Most people access laws electronically these days, at specifically designed government websites or at Australia’s central electronic repository of state and federal legislation and case law, AustLII. But, as archaic as it may sound, the government printers still dutifully bind hard copies of each and every parliamentary bill minted into law. If you wanted to, you could go to the parliamentary library of your capital city right now and request a copy of whatever law it is that piques your curiosity today: the Seafarers Rehabilitation and Compensation Act, the Pig Industry Act and deceptively unrelated Spam Act, the Research Involving Human Embryos Act or perhaps the Psychotropic Substances Act. Chances are the volume will be in perfect condition, no dog-ears here. You might even be the first non-librarian to handle it.

We citizens are not normally very interested in the minutiae of legal statutes, the provisions and the schedules, the appendices and the amendments. But given what’s recently been brought to light in the Northern Territory, you might be starting to wonder why the hell we are sending all these Indigenous kids to prison (or ‘detention’ as it is euphemistically called, but I’ll stick with the honesty of ‘prison’).

Indeed, long before the now notorious Four Corners broadcast, Mick Gooda was asking why Australia is better at keeping Indigenous kids in prison than in school? If you want an answer to that question you might start by pulling down from the library stacks a copy of your State or Territory’s sentencing law.

A crash course in the law of criminal sentencing

If you get your hands on a copy you’ll see that right up front is a list of the aims of sentencing. These are the principles that all judges must take into account when sentencing a person found guilty of a crime. There will be four or five dot points, and while they might not seem to be in any particular order, long ago the High Court made clear that one objective stands above all others: deterrence. I can’t stress how important this word is, how many people it has locked up, how many lives it has destroyed, how much money it is costing us, how crowded it is keeping our prisons, and how poorly it is understood.

Deterrence is a legal concept that basically amounts to scaring people so they’ll do the right thing. It can be directed to the person who is being sentenced – that is, give this person a sentence that will really freak them out so that they will not commit another crime in future. Or it can be concerned with the general public, who are presumed to be taking note of the sentences handed down in their local court – that is, give this person a sentence that will really freak everyone else out so that they will never commit a crime like the one for which the scapegoat is being sentenced.

Of course, deterrence is not the only aim of sentencing. Another important aim is rehabilitation, which, in ordinary language, means helping people who have done the wrong thing do the right thing in future. Then there is good old-fashioned incapacitation, which is best understood as forcibly preventing people who have done the wrong thing from ever doing the wrong thing again; the classic example is the practice of amputating the offending hand of a pickpocket. Finally, there is punishment or retribution – making people pay for doing the wrong thing. These make up the criminal law’s toolkit for maintaining a modicum of order in our society. If it sounds a little reductive, like a set of classroom rules, that’s because it is. The criminal justice system has been described, by a judge no less, as a ‘hopelessly blunt instrument of social policy’. But for as long as anyone can remember we’ve had this system, these aims and these rules, and they have largely gone unquestioned, until recently.

Uncomfortable developments

The last few decades have seen momentous advances in technologies and methods of data collection, retention, analysis and sharing. In the sphere of criminal sentencing this has resulted in a body of rigorous empirical penological research and the development of specialist research institutions. The resulting studies, both qualitative and quantitative, have increasingly problematised many of the assumptions underlying our traditional models and principles of sentencing. One of the most important of these challenges has been the evidentially grounded observation that prison isn’t very successful at deterring people from committing crime. Prison has been shown to be particularly ineffective in relation to kids (thankfully, in Victoria the top court ruled in 2011 that certain aspects of deterrence theory are of no relevance to sentencing children).

Just as disconcerting is the growing consensus that not only is prison hopeless at deterring people, it makes people more likely to commit further crimes and wind up back in prison. Perhaps this isn’t too surprising. Did we really think that throwing a bunch of troubled people together in a highly artificial environment, away from the normalising influence of the general population, was going to do anything other than further alienate and harden them? Indeed, we are only just beginning to understand the irreparable harm that prison inflicts on individuals and communities.

The only claim that prisons can make with any credibility these days is that they do achieve incapacitation: as long as a person is locked up, he or she has little opportunity to commit further crimes. The short-sightedness and sheer cost of this technique of crime control should be immediately apparent. Contrary to what some in the current NT government might hope, current laws only permit courts to imprison for life the very worst offenders (and even that ought to be questioned). Everyone else has to be released some time, and generally speaking the longer they have been in prison the more socially maladjusted they will be upon their release.

The only other thing prisons succeed in doing is justifying their own continued existence. Self-perpetuating and metastatic, prisons guarantee their own future necessity by their very failure to fulfil our aims for them. Which is why Ethan Austral, one of the interviewees on the Four Corners broadcast, said that most of the kids released from Darwin’s Don Dale Youth Detention Centre are back within a few weeks. These kids are institutionalised; for them, prison has become the new normal. So much so that even kids who break out and run amok return to break their way back in, presumably because they have few other places to go.

Why do we keep imprisoning people – especially kids – in the face of mounting evidence to doubt the effectiveness of prisons (as well as a growing awareness of their staggering costs)? The short answer is that the law moves at a glacial pace (especially laws made by the Courts as opposed to the Parliament). While there have been signs of a growing realisation in the judiciary that sending people to prison is not always the answer, judges are required to apply the laws as they appear in the little bound volumes in parliamentary libraries across Australia. If those laws continue to demand that judges sentence people on the assumption that prison is an effective deterrent, then that is what judges will continue to do.

Dramatic change will only come as a result of forces outside the courts: from an informed public and from expert reports like that which will hopefully be produced by the current Royal Commission. Our criminal justice system is built on the assumption that deterrence works. If that assumption is flawed, as many people now agree it is, this goes to the very heart of the way we have been administering our criminal laws since colonisation. As far back as 1988, the Australian Law Reform Commission recommended that we should abandon major aspects of deterrence in sentencing, but this recommendation received little attention and was not acted upon.

It’s time we woke up. We need a new paradigm for criminal sentencing in Australia and we could do worse than look at the innovations currently being trialled in Norway, Canada and even New York. The integral flaws in deterrence theory have long been the law’s worst kept secret, but they are secret no more.

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