SCLG2634

WILLIAM MITCHELL

QUESTION 1 PUNISHMENT In sanctions such as indeterminate punishment and disproportionate punishment, the panopticon no longer appears as an organizing referent (Pratt et al, 2005: xiii). Critically discuss this statement with reference to punishment practices in Australian jurisdiction/s. I believe that this statement is, for the most part, naively false. Pratt is basing this assumption on the notion that the Panopticon is seen as a rehabilitative device (Foucault, 1977:203-4) and that the nature of indeterminate sentencing implicitly does not allow for any sort of rehabilitative reintegration into society, therefore defeating the purpose of talking of punishment as panoptic. In other words, offenders have no motivation for rehabilitation1. Pratt naively holds this view without taking into account the avenues provided for motivating the kind of self-regulatory rehabilitation desired by a panoptic punishment model. All Australian jurisdictions with legislation allowing for indeterminate punishment, as we will see, provide windows for review in which offenders can demonstrate/prove their rehabilitation. On a similar note, in certain Australian jurisdictions, many people charged with an indeterminate life sentence serve sentences of around 25 years or less. This being said, I believe the only dimension from which Pratts statement can be viewed as true, lies in the nature of the crimes that indeterminate sentencing deal with, i.e. habitual sexual offences and violently disturbed assults/murders as behavioural problems cannot be seen to be so easily rehabilitated from a psychological perspective. In order to assess the validity of this statement, we must first understand what is meant by its key terms. Firstly; the idea of the panopticon, as analysed by Foucault in Discipline and Punish, refers to the rehabilitation of self-regulation or discipline caused by surveillance technologies of the modern state (Foucault, 1977:209). Secondly; Indeterminate punishment refers to a punishment which has no apparent end date2. This could take the form of a life sentence (often without parole depending on the jurisdictions) or some kind of conditional release agreed upon by the judiciary. Thirdly; Disproportionate punishment must then simply refer to the notion that punishment should fit the crime in the sense that the punishment should be proportionate to the severity of the crime amongst other deciding factors. In order to show that we can continue to refer to indeterminate and disproportionate punishments as panoptic, we must show that these methods of punishment are able to guarantee the self-regulatory behaviour necessary to claim rehabilitation of prisoners. All states in Australia (excepting NSW) provide for some measure of indeterminate sentencing. The table below shows, by state, the name of the legislation giving rise to this practice. Name of Legislation Victoria (VIC) Sentencing Act (1991)

1 As their rehabilitation wouldnt lead to freedom under (a naive view of) indeterminate sentences 2 Each states legislation has an example of this but for brevity of reference see Queenslands Dangerous Prisoners (Sexual Offenders) Act (2003) S13.5a

SCLG2634

WILLIAM MITCHELL

Name of Legislation Western Australia (WA) The Crimes (Serious and Repeat Offenders) Act (1992) Criminal Law (Sentencing) Act (1988) The Criminal Code Act (1983) Sentencing Act (2005) Dangerous Prisoners (Sexual Offenders) Act (2003) Sentencing Act (1997)

South Australia (SA)

Northern Territory (NT) Australian Capital Territory (ACT) Queensland (QLD)

Tasmania (TAS)

There are certain features I am interested in with regards to these pieces of legislation. These features are the ability to be granted parole and bail as well as the kind of regular reviews conducted so as to assess the prisoners self-regulatory rehabilitation. For instance, in the QLD legislation, S13.5b3 states that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). In order to be granted a supervision order under this legislation, the court must be ensure[d of the] adequate protection of the community pending the prisoners release (S13.6a). Similar provisions in the other states provide that the court must be assured in some way that the prisoner in question poses no further harm to the public. But briefly consider the nature of the crimes that are often awarded with these indeterminate sentences and you will see that they are often commited by disturbed individuals4. The majority of these acts require the qualification of the individual in some way as dangerous by mental health professionals (In the QLD legislation see S11). Otherwise in jurisdictions such as TAS and VIC it is down to the discretion of the courts regarding the safety and well being of the community relating to a Dangerous Criminal (in TAS) or a serious offence (in VIC) which the court must take into account (In TAS see S20.2 or in VIC see S6D.a). An interesting difference between jurisdictions I noted here is that, in QLD, there is mandatory non-parole for dangerous offenders with the courts deciding the time at which the prisoner may come up for review (S51) where as in VIC there is mandatory non-parole period based on the seriousness of the crime unless the fixing of
3 Henceforth, whenever I refer to a section of legislation, I shall refer to it as Sx and contextualize which states legislation to which I am referring. 4 Depending on the jurisdiction, this includes crimes of sexual violence and murder (or violent acts including threats in VIC) where as in certain other jurisdictions e.g. VIC, see Schedule 1) arson and drug offences are included in life sentencing. Although, in most jurisdictions, indeterminate punishment is rewarded based on the discretion of the sentencing judge determined often by the danger posed to the community.

SCLG2634

WILLIAM MITCHELL

such a period inappropriate (S11.1). Where as in a jurisdiction like TAS, an offender must apply for a discharge of dangerous criminal status in order to become eligable for parole (S20). It is because of these conditional clauses of release that I believe we can continue to talk about indeterminate and disproportionate sentencing as panoptic, in so far as, those who are able to undergo some sort of self-regulatory rehabilitation5 do have their opportunities to appeal and/or come up for review based on the severity of their crime. In fact I would go as far to suggest that affording more gravity to punishments gives a greater incentive for prisoners to engage in self-regulatory rehabilitation6. QUESTION 2 SENTENCING Katja Franko Aas writes that the argument about whether sentencing is an art or science is not simply an abstract academic discussion (2005: 26; in your reader). Critically evaluate whether sentencing is an art or an activity that can be programmed. (Ground your answer in evidence, i.e. through a discussion of sentencing principles, case studies in the media, sentencing tools, discretion, mandatory sentencing etc). The debate as to whether sentencing is an art or a science extends beyond the abstract academic discussion for the simple reason that how we determine the extent and duration of punishment effects those who are being punished. I support a view of sentencing practices which not only takes into account the nature and severity of the crime as well as the consequences of the crime, but also takes into account the subjective identity and circumstances of offenders in question. For this reason I would suggest that sentencing cannot simply be programmed as this would contradict the subjective purpose of punishment which is, at least to a certain extent, to rehabilitate the offender. As much as punishment is to make reparations to the victims and simply to punish the offender, whats done is done, therefore any effectiveness of punishment we talk about must be in terms of rehabilitation7. The idea that punishment is, to some extent, imposed for the rehabilitation of the offender is reflected in the various criminal codes of the state and territories in Australia e.g. In the NSW Crimes (Sentencing Procedures) Act (1999) - S3A.d or in the QLD Penalties and Sentences Act (1992) - S9.1b. This is an idea reflected by many judges, for example by a full court of the Supreme Court of Victoria in R v Willscroft [1975] VR 292 (Franko Aas, 2005:24-5). In talking about whether or not crime can be viewed as an art or a science beyond an abstract level, we are effectively trying to determine the relative efficiency of sentencing practices such as mandatory sentencing compared to more subjective, individually tailored sentencing practices in reducing a criminals likelihood of re-engaging in crime. The only effective way
5 i.e. not those with severely debilitating mental health issues incapable of rehabilitation 6 Although to analyse this we would need to look at recidivism rates for those who were previously charged with life sentences and the point of this essay is not to analyse the effectiveness of punishment as we are merely trying to analyse whether or not indeterminate sentencing can be viewed as panoptic in the sense that it still has the potential to motivate rehabilitation. 7 I deliberately exclude talk of fines as this is a seemingly arbitrary measure of punishment designed to make reparations for the past (which is fixed) as opposed to improving the future (which is not fixed)

SCLG2634

WILLIAM MITCHELL

of measuring this is through recidivism rates and whether or not those exposed to mandatory sentences were less or more likely to reoffend than those undergoing standard sentences. As a deterrent, Roche notes that mandatory sentencing relies upon misconceived assumptions about the deterrent effect of punishment (1999:4). That is, it naively assumes that people are rational actors who weigh the costs and benefits of committing a crime before deciding whether to commit that crime (Roche, 1999:4). He continues to note that often reoffending individuals see no attractive options in the legitimate economy...[and] are doubtful that they will live another ten years in any event, [therefore] the threat of an extended prison stay is likely to be far less threatening than it would be to a well-employed person with a family (Roche, 1999:4). Clearly this highlights the institutionalized discrimination caused by mandatory sentencing targeting a specific class of individual. Payne notes that certain factors increase an individuals likelihood of being rearrested and reimprisoned, two of which I wish to focus on are age and race due to their contribution to the ineffectiveness of mandatory sentencing. Payne states that those aged less than 18 years at the time of their first arrest were more likely to be rearrested than older offenders with rearrest rates declining with age (2007:87). He also notes that indigenous status contributes to a higher rate of recidivism (2007:91). The reason I reference this is to show that certain types of mandatory sentencing practices and policies, such as the 1997 Norther Territory Three Strikes policy or minimum sentencing, are, by proxy, targeting a particular class of offenders. Taking into account what Roche notes above on the differences in motivations for (re)offending, there becomes an obvious necessity to differentiate our rationales for, as well as types and durations of punishment in order to achieve the rehabilitation demanded in various state sentencing procedure legislation. For this reason I wish to follow Paynes example, in dividing offenders into 3 categories; One time offenders; Non-chronic recidivist offenders and; Chronic recidivist offenders (2007:5) as I believe different punishment practices should be applied to each respective category. In a less obvious way, indeterminate punishment of certain states provide for a better model by which to rehabilitate offenders. I mean this in the sense that in all jurisdictions which provide for some extent of indeterminate punishment, the rehabilitation of offenders is a condition built into the sentence duration, ensuring (to some extent) the rehabilitation of the offender at the discretion of the courts8. Though without completely justifying indeterminate sentencing, I simply wish to provide a contrast to the naive deterrent model of mandatory sentencing in rehabilitating offenders as this obviously fails to address the individual motivations/causes of engagement in criminal behavior. Clearly, due to the differences in motivation for crime and the institutionalized discrimination of mandatory sentencing, by proxy, targeting a certain class of offenders, we see a need to individuate punishments in order to accord with clauses in state sentencing acts which hold that punishment is, at least partly, for the rehabilitation of the offender. QUESTION 4 PRISONS One of the major features of the Australian criminal justice system has been the extraordinary growth in prison numbers (Goulding et al, 208: 232).
8 See above question for explanation of this legislation

SCLG2634

WILLIAM MITCHELL

Critically discuss the role of prisons in Australia in light of this statement. Whenever we talk of an increase in rates of imprisonment, we could be talking about one, or a combination of, three things; We could be talking about some change in society where individuals are increasingly engaging in crime, or; We could be talking about a change in policing practices/legality which views a previously legal pattern of behaviour as illegal, or; We could be talking about the (decreased) propensity of sentencers to delegate nonimprisonment sentences (such as suspended sentences, community service or fines). In light of this division, I believe the role of prisons is primarily to incapcitate offenders, as opposed to rehabilitate them, for two reasons; 1) Recidivism rates show that exposure to the criminal justice system does not beget the rehabilitation of offenders used to justify imprisonment in legislative frameworks, and; 2) With increasing options for non-custodial punishment, if sentencers wished to lower the number of individuals serving custodial sentences in prisons, they would have. Recidivism rates show us that 60-3% of prison inmates have been imprisoned at least once before in their life (Payne, 2007:55 citing ABS, 2005) with 35% of males and 38% of females being re-imprisoned within 2 years of release (Payne, 2007:55 citing Thompson, 1995) and 54% of all prisoners being re-imprisoned within 7 years of release (Payne, 2007:57 citing Ross & Guarnieri, 1996). This shows a substantial inability of custodial punishment in a prison setting to rehabilitate offenders. Weatherburn et al. suggests that an increased imprisonment rate may reflect a greater proclivity on the part of NSW courts (regardless of offence and offender characteristics) to impose a custodial sanction (2010:5). Simon provides an interesting explanation as to why the judiciary and executive make it easier to convict and imprison individuals by noting a correlation between increases in jail population, increases in housing prices and increases in obesity (2010:258-9). He argues that rapidly inflating housing prices may exacerbate the sensitivity to crime fear produced by homeownership as subjects become more attached to their house than to their job as a source of security, a factor that makes mass incarceration easier politically (Simon, 2010:259). This is particularly relevant for Australia considering the current state of the housing market (Wilkins, 2012). Similarly, if we consider the introduction of legislative frameworks for sentences of indeterminate length in the majority of states and territories9 in Australia and the introduction of standard minimum sentencing in NSW (Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act (2002)), custodial punishments such as fulltime imprisonment take less of a rehabilitative role and more of an incapacitating role particularly in the case of indeterminate sentencing. It is evident from the trend in recent legislation permitting harsher, more lengthy sentences against offenders as well as the evident failure of the penal system (as seen through recidivism rates) to ensure rehabilitation through custodial sentencing i.e. imprisonment, that the role of prisons in Australia do not serve the rehabilitative function used as justification for punishment in current sentencing legislation, rather they serve to temporarily incapacitate

9 For explanation and examples of the legislation, see table above

SCLG2634

WILLIAM MITCHELL

offenders due to the high value placed around personal property as outlined by Simon in the above.

SCLG2634

WILLIAM MITCHELL

BIBLIOGRAPHY Payne, J. (2007) Recidivism in Australia:Findings and Future Research, Canberra:Australian Institute of Criminology; Accessed at: http://www.aic.gov.au/documents/0/6/B/ %7B06BA8B79-E747-413E-A263-72FA37E42F6F%7Drpp80.pdf Roche, D. (1999) Mandatory Sentencing Canberra:Australian Institute of Criminology; Accessed at: http://www.aic.gov.au/documents/C/1/E/%7BC1EFCBE4-7FCE-4B22-8BB9AFD965E2E536%7Dti138.pdf Simon, J. (2010) Do these prisons make me look fat? Moderating the USAs Consumption of punishment Theoretical Criminology:14(3) (From Reader) Grech, K.; Holmes, J.; Weatherburn, D. (2010) Why Does NSW have a higher imprisonment rate than Victoria Contemporary Issues in Crime and Justice:145; NSW Bureau of Crime Statistics and Research:Sydney; Accessed at: http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB145.pdf/ $file/CJB145.pdf Wilkins, G. (2012) House Prices Continue to Struggle Fairfax Media:Sydney; Accessed at: http://www.smh.com.au/business/the-economy/house-prices-continue-to-struggle-2012110628v70.html LEGISLATION NSW Crimes (Sentencing Procedures) Act (1999) Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act (2002) Victoria Sentencing Act (1991) Western Australia The Crimes (Serious and Repeat Offenders) Act (1992) South Australia Criminal Law (Sentencing) Act (1988) Northern Territory The Criminal Code Act (1983) Queensland Penalties and Sentences Act (1992)

SCLG2634

WILLIAM MITCHELL

Dangerous Prisoners (Sexual Offenders) Act (2003) Tasmania Sentencing Act (1997) ACT Sentencing Act (2005)