LLB180 Lecture Notes - Lecture 13: Unthinkable, Victim Impact Statement, Abhorrence
Week 13 – Sentencing III
Imprisonment Rates
• A common, and mistaken, assumption is that imprisonment rates are merely
reflecting of crime rates. Nor are imprisonment rates a reflection of the size of the
population, or level of industrialisation. As we can see from the figures above, the
two Australian territories, with the smallest populations, have both the lowest (ACT)
and the highest (NT) imprisonment rates.
• Imprisonment rates are not mere end products of crime but effects of a whole range
of social, political, legal and cultural factors. Such factors can include, but are
certainly not limited to:
- Kinds of behaviour the legislature or the judiciary define as criminal
- Level of police funding
- Political and community pressure for certain sorts of policing
- How the police define their priorities and exercise their considerable discretion
• The aforementioned point shows us then that imprisonment rates are amenable to
change
• The NSW and Australian imprisonment rate has doubled since 1978
- Emergence of post-s e puitieess
Over-representation of Aboriginals
• Over-representation of 15 times nationally and higher still in certain jurisdictions
such as WA
• It is a distinguishing feature of Australian imprisonment
• D Weatherburn, Arresting Incarceration: Pathways out of Indigenous
Imprisonment (2014) 2-7
- Growth of in Indigenous imprisonment has not been uniform across the country
but shows, every state and territory has experienced an increase
- The advent of high levels of Aboriginal imprisonment appears ot be a relatively
recent phenomenon dating from the last quarter of the 20th century
- Aess to a shool for oes hildre or etitleet to a health haitatio ith a
safe water supply and sanitation depends upon active government provision and
regulation through public education systems, housing authorities, elaborate
bodies of local government and town planning law and the like. In the rural areas
where most Aboriginal people lived such provision was rarely made and indeed
determined efforts to prevent Aboriginal people from residing inside town
boundaries and accessing services were common. The absence of provision or
access not only resulted in people being socially excluded but also made them
immediately vulnerable to policing and intervention by a plethora of government
authorities responsible for eforig the positie regulatios iposed the
regulatory state.
- {Aboriginals] lived a conditional existence, in the shadow of some form of penal-
welfare intervention
- By 1999 Aboriginal prisoners constituted 20% of the total Australian prison
population
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- These enormous levels of contact with the criminal justice system exacerbate the
existing high levels of poverty and unemployment amongst those directly affects
as well as their families and communities, many of which can expect at any given
time to have a substantial proportion of their young adult men under some form
of detention or otherwise caught up in the criminal justice system. High
Aboriginal incarceration rates perpetuate for communities as well as for
individuals incarcerated some of the effects of civic and economic
disenfranchisement that were in former times produced by overtly
segregationist laws
• D Garland, Punishment and Modern Society (1990) 287, 288
- Punishment is an apparatus for dealing with criminals. But it is also an expression
of state power, a statement of collective morality, a vehicle for emotional
expression, an economically conditioned social policy, an embodiment of current
sensibilities, and a set of symbols which display a cultural ethos and help create a
social identity
- What appears on the surface to be merely a means of dealing with offenders so
that the rest of us can lead our lives untroubled by them, is in fact a social
institution which helps define the nature of our society, the kinds of relationships
which compose it, and the kinds of lives that it is possible and desirable to lead
there
- No method of punishment has ever achieved high rates of reform or of crime
control – and no method ever will
- It is only the mainstream processes of socialization which are able to promote
proper odut o a osistet ad regular asis. Puishet, so far as otrol
is concerned, is merely a coercive back-up to these more reliable social
mechanisms
Restorative Justice
• Crie as daage or rupture to soial fari
• Crime is seen as a violation of people and relationships, thus creating an obligation
to repair or restore the social fabric
• Restorative justice seeks to involve the victim, the offender and the community in a
search for solutions which promote repair, reconciliation and reassurance. The
emphasis is on the process itself, the involvement of a wider range of parties, and
the desire to achieve a restorative, rather than simply punitive, outcome.
• Effectiveness
- Restorative justice and developments such as family group conferencing are not
without their critics, especially in relation to their applicability to Indigenous
communities. The assumption that particular Indigenous restorative practices
can be transposed to other cultures and other Indigenous communities has
rightly been questioned. All Indigenous communities are not the same,
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• Any restorative justice processes should:
- be led by an independent and impartial person
- be required to submit its decisions for court approval
- allow the participation of the victim, the offender, and their families and
significant others
- make provision for access to legal advice before and after any restorative justice
processes
- focus on apology and on appropriate reparation and/or compensation for the
offence
- be required to respect relevant principles such as not imposing on the offender a
financial burden that is not means-related
• Examples
- Youth conferencing (p 1231)
- Young Offenders Act 1999 (NSW)
- Circle sentencing (CB 1233) → aboriginal communities
Re-Integrative Shaming Experiments (RISE)
• The utilisation of public participatory shaming in order to re-socialise the individual
back into the collectivity rather than shaming through expulsion from the collectivity
• RISE deters the shamed offender, it also deters many others
• Both the specific and general deterrent effects of shame will be greater for persons
who remain attached in relationships of interdependency and affection because
such persons will accrue greater interpersonal costs from shame
• Stigmatisation can be counterproductive by breaking attachments to those who
might shame future criminality and by increasing the attractiveness of groups that
provide social support for crime
• Shaming is a social process which leads to the cognition that a particular type of
crime is unthinkable. Cultures where the social process of shaming is muted are
cultures where citizens often do not internalise abhorrence for crime
• Combination of shame and repentance is more powerful than shaming alone
[therefore increases effectiveness since this system incorporates both]
• Shaming is a participatory form of social control, builds consciences through citizens
being instruments as well as targets of social control. Participation in expressions of
abhorrence toward the criminal acts of others is part of what makes crime an
abhorrent choice for us ourselves to make
• Societal incidents of shaming remind parents and teachers of the need to moralise
with their children across the whole curriculum of crimes
• Public shaming puts pressure on parents, teachers and others to ensure that they
engage in private shaming which is sufficiently systematic, and public shaming
increasingly takes over the role of family and school
• The effectiveness of shaming is often enhanced by shame being directed not only at
the individual offender but also at their family, or their company. When a collectivity
as well as an individual is shamed, collectivities are put on notice as to their
responsibility to exercise informal control over their members, and the moralising
impact of shaming is multiplied
• Restorative justice can work, and can even reduce crime by violent offenders. But
there is no guarantee that it will work for all offence types
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Document Summary
Imprisonment rates: a common, and mistaken, assumption is that imprisonment rates are merely reflecting of crime rates. Nor are imprisonment rates a reflection of the size of the population, or level of industrialisation. As we can see from the figures above, the two australian territories, with the smallest populations, have both the lowest (act) and the highest (nt) imprisonment rates. Imprisonment rates are not mere end products of crime but effects of a whole range of social, political, legal and cultural factors. Such factors can include, but are certainly not limited to: Kinds of behaviour the legislature or the judiciary define as criminal. Political and community pressure for certain sorts of policing. How the police define their priorities and exercise their considerable discretion: the aforementioned point shows us then that imprisonment rates are amenable to. Level of police funding change: the nsw and australian imprisonment rate has doubled since 1978.
