The punitive obsession

When in the early 19th century the study of the punishment of crime and of prison management acquired the status of a science called penology, most Western states were in the process of reducing their reliance on capital punishment and developing new systems of incarceration. Penologists and politicians debated and experimented with disciplinary regimes and prison architecture, and finally came down in favour of a system of partial or complete solitary confinement.

The theory, strongly influenced by religious groups such as the Pennsylvania Quakers, was that “insulation” of the criminal prevented cross-contamination, prepared the mind for reforming influences, promoted “penitence” (hence the penitentiary) and led to rehabilitation.

For the most part, then or since, few of these objectives were ever achieved. But the belief in the necessity of punitive imprisonment has persisted and spread word wide. Moreover, the belief in capital punishment never disappeared, and its use has fluctuated sharply in different eras and countries, despite widely accepted historical and scientific evidence that it is ineffective as a deterrent and makes criminal justice systems arbitrary, uncertain, capricious and frequently unjust.

In the last 30 years capital punishment has become an international yardstick against which respect for human rights can be measured. The push for its abolition has had considerable success. When Amnesty International convened an International Conference on the Death Penalty in Stockholm, Sweden, in 1977, only 16 countries had abolished capital punishment for all crimes. Today the figure stands at 86, with over 40 countries having abolished death for all crimes since 1990; another 11 countries have abolished the death penalty for all but exceptional crimes (such as wartime offences), and a further 25 countries are abolitionist in practice, having as either policy or established practice not carried out any executions for the past 10 years or more.

Only 74 countries and territories retain and use the death penalty, but the number of countries which actually execute prisoners in any one year is much smaller. During 2004, at least 3,797 people were executed in 25 countries, with 97 per cent of all known executions being in China, Iran, Viet Nam and the United States of America. Each year since 1997 the United Nations Commission on Human Rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium on executions, with the number of supporting states steadily increasing.

In America, the only Western democracy to carry out frequent executions, the issue of capital punishment is constantly debated. The consensus against executions in the 1960s and early 1970s as an unconstitutional “cruel and unusual punishment” has swung towards widely varying application in different states. There are more than 3,400 prisoners on “death row” in US prisons. This is despite the fact that, since 1973, evidence that they were innocent has led to the release of 122 prisoners sentenced to death. In 2004 there were six such cases, and three up to December 2005. Forensic science, particularly DNA sampling, has been crucial. However, the “law and order” and “tough on violence” mantras often prevail. As Governor of Texas from 1994 to 2000, President George Bush presided over 152 executions.

As is often the case, specific executions focus debate. In December 2005 Nguyen Tuong Van, a young Australian arrested in transit to Melbourne and convicted of heroin smuggling, was executed in Singapore, despite appeals for clemency from the Australian Government, lawyers, religious leaders and others. His death sentence was mandatory, illustrating the inherent injustice of all mandatory sentencing. Moreover, this execution and other cases in Bali have raised the issue of Australian police co-operation with states still executing people. Attorney General Phillip Ruddock correctly described capital punishment as “barbaric”, ignoring the blatant hypocrisy of his long-held position on Guantanamo inmate David Hicks.

In December 2005, Stanley “Tookie” Williams, executed at San Quentin, California, for murder, became one of the slightly more than the 1,000th American executed since the USA Supreme Court reinstated the death penalty in 1977. Williams, one of the founders of the notorious “Crips” street gang in Los Angeles in the early 1970s, was convicted of four murders on less than convincing evidence (he always claimed innocence) in 1981. While on death row he became an anti-violence advocate, renounced gang culture and wrote a series of childrens books about the dangers of gang life.

California Governor Arnold Schwarzenegger rejected his final appeal for clemency, saying he was clearly guilty and had never admitted guilt or shown remorse. Among other things, the public debate surrounding this and other cases emphasised the clear racial bias against Afro-Americans evident in the statistics.

In those countries where the death penalty has been abolished, imprisonment has become the panacea for all social ailments. In New South Wales, according to recent Department of Corrective Services figures, following an increase of 7 per cent last year, there are now more than 9,000 people in gaol. This is about one in 600 adults in the state, a rate that has almost doubled since the mid-1980s.

The average prison population has increased by about 400 inmates - equivalent to one extra prison a year - for the last seven years. These increases have been driven by the legislative outcomes of the never-ending “law and order debate”, particularly tougher sentences, restrictive sentencing guidelines, tougher bail application rules and the targeting of repeat offenders. More than half the prisoners are serving sentences longer than two years.

NSW prisons also have tough internal regimes. Inmates are allowed fewer hours out of their cells than any other state. But the benefits of all this are highly dubious. NSW has the highest rate of recidivism (re-offending) in Australia. Professor Chris Cunneen, Director of the NSW Institute of Criminology, has made the point: “You could argue that you’re providing community protection by putting people in custody but you are not providing any rehabilitative impact.”

One of the worst aspects of the punitive obsession is the unthinking willingness to impose minimum sentences, in many ways a disguised push for the even more extreme “mandatory sentencing”. Both seriously damage the discretionary role of the courts, an indispensable component of genuine fairness.

As NSW Chief Justice Jim Spigelman stated in 1999, “Unless judges are able to mould the sentence to the circumstances of the individual case then, irrespective of how much legislative forethought has gone into the determination of a particular regime, there will always be the prospect of injustice”.

Another unacceptable aspect of the law and order bandwagon is the effect on minorities. The incarceration rate for Indigenous Australians is 1 in 50 in NSW, largely as a result of tougher sentencing and tougher bail law requirements for supervision and accommodation. Professor Cunneen has pointed out: “The changes in bail laws particularly affect marginalised groups, because they are less likely to be employed or at school.” In short, prisons are becoming large-scale warehouses, many inmates being on remand, not yet tried, let alone convicted.

The whole “law and order” agenda is driven by a media willing to label and stigmatise particular groups, and politicians seeking cheap publicity and electoral support. Both support morally bankrupt and largely inefficient policies. The recent reactions to the racially-motivated violence in Sydney’s beachside suburbs in December 2005 fully illustrate the utterly irrational essence of the punitive obsession.

In mid-January the Leader of the NSW Opposition, Peter Debenham, attacking the Government for being “soft” on one group of participants, stated that the authorities should “lock up 200 Middle Eastern thugs”. When the Lebanese community justifiably deplored this, he demonstrated his fairness by demanding the arrest of 1,000 young gang members (including not just those of Middle Eastern background) involved in “crime, organised crime and drugs”.

Implementation of such policies would require at least two new prisons (or simply worsen the present overcrowding), would victimise and criminalise youth from stereotyped ethnic minorities, create a future larger group of real criminals, create serious injustices and resentment, and do little to solve the problems at the core of the conflict. Of course, Premier Morris Iemma responded by calling Debenham a “liar”, and assuring the public that his Government was definitely not “soft on ethnic crime”.

The essential problem with the punitive obsession is that is not only ineffectual, expensive and counter-productive, but it is lazy rhetoric posing as policy, preventing the serious search for constructive alternatives. It is morally bankrupt and inherently unjust. Moreover, it is in itself a form of violence, which fosters an even broader culture of violence and tolerance of injustice.