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Imprisonment is the most severe punishment that can be given to an offender in Western Australia and is utilised for reasons including as a form of punishment, to ensure that the offender remains in custody so they are unable to commit further crime and also to send a message to people that if you commit this offence you will also go to jail. Prison is also considered by some to be a good place for rehabilitation with many programs aiming to break the cycle of criminality in offenders by treating any underlying drug/alcohol issues as well as providing skills training in the hope that the offender will be released and enter the workforce.

As at 31 March 2015 there were 5,484 people in Western Australian prisons for various offences ranging from traffic violations up to murder (this figure does not include juveniles). Of those in prison, 1,127 people had been imprisoned on at least one previous occasion within the 5 years prior to their current imprisonment.

These figures are significant and a significant amount of the State’s resources are required to ensure that there is sufficient space to accommodate the prisoners, to feed them and to guard them. Resources further need to be invested in rehabilitative programs in an attempt to reduce the amount of reoffending that occurs once an offender is released from prison. It is for this reason that consideration needs to be given to whether imprisoning a person for the purpose of deterring other people from committing crime is effective because the use of the prison system is expensive, especially where the use of other avenues of rehabilitation and punishment are more effective when compared to imprisonment, both on a cost and rehabilitative bases.

Deterrence theory

When the courts sentence an offender they will consider whether there is a need to deter other people, or the offender directly, from committing the same, or similar offences. If the court is of the opinion that there is a need to deter other people from committing similar offences, a more severe sentence is often imposed to “set an example” for other people.

This logic is underpinned by the deterrence theory which prevents people from committing crimes out of the fear of being identified and punished. In order for a deterrence to be effective everybody needs to know the law, punishments need to be rationally and systematically applied and there must be a certainty of punishments when being caught.

One of the best and most easily understood uses of the deterrence theory is in drink driving and other road laws such as the “double demerit” long weekends and speeding. By the police using random locations for random breath tests and speed cameras, it says to motorists if you drink and drive, or speed, you will be caught and lose your licence and fined. Similarly, on “double demerit” weekends people often make a rational decision not to speed or drink drive because of the fear of being caught and punished. These are effective examples of the deterrence theory because the people who it applies to are thinking rationally when making the decision not to speed, drink drive or commit any other traffic offence.

Why deterrence doesn’t work for prison sentences

Deterrence does work for some potential offenders, however the vast majority of offenders are not affected by the deterrence theory because their crimes are committed irrationally. The irrationality of their crime is relevant because underpinning the deterrence theory is the idea that all criminal behaviour is the result of careful consideration of the benefits that can be gained through the committing of crime weighed up against the punishment that would be received if caught. Put another way the deterrence theory can only be successful in every instance if every person who commits a crime only commits it after considering that the benefit of the crime outweighs the punishment and the likelihood of being caught.

This theory, which is essential to the deterrence principle, is flawed because it assumes that all offenders come to a rational conclusion before committing an offence. To outline this point, a person might be regarded as thinking irrationally when they suffer from a mental illness, have an addiction, are under the influence of drugs or alcohol at the time of committing the offence, have poor behavioural management (such as anger management issues) or do not generally exhibit a level of rationality in their behaviour. When people who do not think rationally before committing an offence, commit an offence there is usually little or no consideration given to the potential consequences, rendering any deterrence as non-existence.

A study which interviewed 4,645 people detained by police in Western Australia found that 60% of participants who had used drugs and had committed a crime within the last 12 months attributed their drug use as a reason for committing the offence, with 80% of those people saying that they committed crime in order to obtain money to purchase drugs. These figures do not take into account the use of alcohol in offending. When a person suffers from an addiction the concept that a rational choice is made to commit the crime is diminished because less thought is given to the consequences of being caught.

Similarly where a person commits crime ‘in the heat of the moment’ they rarely fully consider the potential consequences for their actions. For example, in instances of road rage or other angry outbursts, people lose control of their common sense and act without thought. These people don’t make a rational decision to punch another person after carefully considering the likelihood that they will go to jail if caught.

There is also the issue that the general public do not usually know what punishments are actually being given for crimes so there is no certainty as to punishment for potential offenders to consider before offending. Research also suggests that by increasing punishments there is no increase in the effectiveness in a deterrence sense.

If prison is not successful in deterring people from offending there can be very serious consequences on the person that is being sentenced and made an example of.

Why prison shouldn’t be used as a deterrent

Whilst prison is an effective form of punishment in some cases, in others it is counterproductive and does more harm than good. Some consider that the ultimate goal of any punishment, whether it be a fine, community based order or imprisonment is to rehabilitate the offender and prevent them from reoffending. The crime needs to fit the punishment and if there is a disproportionate level of punishment there is a higher likelihood that the offender will reoffended. People that are imprisoned are at risk of coming out angry at the criminal justice system, could become institutionalised and find it significantly harder to find employment, all of which put the person at risk of reoffending.

Prison should be reserved for absolute last resort cases and should be avoided where possible. This is based upon several sound criminological theories including labelling theory, learning theory and differential association theory to name a few.  These theories will be expanded on more fully in a later article.

With all the issues that offenders face in prison and the research suggesting that prison can do more harm than good when it is overused it is essential that it be reserved for crimes that actually warrant a prison sentence because the offence is serious enough that it warrants a sentence or there is a risk to public safety. Prison should be a last resort and avoided where possible because it is counterproductive to the rehabilitation of the offender which is of paramount importance. Considering that the research suggests that imprisonment does not effectively deter people is it justified to send people to prison if they come out worse than how they went in?

Other options to imprisonment

Other options exist which allow for the offender to be punished whilst also giving them a genuine chance of rehabilitation. Avoiding prison can also save the state’s resources and prevent offenders from associating with other, worse offenders and learning new skills and techniques.

Other options available to the courts include fines, community based orders, good behaviour bonds, home detention, suspended sentences and supervision orders. There are also a range of programs outside of prison that address the criminogenic needs of the offenders in an attempt to address them and help the offender not re-offend.

Research conducted by the Western Australian Department of Corrective Services has shown that 45.2% of people who were imprisoned had reoffended and were back in prison within 2 years of being released. When compared to 12.8% of people who reoffended after being dealt with in the community it shows that community corrections is by far more effective at rehabilitating people than the prison system.

Should you require any advice on a criminal law matter or wish to discuss possible sentencing options please feel free to call Lynn & Brown Lawyers on 9375 3411 or https://www.lynnandbrown.com.au/contact/

 

About the author:

 

Aaron Plenderleith is a lawyer at Lynn & Brown Lawyers.  Aaron was recently admitted to practice law in Western Australia and specialises in legal writing, legal research, criminal law and employment law.

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