What lies behind the current hysteria around law and order?
There are three groups that are always pushing law and order — property owners, police and politicians.
Firstly, if you look at the country towns of western NSW with all their problems between Aboriginal people and the police, the law and order push has a lot to do with local Chambers of Commerce and local councils wanting to get young unemployed kids, who happen to be Aboriginal, away from shops and shoplifting.
Most crime in the community is not violent crime but property crime. Most of it's done by kids. The two biggest categories of crime — break and enter and car theft — are 50% done by kids under 18, and 80% by those under 21. And there are some specific categories of crime, like violent robbery, which are specific products of institutionalising people.
Secondly, police obviously have an interest in developing their own power base.
Thirdly, the politicians in NSW have exploited the issue. Obviously this isn't unique to NSW but it's greater than in other states. Look at the arrest and prison rates. Prison rates have risen enormously in NSW in the last five or six years; they haven't risen in most other states, and have even fallen in some.
Since the 1988 election — which the Labor party thinks it lost on the law and order issue — the main political parties have tried to be more hairy chested than each other. They don't care what rights they've trampled over in the pursuit of the law-and-order vote. And this in complete contradiction with all of the considered advice they've received.
This includes the findings of the Royal Commission into Aboriginal Deaths in Custody, which recommended a move away from the use of prisons. The opposite has happened and imprisonment rates have risen over 60% in that time. Aboriginal imprisonment rates have risen over 70% and deaths in custody have risen too.
How do you think the new "three strikes" law that's been proposed by Fahey fits into this?
It's another element of that culture of political opportunism that has become particularly rife in NSW. The media is involved in it too. The media feeds off politicians and politicians feed off the media. That tends to suggest that there's not something inevitable about the economic climate breeding law-and-order hysteria. Recession does induce politicians to look for scapegoats but the difference between states suggests that there's more to it than that.
Now, the easiest scapegoats are the sort of people that everyone can put the boot into, the Fred Manys of the world. [Many is a convicted rapist who recently won early release for "good behaviour". A hysterical media campaign to prolong his sentence failed.] Changing policy on the back of a Fred Many simply guarantees more Aboriginal deaths in custody and a lot of other horrors.
This is the tragedy of "three strikes and you're out". It's going to be some poor, young, illiterate, unemployed Aboriginal person who is going to have their life destroyed. And it's going to cost a lot because it takes $40,000 to $50,000 a year to keep someone in jail. Locking someone up for 30 or 40 years wastes millions of dollars.
Moreover, jail rates have zero effect on crime rates. The most common offences have a very low rate of conviction (for major property crimes the rate of conviction is about 10%). Also, these crimes are largely a juvenile phenomenon and locking up some kids is not going to stop others from committing them. If young people are unemployed and bored, feel alienated and are targeted by police, as Aboriginal kids are, then there's no end to it all — unless you get rid of kids altogether!
Labor leader Bob Carr is targeting school kids now quite overtly, and talking about policing school grounds. That's part of the sickness — refusing to treat the problem as one of motivation, employment and culture. It's like the foolish way that they've approached the drug problem over the last 10 or 20 years, trying to criminalise it out existence — a very expensive, frustrating and useless exercise.
Isn't the idea behind "three strikes", that the way to deal with people who have committed repeat offences is to get them out of society forever, just one step closer to capital punishment?
That's true and the US is an appalling model on which to base any sort of anti-crime strategy. Unfortunately people like Carr are great fans of US political systems and strategies. The US has the biggest prison rate on earth, greater than the Soviet Union ever had, with well over a million people in jail.
Both the Clinton administration and the Republicans are putting another $10 billion into building new prisons in the US. Something like one in every four young black males is in jail, on parole or on bail. Whole sections of society are criminalised. It's been extremely expensive: even privatisation of prisons doesn't change the economics much.
"Three strikes and you're out" has been there for about a year. It's also an old idea in the British system where there's a provision called the Key, the Habitual Criminals Act, under which they give up to seven years extra in jail for repeat offenders.
How much of the community law and order sentiment is real and how much of it has been manufactured by the media?
A lot of it has been manufactured by the scare tactics of media pundits and the politicians raising the fear of crime, particularly in the last three or four years. Studies indicate people's fear of particular types of crime has risen a lot over this period as a result of these sorts of campaigns. Therefore there's a receptive ear to the ignorant calls for harsh penalties on a handful of people as a "solution".
But these fears are out of all proportion to these categories of crime, the incidence of which is not much different to what they were ten years ago. Most categories of crime are down a little bit, one or two are up and a lot of things are much the same. For instance, murder hasn't changed a lot in the last 40 or 50 years.
What is happening to young people in jail? Are they being rehabilitated at all?
Virtually all political parties accept the informed principle that jail should be a sanction of last resort. Unfortunately they also increase jail numbers. It's a measure of the double-speak that has prevailed in criminology in recent years. The reason is that it is widely recognised that jail is an abject failure as a social sanction. It doesn't work for the community; it's expensive, it doesn't rehabilitate, it doesn't really deter crime at all because most people aren't thinking of going to jail when they commit crime. Most people who commit crime don't go to jail or even get apprehended, whether the offence is sexual assault, breaking and entering, car theft or fraud. There's only a high clear-up rate for murder and one or two other serious crimes.
Basically what we have in our jails is a group of institutionalised people, most of whom are being recycled. That's the awful reality — the same people are being recycled as symbolic scapegoats for concern crime.
There are some categories of crime that largely exist because of institutions — one of them is armed robbery. Based on European studies, something like three-quarters of armed robberies are committed by people who have been in institutions where there's a macho, male culture that creates that category of crime.
I also believe that, while sexual assault is fairly widespread, particular types of really violent sex crime are committed in very high proportion by people that have been in institutions. Fred Many is a really good example. So there's a definite cost in terms of crime by having these institutions of mass incarceration.
Another general conclusion that emerges from European studies is the futility of prisons as centres of rehabilitation. Prison does its most damage in adolescence, between the ages of about 16 and 24, when people are basically learning their social skills — how to manage money, how to have social relations, how to have sexual relations. If you're in an institution during those times, you don't learn those skills and basically miss out on something very crucial in your life.
That's part of the reason people can't function when they get out of jail. Some European studies show that after people have been in and out of jail five or six times, their statistical chances of not reoffending are almost zero. If young people go in and they go in again and their sentences are longer than a few months, there's a very good chance that there will suffer irreparable damage to their lives.
Are we already seeing a return to a more repressive style of imprisonment?
In NSW there's been huge neglect, until recently, of prison services and education. Under former corrective services minister Michael Yabsley the annual prison education budget was slashed back to under $2 million while over $100 million was spent every year building jails. Recently jail population growth has slowed down a little bit and the education budget has been doubled, although it's still very low.
But there's still an emphasis on forced work regimes in prison, which came down under the Labor government in the mid-1980s. Forced labour as opposed to retraining and education is a backward thing. One of the few sensible things for people in maximum security prisons is education and training schemes. They can't do much decent work until they get into minimum security jails and out into the community. The greatest damage to people is done in those maximum security institutions, where they are totally cut off from society.
Women are an expanding jail population, although they've always been a very small minority. They're a bit younger than the men, with more in there for fraud and drug-related crimes. The great majority of male prisoners are drug-related offenders and when jails are very desperate places, with very few meaningful things to do, the attraction of drugs is much greater.
Is there any resistance within the prison bureaucracy to these new measures?
When we're talking about law and order we're really talking about police and courts: prisons are just the end of the line and absorb a small part of the law-and-order budget. The police budget is about $1 billion in NSW, Corrective Services is $320-$330 million, and you've got the courts and the other legal services. The total approaches $2 billion per year.
In corrective services, some people in educational programs have been able to expand those programs a little with the easing of the pressure of the Yabsley regime. A couple of programs have come through like pre-trial diversion for certain categories of incest offenders.
Then there are the women's transitional centres, also for women with babies, basically in between minimum security and half-way house accommodation. That's quite a progressive initiative that almost won bipartisan support, except for Sandra Nori, the local Labor member in the inner-west, who lined up with the yuppies against it being located in Glebe. As a result the first transitional centre is being set up this year at Parramatta. They plan to set up one every year after that, which is actually quite a good initiative.
At the same time there's a powerful empire-building drive inside Corrective Services to hang on to their capital works budget. The major problem here is that in expanding the system it's simply going to be filled: it reduces the pressure on politicians and the courts to stop sentencing people to jail. So one of the important jobs for reformers is to stop the physical expansion of the system.
Is Carr's law-and-order push a new shift to the right for the ALP?
It's not enormously new. Since their defeat in 1988, they've followed a very conscious strategy of not opposing the draconian penalties that the Liberals introduced. Labor has consented to all the worst Liberal measures, including the 1989 sentencing act, unfortunately dubbed by the media as "truth in sentencing". In reality it means longer sentences.
Labor also largely supported the Liberals in abolishing the dock statement, even though it was ALP policy to maintain it. The dock statement was a device where someone who was worried about being cross-examined — say, someone with a criminal record, illiterate and unable to stand up to an articulate prosecutor — was at least able to say something in their defence.
Labor has had input from progressive people over the years and know that what they are doing is damaging. It's pure and sheer opportunism which seems worse from Labor than Liberals, because you expect Liberals to represent property owners' conservative and reactionary points of view. You expect Labor to understand what reformers of criminal justice are on about, but they are totally ignoring that.
How can resistance to the present law-and-order hysteria find political expression?
Because of Labor's abysmal performance and opportunism, in recent years a lot of reformers have gone outside the normal process of lobbying parliamentarians. They've created networks outside of mainstream politics to build some sort of consensus to which the major parties would have to respond. Lobbying Labor on reform issues is a waste of time. It's better to build a movement outside and force Labor to accommodate, co-opt or at least be forced to deal with those sorts of issues.
The independents in the lower house have played a progressive role in raising issues. The Wood Royal Commission [into police corruption] would never have happened and some sense of accountability of police behaviour has at least been imposed through placing a lot of police under threat of being exposed. No major party would have endorsed that. Labor passively followed along, but it was people like South Coast independent John Hatton that pushed it through.
One of the best things that's happened in NSW has been the independents' control of the lower house. There has been a different voice there. Importantly, that's the beginning of a culture that will hopefully challenge the two-party system.