Scaring up the votes
January 27, 2003
Mark Findlay remembers the moment vividly.
Mid-interview with a "prominent Sydney radio talkback host", the professor of criminology and deputy director of Sydney University's Institute of Criminology was asked why judges in NSW were sentencing fewer people to jail for shorter periods of time.
"I told him he was wrong on both counts and in fact, that very day, the Judicial Commission had released new statistics which clearly showed that the reverse was true," says Findlay. "His response was that the stats didn't matter because that's not what the public believe.
"What that demonstrated to me was not that the public are stupid nor that the talkback host is particularly cynical. What it showed clearly to me is that the facts about these issues are simply not getting out there.
"And our politicians use that lack of information and turn it into political capital."
Findlay's vignette, instantly recognisable, is a telling one. Not only does it illustrate the problematic nature of the current law and order debate in NSW, it also provides a graphic example of a phenomenon unfolding in many jurisdictions throughout the Western world.
Dubbed "penal populism" , it is a theme which has led to a rise in both the rhetoric and practice of severe punishment at a time when public opinion has played an increasingly pivotal role in sentencing policy and reforms.
Dr David Indermaur of the University of Western Australia is one of four international criminologists who have researched and documented the phenomenon in systems in Canada, New Zealand, Britain, Australia and the US.
In a new book, (Oxford University Press), the authors track the burgeoning influence of politics in penal policies as well as the increasingly intimate relationship between community views and sentencing reforms.
Indermaur and his co-authors say that while attempts to play the "crime card" can be traced as far back as American elections in the '60s, there has been an explosion in this type of politicking since the '90s.
The advent of polling over the last decade, the criminologists argue, has resulted in politicians increasingly turning to crime in their appeal to the public, identifying problems they promise to "fix" via sentencing changes.
Indermaur says politicians have begun to respond to the public fear of crime, not to explore answers or solutions but to exploit anxiety for political advantage: "It is not about what they [politicians] can do about crime and what we can do for the people, but what crime can do or deliver for them."
The patterns are shared across the world. Extremely violent, if rare types of crimes - those committed by escaped prisoners, murders committed by juveniles or prisoners released on parole - are used to fan the fear and illustrate the kind of problems the politician can promise to "eliminate" by enacting punitive, simplistic sentencing reforms.
Mandatory sentences, grid sentencing, the "three strikes and you're in" statute in the US - and promised in NSW in the 1995 election - are all graphic examples of sentencing reform on the run.
According to the authors, by the time proper research has demonstrated the futility of many of these "solutions" to crime, "the parade has moved on and the election is over".
The reforms, however, generally remain in place, says Indermaur.
The irony is, of course, that the worldwide push towards harsher sentencing has mushroomed at a time when crime rates in many jurisdictions have remained stable or declined.
Australia is not immune to this trend.
Over the past 15 years, every Australian state and territory has reformed its sentencing legislation at least once, often in the context of an election campaign and amid increasingly punitive rhetoric from politicians and "the community". Mandatory sentencing has already been introduced in Western Australia and the Northern Territory, and both major parties have pledged similar systems for NSW, post-election.
THE origin of this increasingly punitive culture is most often traced to the early '70s, when rises in crime rates - real or imagined - began to be exploited by opponents of the more liberal penal strategies spawned by the anti-capital punishment campaigns of the '60s. Experiments with more humane strategies, such as community sentencing, weekend detention, probation and parole, were seized on by conservative politicians - and, later, by Tony Blair's new-style Labour and, in NSW, Bob Carr.
The so-called "law and order" auction in NSW probably had its genesis in the lead-up to the 1988 state election, in the wake of disastrous revelations about the corruption of Labor's early-release prison scheme.
The then Liberal opposition leader, Nick Greiner, built a powerful election policy platform, underpinned by harsh campaign rhetoric, on significant anti-corruption and criminal justice reforms. The early-release scheme, which allowed prisoners to earn time off for good behaviour, spawned what Greiner called "truth in sentencing" legislation.
And while the ill-fated Labor premier, Barrie Unsworth, persisted with the gun-control package often credited with his alienation of rural voters and resounding loss, Greiner persisted with promises aimed squarely at city crime: the Sentencing Act, shorthand for the demise of early-release schemes, coupled with big increases in sentences for murder, rape and gun crimes, resonated with the electorate and Labor was routed.
That now-entrenched policy, like so many populist reforms documented by Indermaur and his colleagues in other countries, had a dramatic effect on prison populations in NSW but very little effect on crime statistics.
In just four years, prison terms rose by between 25 and 33 per cent, with the prison population increasing from 4000 in 1987 to 6500. Crime statistics, however, didn't change significantly, with most offence categories, bar two, remaining stable.
In 1991, Carr's Labor opposition seized the law and order agenda with alacrity. He adopted a style of rhetoric previously associated with conservative politicians, pledging that "hard-drug pushers would die in jail" and "hoodlum patrols would reclaim the streets for our citizens and make them safe again".
The Coalition's pledges for new gun laws and 1600 extra police succumbed to a Labor "assault" on property crime, an issue which party polling showed was resonating with voters. Carr came within a whisker of winning government.
By 1995, the pattern was well entrenched and both sides had engaged with ferocity. Premier John Fahey advocated a US-style "three strikes and you're in" jail policy despite widespread criticism, while Carr created an entirely new category of crimes, labelled "horrific", pledging perpetrators would receive mandatory life sentences. Drug traffickers, Carr promised, would "die in jail" and Labor's TV campaigns accused the Liberal government of "setting a drugs boss free".
Carr won and when he took his team to a second election in 1999, law and order formed an integral plank of his political discourse. Police Commissioner Peter Ryan, then at the height of his popularity (so much for the separation of powers), was blatantly used as Labor's trump card.
The law and order "auction" had reached new heights.
TODAY, two months before the poll at which Carr will try to win an historic third term in office, both sides remain welded to the now ageing political aphorism coined half a world away by Tony Blair: "Tough on crime, tough on the causes of crime."
Despite 10-year statistical trends which show indisputably that the average lengths of imprisonment for offences like murder, assault and sexual offences have remained stable (as have crime rates), the campaign to March 22 will once again see law enforcement and crime and punishment hold positions as important as the electoral bread-and-butter issues of health and education in the policy platforms of both major parties. Compulsory minimum sentences, tougher punishment for child sex offenders, tightening of bail provisions and costly pledges to ramp up police numbers and the visibility of law enforcement efforts are already integral to election pork-barrelling.
And the campaign proper has yet to start.
SO WHAT is the legacy of this long push for tougher sentences? Without doubt, more people are going to jail than ever before. Since 1990, for example, the rate of imprisonment in NSW had risen from 86 to 113 inmates per 100,000 people eight years later - a staggering 31 per cent rise.
Imprisonment figures for the seven years of the Carr Administration are even more stark. Since 1997, the average daily population of prisoners in full-time custody has risen from 6342 to 8000 last year. Thanks to changes in bail laws, which will make it more difficult for previous offenders or those who offend while under a court order to be granted bail, a record high of 9000 inmates is forecast by 2005.
The annual budget for the NSW Department of Corrective Services has ballooned from $341 million in 1995-96 to more than $530 million, with capital works budgets climbing from $49 million to close to $90 million.
New jails have meant the Government last year had to budget over two years for a new remand prison ($135 million), new prisons at Kempsey ($80 million)and in the Central West ($90 million), and a new women's prison ($54 million).
Mark Findlay says the shift in public debate on law and order in just a decade and a half is stark: "Fifteen years ago, there was very serious argument not only for less custodial treatment but for closing jails down.
"Current law and order politics in NSW appears not to focus on the fact that traditional anti-crime methods are failing, but on extravagant but narrow and negative use of limited resources verging on the negligent.
"My argument is that you need to use conventional criminal justice resources in a more intelligent manner. For instance, all those who are in NSW's prisons are not likely to have a positive outcome from the experience.
"We don't use jail selectively, we are using more and more of the same medicine. And yet all the evidence shows that more jails wastes money and doesn't mean less crime."
NO MATTER what radio talkback hosts or their political guests say, in NSW, as more people go to jail for longer, crime rates are not showing great improvements, either.
Indeed, despite penalties becoming ever harsher, between 1997 and 2001 major offences like murder, break-and-enter and motor vehicle theft remained stable. Assault rose by a hefty 24.5 per cent and malicious damage to property by 20.6 per cent. The only category of offences to drop during this period is robbery with a firearm, down by by 22.7 per cent.
The latest round of crime statistics, due to be released in early March, is not expected to reveal dramatically different trends.
For experts like Indermaur, Findlay and NSW's Crime Statistics head, Don Weatherburn, deterring crime needs much more than building bigger jails and locking more people up.
If the chances of getting caught remain small for the majority of property crimes, for example - way less than 10 per cent for burglary and car theft - offenders are unlikely to be frightened off by the threat of jail terms.
Findlay is adamant that politicians need to look more closely at the integrated strategies which are shown to work, are better targeted and are more financially responsible than those which are a disproportionate drain on criminal justice budgets.
Weatherburn adds that at least part of the answer lies with the use of crime experts to formulate and test crime-control policies which actually work: "While we have a long history of getting legal experts to advise government on law reform, it is only in recent times that we have started to get crime experts to advise on crime control policy.
"You can see that in the standard of research on crime control and prevention. It is well below that of health promotion or education, for example. The surest way to quell public fear about crime is to show some success in dealing with it, finding ways that work to reduce it."
David Indermaur and his colleagues overseas go a step further, advocating a 10-point plan to put a brake on the excesses of "penal populism". This includes forcing better information and communication from the court system and its judges, as well as a radical proposal to create an independent institution devoid of politicians which would provide a kind of "policy buffer", helping to formulate, advise and test new penal proposals.
What everyone agrees on, however, is that the "penal arms race" simply must stop.