger, and could be dealt with more effectively and more cheaply by other methods.

“Recidivism is a reflection of the failure of the prison system in terms of reform,” says Greg Barns. “Most people in prison don’t need to be there. People who commit theft are non-violent offenders and simply don’t need to be within the prison system. Nor do many people who’ve committed drug offences.”

Recidivism is also costly. The Productivity Commission paper found: “the annual fiscal cost of imprisonment attributable to recidivism is about $3.1 billion nationally, which accounts for between half and three quarters of the operating costs across jurisdictions.”

Rates of three of four common offences have fallen sharply in the past 10 to 15 years. This chart shows the rates of police charges for drug offences in 2021-22 declined from their peak by 44%, public order offences by 61% and theft by 62%.

With the exception of assault, all of these offences have been in sharp decline over the past ten years. But the desire by policy-makers to increase penalties and lock more people up is unabated. No matter how much it costs, how much human damage it inflicts, and how much avoidable crime it generates, ‘tough-on-crime’ policies still get votes.

Most of the improvement in the treatment of non-violent offenders – and drug users in particular – is due to changes in the way police and courts deal with them. Low-level offenders are much more likely to be warned, issued with a fine, given suspended sentences or sent into diversionary programs, rather than being imprisoned. The law – and the political leaders who make those laws – are moving in the opposite direction.

Police, judges and magistrates have little influence over the provision of rehabilitation among those who are given custodial sentences. Politicians will have to do that, but they’re not.

Who are they? Life before prison

The criminal law takes no notice of why people commit crimes, only that they do. There is a laudable principle that everyone is equal before the law. But that should not lead to the assumption that people who commit offences are the same as everyone else. The system’s failure can largely be traced to that seriously wrong assumption.

People in prisons are mostly young. Seventy-six per cent are aged between 18 and 44.

Barns: “The vast majority of prisoners are in the 18 to 44 category, which means you are taking out of the community and the labour market [during their potentially most productive years]. They have had a lack of education opportunities and a lack of employment opportunity.”

Home background is critical. If children grow up in culture in which crime is regarded as normal, it is not surprising that many will follow the same path.

A very high proportion – 25% – come from homes in which a parent or carer has also been in prison. At the moment, that is particularly the case for the youngest prisoners (42%).

Barns: “That is a staggeringly high figure. What that shows you is intergenerational poverty and disadvantage, lack of early role models, and a failure of the education system.”

They have very high rates of alcohol consumption: again, a product of culture and background. And again, it affects younger people most.

Barns: “Addiction is a major issue in the prison system. There is very little done within the prison system to address harm, and that is why people keep coming back into prison. Every one of those age-groups reflects people who are coming in and out of the prison system from the age of 18 onwards.”

Smoking rates are another indication of harm. The contrast between prison entrants and the general population is striking.

This is a cohort of people who are on the fringes of the economy. Of the prison entrants surveyed, only 27% had full-time work before going into gaol; and the large majority of those who were in employment had been in low-paying and often insecure jobs. Overall, 59% were unemployed.

Barns: “Prisons, of course, have banned smoking but not much is being done to ensure that people don’t go back into smoking when they’re released from prison.”

That point is confirmed by the statistics. Although pre-incarceration smoking rates are very high, the lack of access to cessation programs within prisons reveals a general neglect of the problem.

These are people on Australia’s economic fringes. Only about a quarter of prison entrants had full-time employment.

And over 10% of prison entrants had been sleeping rough.

Barns: “[A large] cohort of prisoners are those who have insecure accommodation or are living on the streets. People are not getting through-care when they leave prison so that they’re not getting secure housing.”

The Australian Law Reform Commission says through-care programs “generally involve intensive one-to-one rehabilitation support; individual structured assessments; and individual case plans, created before release and followed through in the community”.

It’s effective but expensive. That, perhaps, is why there’s so little of it.

Prisoners typically have considerably worse health than other Australians. Around half have at least one mental and physical health condition. One in five have a history of self-harm.

Acquired brain injury is a major, and under-appreciated, cause of personality change and criminal behaviour. A head injury resulting in unconsciousness is a major, though not exclusive, indicator. In the AIHW survey, 38% of prison entrants reported a history of head injury.

A research report by the Centre of Innovative Justice at RMIT University found a clear connection between brain injury and imprisonment.

“In Victoria’s prisons, almost half of male prisoners and over a third of female prisoners have an acquired brain injury (ABI),” the report said.

“Our criminal justice system, and prisons in particular, have become the de facto social service for people with an ABI and complex support needs. The disproportionately high rate of incarceration amongst people with an ABI seems to indicate that the criminal justice system fails to meet the needs of this group. Despite the prevalence of people with an ABI in the criminal justice system, the interventions targeted towards this group are limited.”

Drug use, and particularly injecting drug use, is extraordinarily frequent among prisoners. Although drugs and clean needles are generally banned in prisons, addictions do not magically disappear when someone goes to gaol. Injecting is in itself a serious cause of health harm, from infectious diseases – hepatitis B and C, HIV – from overdose and from the effects of the drugs and the impurities they often contain.

Who are they? Life in prison

As the law-and-order policies pursued by state governments become tougher, more accused people go to court. Some are granted bail, though increasingly restrictive bail laws are part of the law-and-order package.

Productivity Commission research shows the proportion of prisoners who have yet to be sentenced, and who are on remand in custody, has doubled in the past 20 years.

While on remand, prisoners awaiting their trial are in a state of flux. The uncertainty associated with this for prisoners, victims and corrective services limits access to available services such as education and training and rehabilitation programmes.

“Remanding people in custody means that governments face the fiscal costs of
imprisonment itself,” said the Commission’s research paper.

“Additionally, remandees face indirect costs similar to those associated with short sentences but remand can have a particularly adverse impact on mental health. A study looking at New South Wales and South Australia found that 50% of prisoners who committed suicide were on remand at the time.”

This is a reversal of the principle that someone to be regarded under law as innocent until – and unless – proved guilty. Times on remand have blown out so far that their eventual sentence is shorter than the time they have already served on remand. In some cases, people on remand are found to be not guilty. Others may have received suspended sentences, a fine or a community corrections order.

At the same time as new laws increase the number of people coming before the criminal courts, funding for those courts, and for legal aid, has been cut. The Law Council of Australia has estimated that 10,000 people face various courts without representation each year because of inadequate funding of legal aid.

Treatment

A very high proportion of prisoners are in gaol partly or wholly because of their mental health conditions. One indicator is the level of prescribing of anti-psychotic medication: 5% compared to 0.2% in the general population.

Use of anti-depressants is very high, but no more so than in the wider community. This raises the same serious issues about the treatment of depression in both cohorts: that, too often, prescribing a pill is the only answer that the health system can produce.

But these drugs come with significant drawbacks. They can have serious side-effects. Once started, they are difficult to discontinue. And they work far better in combination with non-drug interventions, such as cognitive behaviour therapy.

Far too many people with mild to moderate depression are being treated with heavy-duty drugs when cognitive behaviour therapy is likely to be more effective and less problematic.

It would be surprising if this situation was any better within the prison system than it is in the general community.

Drugs

Prisoners found guilty of drug offences cover a wide range. A few are genuinely dangerous organised crime figures, top players in outlaw bikie gangs and international drug-smuggling syndicates. Many more are low-level figures, mostly with drug habits of their own, who are used by crime organisations as expendable dupes. Still others sell relatively small amounts of drugs to friends, or to support their own habits. And there are those who use drugs but don’t take part in any form of trafficking.

Barns: “People who are getting under two years just shouldn’t be [in prison]. Generally, they’re low-level drug offenders. It reflects we are obsessed with illicit drugs as opposed to alcohol and cigarettes, and we gaol people in disproportionate numbers.

“[Many of the sentences] under five and ten years is about trafficking but a lot of those people involved in trafficking have been stood over. They’re low level. They’re not the Mister Bigs and often they’re feeding a habit.

“It also reflects the failure of prohibition: the fact that you’re still getting such high numbers coming into the prison system.”

In a 2021 report, researchers from the Australian Institute of Criminology surveyed judges and magistrates about whether drug laws were likely to deter drug offending.

“There was some optimism that personal or specific deterrence as a direct punishment could work with some – but generally not drug dependent – offenders at the individual level,” the report said.

“A number of participants were ‘sceptical’ about general deterrence in the context of responding to and preventing drug trafficking more broadly, giving the impression that the inclusion of this objective in sentencing remarks was more mechanical than meaningful. Others expressed much more negative views, describing it as a ‘bogus mantra’.”

Addictions do not stop at the prison gate. Drugs are continually smuggled into gaols but rehabilitation programs are inadequate or non-existent. Meanwhile, authorities refuse to allow clean needles and syringes to be distributed, thus ensuring the sharing of equipment. Nationally, around 20% of prison inmates are positive to hepatitis C virus.

Barns: “You’ve got people coming in and out of the prison system who are drug users, and we’re not doing anything in terms of through-care when they come out. But also, it [takes up] a disproportionate amount of policing.”

A key survey of blood-borne diseases among prisoners is conducted regularly by the Kirby Institute, attached to the University of NSW. In their most recent report, the institute’s researchers said:

“To reduce the risk of contracting bloodborne viruses, there must be a greater focus on availability of drug treatment. While there has been an increase in the use of methamphetamine among PWID, treatment has decreased.

“Prisoners are often unaware of their health status. Therefore, testing needs to be prioritised to inform inmates of their health status in order to obtain treatment if required.

“Furthermore, as prisoner populations generally have a high turnover rate, the correctional setting represents an important opportunity to screen and treat this population and to improve the health of the community.”

Preparing for release

If prisoners are not adequately prepared for release, high rates of reoffending are to be expected.

Education within prisons is an obvious way of improving post-release employment prospects. There is some success here: 23% of prisoners being discharged achieved a qualification while in gaol. Almost all of those (20%) were trade certificates, though some people resumed secondary school studies.

But almost two-thirds of prisoners leave gaol without a job to go to. Secure employment is one of the essentials in avoiding reoffending and in turning lives around.

It’s a similar picture with accommodation.

Does it have to be like this?

Of course not. It’s like this because the community, and its leaders, have so little understanding of the people it puts in prison.

Collectively, we have made a choice. We have chosen to adhere to the idea that prison deters crime, when all the evidence shows that it doesn’t; that punishment, not rehabilitation, should be the main purpose of the criminal justice system; and that people living those desperate lives do so because it’s what they want.

Many other countries – the Scandinavian nations stand out – have demonstrated that other approaches work far better. Rehabilitation can work, but only if you’re serious about it. The single-minded focus on retribution and punishment may make victims and politicians feel better but it ensures that future crimes are committed rather than avoided.

Those beliefs are not based on evidence, and they’re certainly not based on common humanity. And our indulgence is costing us a lot of money, it’s endangering our safety, and it’s ruining far too many lives.