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.