How our legal system entrenches inequality

The incarceration rate in Australia is exploding with an 25% increase in the prison population over the last 5 years. Australians are now incarcerated at a higher rate than any European country. This is happening at a time when violent crime is on the decrease. So why is the prison system expanding so rapidly?

“Law and order” fearmongering from politicians and the mainstream media gives the impression that serious crime is on the rise, but this is not the case. Sensationalist news coverage of crime gives cover to governments investing greater tax dollars in the private prison industry. While federal and state governments claim they desperately need to reduce spending, an estimated $2.6 billion is spent annually on locking up more prisoners than ever before.

The for-profit prison industry is expanding in Australia at an alarming rate. New monster prisons have been commissioned by state governments across the country: a 5,000 capacity prison in Sydney’s southwest, a 1,700 capacity prison in Grafton, a 1,000 capacity prison in Melbourne’s west, as well as a new youth jail and a 200 capacity new prison near Geelong. The new Sydney prison is planned to be the size of Byron Bay and will overtake the huge Acacia prison in Perth to become Australia’s largest prison.

As incarceration rates soar before these new prisons have been built, a crisis has been created in the current system. In some prisons crowding has led to housing three prisoners in each cell. Tensions from overcrowding, longer time spent on remand and attacks on prisoner rights have led to protests and riots in some facilities.

But simply building new prisons is not the answer. As new monster-capacity prisons are commissioned there will be increasing demand for them to be filled, especially as they are built to turn a profit. Instead, we should be looking at ways of keeping non-violent offenders out of the prison system and investing money into services and infrastructure that can further reduce crime.

Less than 25% of those incarcerated in Australian prisons have committed a violent crime – the majority are in for property offences that are often a result of poverty. Approximately 25% of prisoners were homeless when they were incarcerated and a staggering 43% are homeless after leaving prison. The outrageous costs charged by largely unregulated rooming houses that cater to ex-prisoners make it almost impossible for them to climb out of debt. By perpetuating the cycle of homelessness prisons have become a ridiculously expensive way to house Australia’s growing homeless population. Instead of investing in higher capacity prisons, governments should be investing in more public housing to address the homelessness and housing insecurity that can often drive people to commit theft and other petty crimes.

An estimated 50% of male prisoners and 60% of female prisoners have a reported history of mental illness or chronic physical health issues. Yet prisoners are denied access to Medicare while in prison meaning many do not receive the health care they need. This is especially a problem for those suffering from addiction. It varies state-to-state, but many prisoners are denied access to drug and alcohol treatment while in prison. Some who were already in rehabilitation at their time of incarceration are allowed to continue, but many are denied the right to start rehabilitation programs while in prison! This is part of a systemic failure to address addiction by prioritising legal punishment over rehabilitation.

Around 50% of prisoners were unemployed when incarcerated and many more find it impossible to find employment after release. An estimated 80% of ex-prisoners survive on welfare. With the federal government increasing it’s attacks on welfare recipients, this is no basis on which to build financial security and stability.

A combination of these factors has led to a dramatic increase in the rate of reoffending. Now 44% of prisons return to prison after release.

When looking at the factors that lead to crime, education is a major influence. A shocking 16% of prisoners never completed high school and just 1 in 3 made it past Year 10. Yet very few prisoners are offered education opportunities while incarcerated. Less than half are offered the chance to study while in prison and only 1 in 3 of them take up the opportunity.

The lack of prisoner rights and access to services like health care, education and job training while incarcerated, and the lack of housing and employment opportunities upon release, create a vicious cycle of poverty and reoffending. Very little is being done to address this. An estimated 90% of ex-prisoners receive no assistance to support their transition back into society upon their release.

The inequality of the legal system is also apparent in who is sentenced to prison. Mandatory minimum sentencing, a policy that politicians love but has no proven benefits and many well-established flaws, means many first-time, non-violent offenders are given prison sentences. Massive cuts to funding for legal aid means those who can’t afford expensive lawyers often get no legal assistance. While 25% of Australians will at one time experience a legal problem that requires legal assistance, funding cuts have meant just 0.3% of the population now have access to legal aid. This has led to tens of thousands of people being forced to represent themselves in court. The wealthy have no such problem.

In fact, very few corporate crimes are punished with prison terms. Companies get away with billions of dollars of theft through tax evasion, and even manslaughter through workplace negligence, yet get off with minimal fines and no jail time. Meanwhile, it is illegal for workers to go on strike in Australia outside of the very limited window of protected bargaining. In Australia there is one set of laws governing the rich, and another set that govern the poor and working class.

There is no section of Australian society more disadvantaged by the legal system than Aboriginal people. Aboriginal people suffer some of the highest incarceration rates in world. In states like Northern Territory a set of laws have been introduced to specifically target Aboriginal people. While much of the rest of Australia consider drinking the official national pastime, an Aboriginal person in certain areas of the Northern Territory can be jailed for six months for having a can of beer!

Racist explanations for the astronomical  incarceration rates of Aboriginal people are a cover for the ongoing victim blaming, dispossession and impoverishment of Aboriginal communities. The fact that almost 50% of Aboriginal men are likely to be imprisoned in their lifetime ensures Aboriginal communities have little opportunity to escape the cycle of poverty.

The situation is even more dire for Aboriginal youth. Young Aboriginal men are statistically more likely to go to prison than university. In 2016 a national scandal broke when inhumane and abusive conditions in youth jails made headlines. An image of a 10 year old Aboriginal boy, Dylan Voller, strapped to a chair with a hood over his head drew comparisons with the treatment of prisoners in Guantanamo Bay. Under mass public pressure the Turnbull government was forced to announce a Royal Commission into youth detention. But the Royal Commission into Aboriginal Deaths In Custody two decades ago failed to lower Aboriginal incarceration rates or stop deaths in custody. In fact, the situation has dramatically worsened with Aboriginal incarceration rates skyrocketing from 1 in 7 prisoners in 1992, to 1 in 3 prisoners today. This is why many people are skeptical the new Royal Commission will advance the structural change that is necessary.

What this illustrates is a justice system that is far from just. Instead of increasing rates of incarceration and expanding the prison industry, most social justice advocates argue for abolishing mandatory minimum sentencing laws, releasing non-violent offenders earlier and reinvesting in community legal services to stop people from ending up in prison unnecessarily. An estimated 10,000 people are currently in prison on remand, having yet been sentenced. The cuts to legal aid have had an enormous impact on slowing down the court system, meaning people are spending months in custody awaiting court dates.

It costs taxpayers around $100,000 per year to keep each prisoner incarcerated. Releasing those who pose no threat to the community could free up billions of dollars to be spent on housing, education, healthcare, and legal aid to further reduce crime and keep people out of prison.

This growing crisis is not accidental. Politicians love “law and order” policies that make them appear “tough on crime” and keeping communities safe. In reality, these policies increase the rate of reoffending and condemn many more people to a life of poverty. Billions of dollars are wasted on for-profit prisons because corporate donors expect these investment opportunities in exchange for their political donations. Cuts to public services exacerbate the causes of crime, yet both of the major parties in Australia prefer to waste money on new prisons rather than invest in community infrastructure.

For as long as politicians need scapegoats and prison corporations want to make profits, Australia’s prison population will continue to rise. The introduction of anti-protest legislation and the criminalisation of trade union activity offers governments more social control in times of increasing disaffection with the inequalities of capitalism and the growing gap between rich and poor. Only in a society run in the interests of all, rather than the profit interests of the rich, can a fair justice system be implemented.

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