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Smart Justice: Lessons from the United States to address Australia’s emerging incarceration crisis

By Mia Schlicht

Australia’s imprisonment rate has increased sharply in the last four decades and governments are spending increasing amounts of taxpayer funds on maintaining overburdened prison systems.

The author argues that Australia's over-reliance on incarceration, particularly for non-violent offenders, is not only financially unsustainable but also fails to effectively address crime and often perpetuates a cycle of recidivism. The essay advocates for a shift in focus towards alternative sentencing options, such as electronic incarceration, offender-employment programs, and youth rehabilitation ranches, coupled with increased investment in proactive policing and community-based initiatives.

Key recommendations

  • Reverse the bureaucratisation of police forces, focusing police efforts on law and order, and redirecting savings from reduced incarceration of non-violent offenders.

  • Implement electronic incarceration for non-violent crimes, using technology to monitor and restrict the movements of offenders, allowing them to continue working and contributing to society.

  • Non-violent offenders should be given the opportunity to work for willing businesses, earning award wages and contributing to society while providing restitution to victims.

  • Require offenders to pay a significant portion of their income as tax until the total amount wrongfully obtained is repaid threefold – with one-third going to the victim and two-thirds to the state.

  • Establish youth rehabilitation ranches to provide education, skills training, and support for young offenders.

Melbourne: Institute of Public Affairs, 2024. 64p.

Practice Recommendations Regarding Technologies in Probation

By The Confederation of European Probation.

Probation organisations are dynamic organisations that usually have a tradition of accommodating and assimilating appropriate working methods commonly accepted within the society in which they operate. In a probation context, these working methods broadly aim to support both the essence and goals of probation. We can see evidence of this in the ongoing professional discussions, development projects, and technology being used and incorporated into probation practice. The purpose of these practice recommendations is to support jurisdictions to reflect upon certain issues before developing and using technology, undergoing digitalisation or considering hybrid working models. First, it is recommended for all organisations providing probation services to consider the goals of probation when considering using technology and digitising services. The second recommendation is to consider the essence of probation and the goals of probation when choosing technology or digitalised working processes. In practice, this could mean, for example, that the chosen technology should enhance building a positive and constructive working relationship with the client and facilitating rehabilitation and undertaking change work with the probation client. Another practical positive impact could be that co-work with other stakeholders and service providers becomes more flexible. The third aim of the practice recommendations is to share the benefits and good practices in using technology and digitalisation with members of the Confederation of European Probation (CEP) and other counterparts. The core purpose of these practice recommendations is to highlight the recommendations of the Council of Europe, such as the Probations Rules, Recommendations on community sanctions and measures, Electronic Monitoring and Artificial Intelligence defined, regarding the use of technology and digitalisation in probation. The fourth aspect is that all members of the European Union must consider and comply with the EU Directive on Data Protection and Security (GDPR). 

Utrecht, NETH: CEP Expert Group on Technology , 2024. 33p.

The Many Roads from Reentry to Reintegration: A National Survey of Laws Restoring Rights and Opportunities after Arrest or Conviction

By Margaret Colgate Love

The problem of collateral consequences calls to mind Supreme Court Justice Oliver Wendell Holmes Jr.’s famous line: “The life of the law has not been logic: it has been experience.” U.S. criminal law itself is not theoretically pure. In the area of civil law, in particular commercial law, dozens of uniform laws are on the books, drafted by experts, many of which, such as the Uniform Commercial Code, have been widely adopted. But in a country where we evaluate criminal justice policies based on a melange of principles - retributivist, utilitarian, economic, religious, pragmatic, intuitive, and emotional - there is and could be no Uniform Penal Code.1 Criminal law is inconsistent across states, and even within states, in its underlying justification or rationale, and the reasons that particular rules or practices exist. The Model Penal Code has been widely influential, but—as designed—states adopted only the pieces they liked and heavily modified them. Disagreement about how to treat someone who has been arrested or prosecuted after their criminal case is concluded is, if anything, even more intense. The collateral or indirect consequences of their experience may be divided into four main types: Loss of civil rights, limits on personal freedom (such as registration or deportation), dissemination of damaging information, and deprivation of opportunities and benefits, each of which may be justified and criticized for different reasons. Accordingly, criminal law practitioners and scholars disagree about the fundamental nature and purpose of collateral consequences. To the extent the public at large ever thinks about them, they also hold a range of views. There is no consensus about whether collateral consequences in general or particular ones should be understood as further punishment for crime or prophylactic civil regulation, as a reasonable effort to control risk or as an unconstitutional and immoral perpetuation of Jim Crow, or, perhaps, understood in some other way. Advocates, analysts, and lawmakers will never be in a position to argue persuasively “because collateral consequences rest on Principle X, it follows that they should apply in and only in Condition Y, and must be relieved under Circumstance Z.”  Yet, the practical problem of collateral consequences looms large. With their massive expansion in recent decades, those who experience collateral consequences firsthand know that they cannot become fully functioning members of the community without finding a way to overcome them. The economic dislocations caused by the COVID-19 pandemic underscore the practical implications of collateral consequences: With individuals desperate for money and opportunity, and businesses hungry for workers, the need for a sensible policy to minimize employer concerns about risk is clear. And while there remains no compelling necessity for all states to have the same penalties for armed robbery or cattle rustling, collateral consequences are a national economic problem affecting whole communities that might justify a federal, or at least a uniform, solution. Fortunately, agreement on underlying principles is not required to agree on particular policies.2 Most Americans agree that people arrested or convicted of a crime should not be relegated to a permanent subordinate status regardless of the passage of time, successful efforts at rehabilitation and restitution, and lack of current risk to fellow Americans. Finding ways to restore their legal and social status is a compelling necessity, given the array of collateral consequences adversely affecting tens of millions of Americans, their families and communities, the economy, and public safety itself. To adapt a line from Justice Anthony Kennedy’s 2003 speech on criminal justice to the ABA, too many people are subject to too many collateral consequences for too long. At the same time, substantial majority likely agree that public safety requires excluding those convicted of recent criminal conduct from situations where they present a clear and present danger of serious harm. Even if it is impossible to identify a s     

Arnold, MO: Collateral Consequences Resource Center (CCRC) , 2022. 129p.

Positive Credentials That Limit Risk: A Report on Certificates of Relief 

By Margaret Love

This report deals with a form of relief from the collateral consequences of a criminal conviction that is less far-reaching than expungement or other forms of record clearing but is potentially available to more people at an earlier point in time. These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence. At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important addition to a state’s reentry scheme, and serve as a bridge to a more thorough forms of record relief like expungement. We believe that, rather than competing as alternative forms of relief, certificates, and expungement can operate as complementary parts of a structured system of serially available criminal record relief. Yet it appears that certificates have been largely ignored in many states by courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them. State court systems have failed to collect, track, or aggregate basic data like the number of certificate applications, grants, and denials, a failure that makes it almost impossible to evaluate a certificate’s effectiveness in a given state. At the same time, in a promising development, certificates are being used by prison and parole agencies to facilitate reentry for those exiting prison or completing supervision. Given the perceived limits of record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself. This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them. A follow-up study will look at the state of executive pardoning  

Arnold, MO: Collateral Consequences Resource Center, 2024. 42p.

The Distribution of Carceral Harm: County-Level Jail Incarceration and Mortality by Race, Sex, and Age 

By Anneliese N. Luck

Jail incarceration remains an overlooked yet crucial component of the U.S. carceral system. Although a growing literature has examined the mortality costs associated with residing in areas with high levels of incarceration, far less is known about how local jails shape this burden at the intersection of race, sex, and age. In this study, I examine the relationship between county-level jail incarceration and age-specific mortality for non-Hispanic Black and White men and women, uniquely leveraging race-specific jail rates to account for the unequal racial distribution of jail exposures. This study finds evidence of positive associations between mortality and jail incarceration: this association peaks in late adulthood (ages 50–64), when increases in jail rates are associated with roughly 3% increases in mortality across all race–sex groups. However, patterns vary at the intersection of race, sex, and age. In particular, I find more marked and consistent penalties among women than among men. Additionally, a distinctly divergent age pattern emerges among Black men, who face insignificant but negative associations at younger ages but steep penalties at older ages—significantly larger among those aged 65 or older relative to their White male and Black female counterparts. Evidence further suggests that the use of race-neutral incarceration measures in prior work may mask the degree of harm associated with carceral contexts, because the jail rate for the total population underestimates the association between jail rates and mortality across nearly all race–age–sex combinations. These findings highlight the need for future ecological research to differentiate between jail and prison incarceration, consider the demographic distribution of incarceration's harms, and incorporate racialized measures of exposure so that we may better capture the magnitude of harm associated with America's carceral state.

Demography (2024) 61 (5): 1455–1482.

Access to Care and Outcomes With the Affordable Care Act for Persons With Criminal Legal Involvement: A Scoping Review

By James René Jolin, ; Benjamin A. Barsky, ; Carrie G. Wade; et alMeredith B. Rosenthal, PhD3,5

 IMPORTANCE - By expanding health insurance to millions of people in the US, the Patient Protection and Affordable Care Act (ACA) may have important health, economic, and social welfare implications for people with criminal legal involvement—a population with disproportionately high morbidity and mortality rates. OBJECTIVE To scope the literature for studies assessing the association of any provision of the ACA with 5 types of outcomes, including insurance coverage rates, access to care, health outcomes, costs of care, and social welfare outcomes among people with criminal legal involvement. EVIDENCE REVIEW - The literature search included results from PubMed, CINAHL Complete, APA Psycinfo, Embase, Social Science Database, and Web of Science and was conducted to include articles from January 1, 2014, through December 31, 2023. Only original empirical studies were included, but there were no restrictions on study design. FINDINGS Of the 3538 studies initially identified for potential inclusion, the final sample included 19 studies. These 19 studies differed substantially in their definition of criminal legal involvement and units of analysis. The studies also varied with respect to study design, but difference-in-differences methods were used in 10 of the included studies. With respect to outcomes, 100 unique outcomes were identified across the 19 studies, with at least 1 in all 5 outcome categories determined prior to the literature search. Health insurance coverage and access to care were the most frequently studied outcomes. Results for the other 3 outcome categories were mixed, potentially due to heterogeneous definitions of populations, interventions, and outcomes and to limitations in the availability of individual-level datasets that link incarceration data with health-related data. CONCLUSIONS AND RELEVANCE-  In this scoping review, the ACA was associated with an increase in insurance coverage and a decrease in recidivism rates among people with criminal legal involvement. Future research and data collection are needed to understand more fully health and nonhealth outcomes among people with criminal legal involvement related to the ACA and other health insurance policies—as well as the mechanisms underlying these relationships.  

JAMA Health Forum. 2024;5(8):e242640. doi:10.1001/jamahealthforum.2024.2640

 Patchwork Protection: The Politics of Prisoners’ Rights Accountability in the United States

By Heather Schoenfeld, Kimberly Rhoten, and Michael C. Campbell

In recent years US prisons have failed to meet legally required minimum standards of care and protection of incarcerated people. Explanations for the failure to protect prisoners in the United States focus on the effects of the Prison Litigation Reform Act (PLRA) and the lack of adequate external oversight. However, very little scholarship empirically examines how different systems of accountability for prisoners’ rights work (or do not work) together. In this article, we introduce an accountability framework that helps us examine the prisoners’ rights “accountability environment” in the United States. We then compare two post-PLRA case studies of failure to protect incarcerated women from sexual assault in two different states. We find that the prisoners’ rights accountability environment is a patchwork of legal, bureaucratic, professional, and political systems. The patchwork accountability environment consists of a web of hierarchical and interdependent relationships that constrain or enable accountability. We argue that ultimately the effectiveness of prisoners’ rights accountability environments depends on whether protecting prisoners’ rights aligns with the priorities of dominant political officials. Our argument has implications for efforts to improve prison conditions and incarcerated people’s well-being. 

Law & Social Inquiry Volume 00, Issue 00, 1–30, 2024 

But Who Oversees the Overseers? The Status of Prison and Jail Oversight in the United States.

By Michele Deitch

This in-depth article provides comprehensive background information about the nature, value, and history of correctional oversight; documents the shifting landscape and increasing momentum around the oversight issue over the last decade; highlights key distinctions between prison and jail oversight; and provides a comprehensive assessment of the state of prison and jail oversight in the U.S. today. The article includes tables listing and categorizing every correctional oversight body in the United States as of 2020.

American Journal of Criminal Law 47, no. 2 (2020): 207–74.

Between Violent Crime and Progressive Prosecution in the United States (2024 Report)

By Todd Foglesong, Ron Levi, Léo Henry, Enrique Bouchot, Emma Wildeman

This report analyzes data on crime and violence across hundreds of cities and counties in the United States between 2014 and 2023 to appraise the relationship between violent crime and prosecutors deemed “progressive.” We find no evidence to support the claim that prosecutors of any type were responsible for the increase in homicide or other violent crimes before, during, or after the pandemic. Instead, we infer that fluctuations in violence and crime during this period are likely rooted in the changing social ecology of urban centers and rural areas. We recommend that further analyses of violent crime be supplemented by quantitative research on social inequality and qualitative research into the documented practices of prosecutors in cities and counties that record divergent patterns in violent crime.

Munk School of Global Affairs & Public Policy at the University of Toronto, 2024. 70p.

Investigation of the Fulton County Jail

By U.S. Department of Justice Civil Rights Division; U.S. Attorney’s Office for the Northern District of Georgia

In September 2022, Lashawn Thompson died alone in a filthy cell in the mental health unit of the Fulton County Jail. Mr. Thompson, who had a history of mental illness and was unhoused, was accused of spitting at a Georgia Tech police officer and arrested on a simple battery charge, then held on an old warrant. Three months after his arrest, Mr. Thompson was found in his cell, slumped over with his head on his toilet. A medical examiner reported that his malnourished body was infested with an “enormous presence of body lice,” and concluded that he was “neglected to death.” There was widespread reporting and outrage about the conditions that led to Mr. Thompson’s death. But there was another death on the mental health unit—several months before Mr. Thompson’s—that never made the news. An unhoused man with serious mental illness was arrested and held in Fulton County Jail’s mental health unit after breaking into a building to seek shelter and warmth. On the mental health unit he stopped taking his medications, and his health declined. He was found unresponsive following a likely seizure and was transported to an outside hospital for care, but never recovered. He died in hospice a month later. Two more people died in the Jail’s mental health unit in the weeks following Mr. Thompson’s death. Both men had serious mental health needs; one had a developmental disability. Both were killed by their cellmates, and both were found with their feet bound. One of them was wrapped up in bedding “like a mummy.” Altogether, these four Black men with serious mental health needs died in the Jail’s mental health unit in under a year. In July 2023, we opened a civil rights investigation into conditions in the Fulton County Jail under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and the Violent Crime Control and Law Enforcement Act, 34 U.S.C. § 12601. Within weeks of opening our investigation, six more Black men had died in the Jail. One person was found unresponsive in his cell after his cellmate strangled him. And days later, tensions in the Jail erupted in violence: within 24 hours, five units in the Jail saw violent assaults, at least seven people were stabbed, and one person was killed. After an extensive investigation, we find reasonable cause to believe that Fulton County and the Fulton County Sheriff’s Office violate the constitutional and statutory rights of people incarcerated in the Fulton County Jail. Fulton County Jail fails to adequately protect incarcerated people from the substantial risk of serious harm from violence, including homicides and stabbings by other incarcerated people. Serious violence has harmed people with mental health needs and other vulnerable populations. Assaults are carried out with weapons fashioned from Jail fixtures and are made possible by physical deficiencies in the Jail environment, such as unlocked doors. The Jail has long had inadequate practices for reporting and responding appropriately to sexual violence. Poor supervision, poor classification practices, and inattention to the maintenance of the Jail are major contributors to the unacceptable violence. Fulton County Jail deputies and detention officers use force against incarcerated people without adequate justification. This includes a practice of deploying Tasers against incarcerated people without reasonable cause. Understaffing in the facility contributes to the excessive use of force, as do poor policies, training, and the failure of supervisors to identify, correct, and discipline officers. Fulton County Jail living conditions do not meet basic constitutional standards. The Jail has allowed housing areas to fall into a state of serious disrepair, with standing water collecting in living areas, exposed wires, pests poorly controlled, and deficient services for providing clean clothing and sheets. These conditions are dangerous and unsanitary. Meals are served to the incarcerated population in an unsanitary manner and do not meet nutritional standards. As a result, people in the Jail have suffered harms from pest infestation and malnourishment. Medical and mental health care in the Fulton County Jail do not meet constitutional standards. The Jail impedes access to medical and mental health care through a lack of security staff. Medication administration gaps lead to medical and mental health complications and injuries. When medical emergencies occur, the Jail fails to provide appropriate medical care. And although people with mental health needs are overrepresented in the Jail population, the Jail environment exacerbates symptoms of mental illness. The Jail does not adequately protect people from a risk of suicide and does not adequately treat serious mental health needs. Restrictive housing conditions in the Jail pose a substantial risk of harm, including acute mental illness and self-injury, and restrictive housing practices are discriminatory and unlawful. The Jail places people in isolation without adequate monitoring for decompensation. Restrictive housing placement processes discriminate against people with mental health disabilities in violation of the ADA. Jail officers punish people with long terms in restrictive housing without adequate due process protections. Georgia is one of only four states where the juvenile justice system’s jurisdiction ends at 16. There are 17-year-old boys and girls at the Jail, many of whom spend over a year in custody. These children are subjected to violence and excessive force, experience sexual abuse, and are denied adequate mental health care. The Jail’s use of restrictive housing uniquely harms these children because they are psychologically different from adults, making their time in isolation much more damaging, exacerbating the onset of mental illness, increasing the risk of suicide, and causing long-lasting trauma. The Jail also fails to provide special education services to 17-year-old boys and girls who are entitled to them, in violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482. None of these problems are new. And despite widespread awareness of these issues, the unconstitutional and illegal conditions have persisted. Vulnerable populations— including children, those who are gay or transgender, people with medical and mental health needs, and others—often bear the brunt of these conditions. Deaths and other harms have continued. In April 2024, an incarcerated person died in the Jail after being stabbed 20 times. Less than a week later, a man was found dead in his cell, likely hours after his death. The report that follows explains the scope of our investigation and provides background information about the Jail. The report describes the constitutional and statutory violations that we found in the Jail, including the legal framework applied, the unacceptable conditions identified, and the deficient practices that led to the problems. We end by identifying changes that need to be implemented to fix the violations and prevent further harms.

Washington, DC: U.S. Department of Justice, 2024. 105p.

The Causal Effect of Heat on Violence: Social Implications of Unmitigated Heat Among the Incarcerated

By Anita Mukherjee and Nicholas J. Sanders

Correctional facilities commonly lack climate control, producing a setting absent endogenous responses to hot weather like avoidance, adjustment, and mitigation. We study daily weather variation across the state of Mississippi, and show that high temperatures increase intense violence among the incarcerated. Days with unsafe heat index levels shift both the intensive and extensive margins of violence, raising daily violent interactions by 20%, and the probability of any violence by 18%. Our setting cleanly identifies the effect of heat on violence, and highlights previously unobserved social costs of current facility infrastructure. Rising global temperatures could substantially increase violence absent adjustment.

NBER Working Paper No. 28987, Cambridge, MA: National Bureau of Economic Research, 2021. 42p.

Advancing Fairness and Transparency: National Guidelines for Post-Conviction Risk and Needs Assessment

By Sarah L. Desmarais, David A. D’Amora, Lahiz P. Tavárez

These guidelines were developed to promote accuracy, fairness, transparency, and effective communication and use of risk and needs assessment instruments to inform decision making following conviction. Whatever the setting, the guidelines presume that the intended use of post-conviction risk and needs assessment instruments is to support accurate, fair, and transparent decisions regarding a person’s risk of recidivism. These guidelines also presume that the purpose of post-conviction risk and needs assessment instruments is, ultimately, to promote public safety and positive outcomes for people in the criminal justice system through the least restrictive means possible.

This project was accomplished through the collaborative efforts of researchers, risk and needs assessment instrument developers, practitioners, and leaders in the field who gave generously of their time and expertise over the course of 2.5 years. It draws on an extensive review of literature and related research, observations from the field, feedback from national experts, several multidisciplinary forums and advisory group discussions, and a rigorous review process.

Advancing Fairness and Transparency: National Guidelines for Post-Conviction Risk and Needs Assessment is a resource for making decisions that help people succeed after a conviction. The guidelines were developed by the Bureau of Justice Assistance (BJA) and The Council of State Governments Justice Center. They promote fairness, transparency, and accuracy in the use of risk and needs assessment instruments.

The guidelines are intended to be used by policymakers, researchers, practitioners, and agency administrators. They can help inform decisions and case planning after a conviction and sentencing, or in alternative forms of criminal justice processing.

The guidelines include recommendations for promoting accuracy, such as: Conducting a local evaluation of the assessment instrument, Meeting minimum performance thresholds, and Using a continuous quality improvement process.

New York: Council of State Governments, Justice Center, 2022. 54p.

“Smoke Screen”: Experiences with the Incarcerated Grievance Program in New York State Prisons

By The Correctional Association of New York

This report describes the findings from a survey of incarcerated individuals that CANY conducted regarding the New York prison system’s Incarcerated Grievance Program (IGP). Survey responses indicated that people who are incarcerated perceive the IGP to be unclear, unfair, takes too long, and subjects incarcerated people to retaliation after they raise concerns. CANY will soon release a follow-up report that offers recommendations for addressing the problems they identified in this report.

The historical origins of the grievance process in New York State. The grievance program in New York and across the United States has a direct link to the legacy of the Attica uprising in 1971. During the uprising, incarcerated people engaged in negotiations on key complaints. In the aftermath of Attica, the McKay Commission recommended a series of reforms.6, 7, 8 This included “Reform No. 18: Establish an inmate grievance commission comprised of one elected inmate from each company, which is authorized to speak to the administration.”9 The grievance process came into existence in New York State in 1976.10

New York: Correctional Association of New York 2023. 111p.

Patchwork Protection: The Politics of Prisoners’ Rights Accountability in the United States

By: Heather Schoenfeld , Kimberly Rhoten and Michael C. Campbell

In recent years US prisons have failed to meet legally required minimum standards of care and protection of incarcerated people. Explanations for the failure to protect prisoners in the United States focus on the effects of the Prison Litigation Reform Act (PLRA) and lack of adequate external oversight. However, very little scholarship empirically examines how different systems of accountability for prisoners’ rights work (or do not work) together. In this article, we introduce an accountability framework that helps us examine the prisoners’ rights “accountability environment” in the United States. We then compare two post-PLRA case studies of failure to protect incarcerated women from sexual assault in two different states. We find that the prisoners’ rights accountability environment is a patchwork of legal, bureaucratic, professional, and political systems. The patchwork accountability environment consists of a web of hierarchical and interdependent relationships that constrain or enable accountability. We argue that ultimately the effectiveness of prisoners’ rights accountability environments depends on whether protecting prisoners’ rights aligns with the priorities of dominant political officials. Our argument has implications for efforts to improve prison conditions and incarcerated people’s well-being.

Law & Social Inquiry Volume 00, Issue 00, 1–30, 2024

But Who Oversees the Overseers? The Status of Prison and Jail Oversight in the United States.

By Michele Deitch

This in-depth article provides comprehensive background information about the nature, value, and history of correctional oversight; documents the shifting landscape and increasing momentum around the oversight issue over the last decade; highlights key distinctions between prison and jail oversight; and provides a comprehensive assessment of the state of prison and jail oversight in the U.S. today. The article includes tables listing and categorizing every correctional oversight body in the United States as of 2020.

American Journal of Criminal Law 47, no. 2 (2020): 207–74.

Research to explore perceptions of what contributes to the effective delivery of Education, Skills, and Work peer mentoring in men’s prisons in England

By Eve Tailor and Dan Jones

Numerous prisons, charities, and prison education providers deliver peer mentoring schemes relating to education, skills, and work (ESW). Where successful, these schemes are viewed as significant in the delivery of ESW and have been highly praised by His Majesty's Inspectorate of Prisons (HMIP) and Ofsted. However, practice is inconsistent and there is limited evidence about which delivery models are most successful. The rationale for undertaking this research was to understand effective practice in ESW peer mentoring in more detail, including the functioning of these schemes. The findings from this study will be used by the HMPPS Prisoner Education Service team to inform ESW peer mentoring policy development.

Findings are based on 48 qualitative interviews with mentees, mentors and ESW staff members across 5 male prisons in England in April and May 2023.

1.2 Key Findings

A variety of mentoring schemes operate in ESW within men’s prisons. The setting, structure, purpose, and formality of schemes explored in this study vary significantly. For example, formalised schemes had structured mentor/mentee relationships and clear staff oversight. These schemes tended to focus on skill development, such as reading. Less formalised schemes often had flexible and less structured operation, with mentors supporting multiple mentees. These less formalised schemes often involved supporting staff to deliver ESW services. There is no ‘one-size-fits-all’ approach to peer mentoring in ESW, allowing individual sites to tailor their provision to the learners at their site.

Some of the enablers of effective practice identified by participants in this study included:

  • mentors having previous experience as a mentee or mentor in other custodial and non-custodial settings,

  • approachable mentors helping to facilitate mentee recruitment and effective running of schemes,

  • privileges and low-risk status enabling greater access to the prison site and recognition of the hard work of mentors.

Some of the barriers to effective practice identified by participants in this study included:

  • regime and restricted movement preventing access to mentoring,

  • limited awareness from operational staff about the purpose of peer mentoring,

  • lack of appropriate space on wings to provide support,

  • recruitment issues arising from stigma and lack of awareness, and

  • a lack of a ‘pipeline’ for new mentors which made some schemes unsustainable.

Participants identified a range of benefits and drawbacks associated with ESW peer mentoring. Benefits included improved staff-prisoner relationships and the development of soft skills such as communication and learning new skills.

Drawbacks identified by participants included mentors having to deliver mentoring during association and losing their ‘down time’, becoming demoralised by the lack of engagement, and previous poor experiences of mentoring being “off-putting” for future participation in schemes.

Ministry of Justice Analytical Series, London: UK Ministry of Justice, 2024. 41p.

Australia’s Emerging Incarceration Crisis: Proposed Reforms Of The Australian Sentencing System

By Mirko Bagaric

The Institute of Public Affairs (IPA) has taken a lead role in providing empirically-grounded reform proposals for the criminal justice system, with a strong focus on reducing incarceration numbers. The report released in 2017, titled Australia’s Criminal Justice Costs: An International Comparison noted that ‘despite spending more than most countries [on prisons] and more and more each year, our results are poor and people don’t feel safe’.

In recent years, this problem has become more acute. Prison rates have continued to increase, with an enormous amount of public money being spent on prisons and no improvement in community safety.

Over the past two decades the United States – known in criminology circles as the ‘mass incarcerator’ – has made significant progress in reducing the incarceration of low-risk, non-violent offenders. This has reduced the overall incarceration rate which delivers a dividend to taxpayers through less spending on prisons, some of which can be re-invested to strengthen the policing of violent and sexual offences to improve community safety. Additionally, reducing unnecessary rates of incarceration allows more Americans to be productive members of society, through working, paying taxes, and supporting their families and local communities.

The adage applied by reformers predominately from deep-red conservative states such as Georgia and Texas was ‘jail is for people we are afraid of, not those we are mad at.’ This recognises the unique nature of prison and that it should be reserved for people who are a threat to community safety. For those who are not a threat to safety, but who have nonetheless broken the law and ought to be punished, alternatives to prison should be pursued.

Australia, however, is lagging behind the world-leading reforms undertaken in the United States, and across many parts of Europe and Scandinavia over the past two decades.

The criminal justice system has a number of stages, including investigation, arrest, trial and conviction or acquittal and then the imposition of sanctions against offenders. This last stage, sentencing, is arguably the most important aspect of the system: the sanctions available against offenders target the most cherished and coveted individual interests, including the right to liberty. Moreover, mistakes at the sentencing stage of the process threaten to undermine the integrity of the entire criminal justice system. If, for example, murderers habitually received only small fines or shoplifters were sentenced to life imprisonment, this would seriously undermine the efficacy of the entire criminal justice process. This report focuses on reforms to the sentencing system. This system is fundamentally broken in Australia. There is no tenable rationale that can justify the jarring reality that Australia’s imprisonment rate has increased three-fold over the past three decades, making Australia one of the most punitive developed nations on earth.

The most pressing and important issue relating to sentencing law and practice is its continued disregard of expert knowledge and empirical evidence. Sentencing is the institution where there is the greatest gap between practice and knowledge. Most other social institutions and areas of learning, such as medicine, engineering and education, readily embrace and change their practices in response to new learning that demonstrates more efficient and effective ways of achieving desirable outcomes. By contrast, the key sentencing policies and practices which are responsible for the incarceration crisis have been implemented and maintained despite extensive research which demonstrates that the system is flawed.

Empirical evidence highlights that key sentencing objectives that have been invoked to justify heavier penalties, such as marginal general deterrence and specific deterrence, are unattainable, yet they remain central goals of Australian sentencing system.

This report examines the gulf between sentencing knowledge and practice, and makes recommendations regarding the measures that need to be undertaken to bridge that gap, so that law-makers can bring sentencing practice in line with current knowledge and make it fairer and more efficient. If the proposals in this report are adopted, the incarceration rate could be reduced by up to 30%, far less tax-payer dollars will be spent on prisons and the community will be safer.

The election of the Albanese Federal Government and increased focus on problems with the sentencing system provides a window in which the community and law-makers are receptive to evidence-based reforms to sentencing. To take advantage of this opportunity, it is necessary understand the flaws of the current system and the barriers to implementing progressive reforms and provide coherent evidence-based reform proposals.

The reform proposals in this report will make changes to the sentencing system which will secure the following four objectives:

  1. Reducing crime;

  2. Punishing criminals appropriately;

  3. Minimising the cost of the system; and

  4. Ensuring that the system does not violate important moral norms.

In order to improve the sentencing system, it is necessary to reassess the current aims of sentencing; give content to the principle of proportionality; harmonise aggravating and mitigating considerations, establish standard penalties for key offence types and introduce new criminal sanctions. This matters are now discussed below, after examining the failings of the current system.

Melbourne: Institute of Public Affairs, 2022. 24p.

Make Them Pay: Proposed Sentencing Reforms For Fraud Offences

By: Mirko Bagaric and Morgan Begg

  1. The objectives of the criminal justice system should be to ensure that incarceration is preserved for violent offenders and those who have perpetrated crimes of a sexual nature. The incarceration of low-risk, and non-violent offenders adds significant economic and social costs without delivering a benefit to the community in terms of improved safety outcomes.

  2. The NSW government should recognise that the use of the prison system should be reserved for the most fearful and threatening offenders, those who must be incapacitated to reduce harms to society. By definition, white-collar criminals are non-violent who pose no physical threat to society. Incarceration should be a solution for only the most threatening to society. In the case of white-collar criminals, the aims of punishment can be equally achieved through other means, such as garnishing wages, severe financial penalties, and technological incarceration, which may be more effective at incapacitating white-collar criminals from recidivism.

  3. In sentencing fraud offenders, courts should take into account three key considerations: (i) community protection; (ii) the principle of proportionality (the punishment should fit the crime); and (iii) the interests of victims, which is best promoted through reparation.

Melbourne: Institute of Public Affairs, 2022. 32p.

Let Them Work: How Criminal Justice Reform Can Help Address Australia’s Worker Shortage

Written by: Mirko Bagaric and Morgan Begg

Australia is experiencing both an incarceration crisis and an unprecedented worker shortage. Sensible criminal justice reform can address the excessive burden on Australia’s prison system while also filling persistent job vacancies in the economy.

According to the Australian Bureau of Statistics, there are currently close to 450,000 jobs vacancies across the economy, which is double the number of job vacancies prior to covid-19. And close to one in four businesses have stated they cannot find the workers they need.

In terms of incarceration, Australia’s incarceration rate has increased by 240 per cent since the mid-1980s. This is three times our population growth rate. This is much higher than other commonwealth countries with similar legal systems, such as Britain and Canada, and more than double European countries such as Germany, The Netherlands, and Sweden.

The total cost to the Australian taxpayer of imprisoning roughly 42,000 prisoners is now nearly $4.5 billion annually. Over-incarceration imposes an additional cost on Australians by depriving our labour force of healthy, working age men and women who could otherwise be productive members of society.

Approximately 42 per cent of prisoners have not committed sexual or violent offences. Not imprisoning these low-risk non-violent offenders would support, and most likely enhance, their rehabilitation. It has been firmly established that many employers are prepared to employ people who have prior convictions for non-violent and non-sexual offences, and when they do employ such people they are invariably pleased with their decision.

If Australian governments reformed sentencing so that non-violent low-risk offenders were not detained at taxpayer expense, but rather were put to work in industries which urgently need workers, this could deliver substantial benefits to taxpayers without compromising community safety.

If this reform had been implemented in 2021-22 as many as 14,000 young and healthy adults could have been added to the workforce, which would have improved government budgets by $1.95 billion in reduced incarceration costs and increased income tax revenue. If this reform had been implemented between 2016-17 and 2021-22, total budgetary savings would have been in the order of $10.4 billion in reduced incarceration costs for state governments and additional income tax revenue for the federal government.

Diverting low-risk non-violent offenders from prison and giving them the opportunity to work would enhance their lives and prospects, promote community safety, improve the economy through increased productivity, and reduce net government spending and debt.

Melbourne: Institute of Public Affairs, 2023. 20p.

The Unintended Consequences of “Ban the Box”: Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden

By Jennifer L. Doleac and Benjamin Hansen

Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from asking about job applicants’ criminal records until late in the hiring process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing criminal history information could increase statistical discrimination against demographic groups that include more ex-offenders. We use variation in the timing of BTB policies to test BTB’s effects on employment. We find that BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young, low-skilled black men.

Journal of Labor Economics, Volume 38, Number 2, April 2020