The rape and murder of Jill Meagher in the Melbourne suburb of Brunswick in September 2012 was as horrible a crime as could be imagined. Meagher, twenty-nine, was walking on a street near her home when she caught the attention of an opportunist sexual predator, Adrian Bayley, a man with a long history of violent sexual offences. She was dragged into an alley, brutally raped and then strangled to death. Bayley, forty-one, has since been sentenced to life imprisonment for murder, plus fifteen years for rape.
What makes this tragic case worse is that Bayley was on parole when he attacked Jill Meagher. He had served eight years of a sentence for raping five women. This had been his second prison term for rape. At the time of the murder, Bayley was also on bail, appealing against a three-month sentence for recklessly causing serious injury.
How could this happen?
The agencies of the Victorian criminal justice system, particularly the Adult Parole Board, have come in for fierce criticism in the wake of the Meagher case. The questions mount up: why were Bayley’s previous sexual offences not punished more severely by the courts? Why did Bayley’s obvious risk of reoffending not lead to closer and stricter parole? Why was his parole not revoked after he was convicted of assault?
These are valid and important questions. The justice system failed, with disastrous consequences. The lessons of that failure need to be learned, and changes made. The horror and anger the Meagher case evoked has, however, morphed into an attack on parole in general. The Murdoch press in particular has been portraying parole as a ‘right’ granted to offenders at the expense of past and future victims. One Herald Sun columnist castigated the Adult Parole Board as ‘people who sent criminals back on the streets’, comparing them to negligent dog owners:
It’s illegal to let a dangerous dog loose on the community in Victoria. If that dog attacks because of your
negligence, you cop a fine and face charges.That’s if the dangerous dog is of the canine kind. But what if
the dog happens to be of the human kind, the sort that hunts and kills women? … the Adult Parole Board
[has] let at least a dozen killers loose on the community in recent years.
Parole, by this view, is one more feature of a criminal justice system which has gone soft. The Adult Parole Board has been accused of forgetting its duty to protect the community, and instead naively hoping to rehabilitate offenders.
The recent attack on parole is part of a near-universal misrepresentation of crime and punishment in Australia. Everyone knows that if you are charged with a crime these days you are much more likely to walk free on bail than used to be the case. And, if you are convicted of a crime you are less likely to go to prison. And, if you do go to prison then the sentences are shorter, and parole is easier to get. The problem with these common-sense understandings is that they are all untrue.
Far from going ‘soft’, Australia’s criminal justice system has, for more than thirty years, become increasingly punitive. Our imprisonment rate has increased almost every year without pause since the early 1980s. Because Australia’s total population has also grown, this translates to prisoner numbers which are unprecedented in our national experience. Since 2002, Australia’s prison population has increased by 31 per cent. We are sending more and more people to prison, and for longer.
The most recent prison census reported that there were 29,383 adults in Australia’s prisons. Of these, 6871 prisoners were, in the jargon, ‘unsentenced’—people charged with an offence and awaiting trial, but who have been denied bail because of the risk they may present to the community. Although women are increasing both in number and as a proportion of the prison population, the overwhelming majority of prisoners—93 per cent—are men, and most of these are aged between eighteen and thirty-four.
Australia has a national imprisonment rate of 168 prisoners per 100,000 adults. By first world standards this is high: the rate in Germany is 80, France 101, and England148 per 100,000. The major exception is the United States, which is in a class of its own with some 2.3 million prisoners, a rate of 716 per 100,000.
The Australian national average conceals huge differences between different states and territories. Victoria has traditionally had a low rate of imprisonment. As recently as 2002, the rate was 94 per 100,000 adults, and it is still the lowest of any large state at 112. By contrast, Western Australia, has nearly 5000 prisoners, a rate of 267 per 100,000 of the adult population. Nearly 40 per cent of West Australia’s prisoners are Indigenous. This vast overrepresentation means that using the traditional ratio of prisoners per 100,000 of the adult population is less clear than to simply say, 4.1 per cent of Western Australia’s Indigenous adults are in prison.
If the government were to announce a national ten year plan to invest large amounts of public money to increase by one-third the number of doctors—or university students, or school teachers, or frontline soldiers—it would be big news. There would be extensive commentary and debate about whether the plan was justified, cost-effective and well-designed. Opposition parties would, as a matter of course, question whether the benefits of the program justified the great expense. Yet a comparable increase in our prison population has occurred unchallenged and almost unnoticed. In all the media noise and fury about getting tough on crime, most people remain unaware that we are sending more people to prison than at any time in our history.
A small number of the people we send to prison will never leave. A tiny number have been convicted of crimes so heinous that they will never be released. Others die in prison, whether because of violence,
sickness, or by their own hands. But everyone else who is sent to prison will, sooner or later, come out again. And there’s the rub.
One of the reasons used to justify punitive justice policies is that imprisonment acts as a deterrent.
The young fool sent to prison, the thinking goes, will be ‘scared straight’. This may happen, but it doesn’t happen often. A 2010 analysis of the Australian prison population found that 69 per cent of prisoners had been in prison before. Whatever else prison had done to them, it had not persuaded them to stop offending. A major Victorian study tracked 3352 prisoners after release. It found that within two years, 1162 had reoffended, and returned to prison: a failure rate of 35 per cent. It also found that the younger a prisoner was, the more likely he or she was to return to prison.
The challenges facing the newly released prisoner are daunting. He (it is usually ‘he’) is expected to re-join, as an independent adult, a community which for the most part wants nothing to do with him. An exprisoner will find it extremely difficult to get a job, or a place to live. He probably has little money of his own, and may have no or limited access to welfare, or to public health services. While the wider community fears those released from prison, in truth they are among the most vulnerable people in Australia.
The death-rate among recently-released prisoners is extremely high, especially among indigenous men. Every year, about 400 ex-prisoners die within 12 months of release. The most dangerous period is the first four weeks, when drug-related deaths are a particular risk. Other health problems plague former prisoners. They are much more likely than the general population to suffer from all forms of hepatitis, to have sexually transmitted diseases, to suffer from depression. While it is difficult to quantify, a significant number of prisoners, especially men who are young and physically weak, will be raped or otherwise sexually abused while in prison. Such abuse is likely to be a factor in the very high rates of self-harm and suicide among released prisoners.
Many people who go to prison have a drug and alcohol problem, or a mental illnesses, or a combination of both. Treatment services for drug addiction are inadequate in most Australian prisons, and mental health even more so. The Victorian Ombudsman found that the prison system in that state has the capacity to provide psychiatric services for 132 male prisoners a month. At any one time, there are more than 1500 male prisoners with a diagnosed mental illness in Victorian prisons.
A punitive-minded talkback caller might ask: Why should we care? The reason is simple. If people who leave prison cannot find a job or a place to live, if they are sick or mentally ill, if they have untreated addictions, they are very likely to reoffend. One corrective services report puts it frankly, ‘being imprisoned is itself a factor that leads to imprisonment, in large part because of the problems that released prisoners face in re-establishing themselves in the community when they are released’. This is why parole is so important.
Different states and territories all have slightly different parole regimes, and the federal system is different again. However, the core reasons for parole are the same. Parole is not a shortening of a sentence, it is part of the sentence. It is a period towards the end of a sentence where a prisoner can, provided certain conditions are met, be released back into the community.
This release is conditional. Parole will usually be revoked if the person commits another offence. Other conditions might relate to the person’s particular circumstances and offending history: release might depend on abstaining from alcohol, being tested for drug use, attending treatment programs or not having contact with children. He can be supervised, closely if necessary. Necessary changes to lifestyle can be enforced by the ‘or else’ of returning to prison.
The benefits of parole were explained back in 1955 by the minister who introduced the scheme to Victoria, Sir Arthur Rylah (no one’s idea of a bleeding-heart liberal):
A man cannot be trained to live at peace with the community if he is kept in close captivity under a harshly regimented régime. The logical and essential thing to do, after he is trained and is ready for release, is to provide a period of supervision in the community. I have no hesitation in declaring that a prisoner’s prospects of rehabilitation will be considerably enhanced by the institution of a parole service to provide guidance and supervision to released prisoners. Experience shows that the problems of rehabilitation are greatest immediately following release and recidivism is greatest at this stage. Each prisoner properly rehabilitated and reabsorbed into community life is a social and economic gain to the community, and by such means in the long run society is protecting itself.
It doesn’t always work, of course. Recidivism rates remain high—too high.
But the alternative is to hold every prisoner for the whole of his sentence in the regimented environment of a prison. Then, one day, he is given his old clothes back and pushed out the front gate, with a bus ticket and a food voucher. This scenario, a cliché from American films, almost guarantees that the prisoner will be either dead or back in custody within weeks.
Any talk of the welfare of prisoners, of them making plans and gaining skills and hoping for a better life,
immediately draws the response, What about the victims? Who is looking after their interests? There is justice to this point of view. The rights and needs of victims of crime are only beginning to be recognised in Australia. Support services for victims are improving, but more could and should be done. The recognition of the needs of victims by police, prosecutors and the courts is far better than was the case twenty years ago, but it remains a work in progress. It is deplorable that while we have universal insurance schemes which give no-fault care to people injured in traffic accidents, compensation schemes for victims of crime remain woefully inadequate.
However, the idea that there is a zero-sum contest between the needs of victims and the needs of offenders
is false. Someone sent to prison is receiving the harshest punishment our society can impose. There will always be disagreement about whether a particular sentence is too short or too long, depending on the case, but this can be addressed through legislation and the legal process. Regardless of how long a person goes to prison, it is in no one’s interests for them to commit more crime when they come out again. Parole does benefit the prisoner, but it also benefits the community generally, and potential future victims in particular. Properly managed, parole makes future offending less likely.
The term ‘properly managed’ brings us back to the Victorian Adult Parole Board and Adrian Bayley. A confidential internal report on the operations of the Board, prepared in 2011 and released this year after legal action by the Herald Sun, identified several serious shortcomings. These included the method of risk assessment, inadequate communication between the Board and other agencies, and the need to prioritise the supervision of high-risk offenders. The need to prioritise—the term used is ‘triage’—stems from the sheer volume of cases. In 2010, the Community Correctional Service had about 300 officers,responsible for supervising more than 9300 offenders. Known high-risk offenders were assessed by probationary psychologists, and their parole managed by junior staff. Such practices are sure signs of resource strain: existing staff and resources are stretched, and overstretched. Eventually, mistakes are made and disaster results.
A key reason for the strain on the parole system, in Victoria and elsewhere, is the continued increase in people going to prison in the first place. Prisons are a necessary evil. No one has thought of any other way to punish and contain the most dangerous and abhorrent offenders. However, the prison population should be kept as low as possible. This policy does not depend on humanitarian concern for offenders—it is sound policy for reasons of naked self-interest.
Prisons are grotesquely expensive. Each year, Australian governments spend $3.6 billion dollars on corrective services. Community corrections consume only a tiny part of this budget. Of every $12 spent on corrective services as a whole, $11 goes to prisons. Supervising an offender in the community costs between $10 and $41 per day, depending on which state or territory you are in. Each prisoner costs between $185 and $335 per day.
The penal system is a giant succubus, draining resources from the community. Every prisoner casts a shadow of lost opportunity—the public good which might have been done with the money used to confine him. Each person put in custody represents a doctor not trained, a teacher not employed, a kindergarten closed. Each cell block is an unbuilt school, or hospital wing, or community centre. Where imprisonment really is needed, for justice and community protection, the great expense and the human waste have to be borne. Where imprisonment is the result of populist political opportunism, it is criminal waste.
The flaws in the parole system revealed by the Adrian Bayley case are real and need to be addressed. However, if the attack on parole in general leads to more prisoners being held for longer and then released without preparation, the result is clear. More former prisoners—including those guilty of sexual and/or violent crimes—will reoffend and the community that punitive measures are supposed to protect will be less safe.