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Precedent (Australian Lawyers Alliance) |
By Dr Mindy Sotiri
The rate of women's imprisonment, and more specifically First Nations women's imprisonment, has been growing faster than any other demographic in NSW for more than a decade. Between 2013 and 2019 there was a 43 per cent increase in First Nations women's imprisonment and a 33 per cent increase in women's imprisonment overall.[1]
In NSW, as in jurisdictions across Australia, over-incarceration and high rates of imprisonment have no correlation to increases in crime rates.[2] Fifty-eight per cent of the women currently in prison are either on remand or serving sentences of under six months. More than 72 per cent of women in custody, and 87 per cent of First Nations women, have served time previously.[3]
So why are so many women going to prison? And why do so many return? Given that the growth in women's imprisonment in NSW has occurred independent to any increases in rates of offending, how might we start thinking about disrupting the cycle of recidivism and over-incarceration? What needs to happen in NSW to achieve broad decarceration for women? And critically, how can we support women to build sustainable pathways out of the justice system?
Overuse of incarceration has been such a consistent feature of Australia’s criminal justice system that it can be easy to view it as an inevitability. However there is strong evidence, supported by multiple local case studies, that there are meaningful and available alternatives. For instance, there are interventions and supports at the point of release that exist entirely outside of the justice system and are remarkably successful at reducing recidivism. This article outlines the social drivers of imprisonment in NSW, explores community-led post-release support for formerly incarcerated women, outlines the best practice principles underpinning this, and argues that significant decarceration is entirely possible.
In order for decarceration to succeed, three things must operate concurrently: political will, sentencing reform, and the resourcing of genuine community-led alternatives. Without adequate resourcing of community-led alternatives, sentencing reform is of limited value. In order for previously incarcerated people to rebuild their lives in the community they need access to housing, support and real opportunities outside of the justice system.
There is little debate about the high levels of disadvantage inside prisons. First Nations women make up more than one-third of all women in NSW prisons.[4] For many decades the relentless work and advocacy by First Nations people, Royal Commissions, a multitude of government reports, and overwhelming volumes of academic and social research have revealed the way in which the over-representation of First Nations people in custody (and at all points in the justice system) both reflects and reproduces a multitude of disadvantage. This disadvantage is situated within a long history of systemic racism which is in itself deeply connected with the ongoing impacts of violent colonisation. In addition to over-imprisoning First Nations women, NSW also imprisons women with multiple forms of disability, many of whom are also victims of serious crime. At least 70 per cent of women in prison have survived some form of gendered violence; 77 per cent have a diagnosed mental health condition; 23 per cent have some form of disability;[5] 77 per cent have drug and alcohol issues they have identified as relating to their offending;[6] and around one-third are homeless on release.[7]
However, the social issues driving imprisonment are too often ignored. Rather than being supported in the community, women with these forms of disadvantage end up being criminalised; 'managed' or 'supervised' in justice system settings. The punishment of disadvantage through carceral systems is of course nothing new. But in the aftermath of significant decarceration during COVID-19, and alongside renewed public and political attention to the failures of the criminal justice system as a consequence of the Black Lives Matter movement, this is a critical moment to examine what is possible in building genuine alternatives.
Between 10 March and 15 May 2020, the NSW prisoner population reduced by more than 1,500 people. During the emptying of prisons during COVID-19, the NSW women's population was reduced from 1,022 to 831 (18.7 per cent), compared to a reduction of 9.4 per cent in the men's population.[8] There were delays and postponements to many court matters, but there were also significant changes to bail, policing, sentencing and parole practices, all of which ensured a quick and significant reduction in prisoner numbers. While the catalyst for this reduction was COVID-19, this process of decarceration provides an important case study. The speed with which the reduction occurred, the political will that allowed it to happen, and the fact that the community did not appear to become any less safe as a consequence, raises important questions about over-incarceration, recidivism, release and indeed the purpose or function of imprisonment. If it is possible for prison populations to drop by 1,500 in six weeks, what else might be possible?
The average length of stay for women in NSW who have been sentenced to prison is 131 days (as measured at the point of release).[9] The most common offence category for imprisoned women in NSW is breaches of justice procedures (for instance, breaches of parole conditions).[10] Although there is no doubt that there are women in prison who have committed serious crimes,[11] it is also clear that protection of the community is not the primary function or outcome of women's imprisonment. It is evident that prison is itself criminogenic. That is, the more someone goes to prison, the more likely they are to return. Given what we know about the failures of imprisonment to achieve its crime control functions, decarceration strategy needs to look outside of the crime control lens. Reducing the prisoner population requires a focus instead on the social drivers of incarceration. It requires an examination of how and why so many women get trapped in a cycle of criminal justice system involvement, with so few genuine pathways out.
Although sentencing principles note that prison is intended to be a punishment of last resort, there is no doubt that in NSW (and in other jurisdictions across Australia) this principle is not adhered to in practice. Prison is frequently used as a first resort, partly because in many places genuine alternatives in the form of social support simply do not exist. Community-based sentencing alternatives are also often not considered viable for women with a long history of incarceration and/or participation in the justice system. Similarly, when women are facing charges, are homeless, are struggling with drugs and alcohol, or are living with other factors of disadvantage that are perceived to compromise their ability to attend court in the future, they are frequently refused bail. This results in a situation where women are often incarcerated because of their imprisonment history and because of their disadvantage; both of which are factors outside of their control when they reach court.
However perpetual punishment for disadvantaged women extends beyond an absence of options at the point of court. It also extends beyond the more commonly understood forms of criminal record discrimination (for instance, in employment). The recent report by the Keeping Women Out of Prison Coalition (KWOOP) noted the way in which women in prison are excluded from mainstream community-based services. They are excluded as a consequence of their experience of incarceration, and also often as a consequence of the complexity and variety of their needs. Many support services (including mainstream domestic violence, homeless, and drug and alcohol services) do not work with women who have experienced incarceration. Women who require support on release from custody are frequently excluded explicitly via policies prohibiting referrals straight from prison, or policies prohibiting women with criminal records or histories of violence. In addition, women are often excluded because of their inability to access external services while in custody. Most support services in the community that women in prison would benefit from have no presence inside prisons.
‘The very nature of imprisonment means that women do not typically have the capacity to connect with services that could be life-changing (if not life-saving) at the time that they most require them. The punitive nature of imprisonment and the absence of connection with the outside world, including in the lead up to release, can mean that even when women want and are ready to make changes in their lives, they do not have the means or the support required to do this.’[12]
On release from prison, women frequently report being excluded from services because of narrow service delivery parameters and eligibility criteria. For instance, exclusion from mental health and domestic violence services can occur because women also have drug and alcohol issues. Exclusion from drug and alcohol services can occur because women are facing criminal matters. Exclusion from many forms of social housing options can occur because of criminal justice histories, or active drug and alcohol addiction.
This is not because these services do not want to support this population, but rather because the community sector is very rarely resourced adequately to provide the kind of comprehensive and holistic support that is required. If we are serious about looking at the social drivers of incarceration, we need to look very carefully at the social support options that are actually available for women outside of the justice system. We need to consider how to build supports and services that meaningfully and holistically meet the needs of women in and out of custody.
Discussions of how to break cycles of recidivism tend to fixate on concepts of 'rehabilitation' or 'reducing reoffending'. This is almost always the well-intentioned focus of the institutions responsible for the administration of punishment. However genuinely stopping recidivism and building pathways outside of the justice system requires a significantly broader and more systemic approach.
The individual rehabilitation of imprisoned people has become the template on which many responses to the problem of recidivism are developed. Rehabilitation is posited both as an alternative to punishment and as the 'good' reason for sending someone to prison. It tends to be presented in the community sector and progressive legal sectors as something we should be aspiring to within the context of incarceration.
However thinking about alternatives to imprisonment in terms of rehabilitation, or in fact thinking about rehabilitation as a purpose of imprisonment, is problematic in that it situates offending at the centre of the conversation and suggests that people inside prison are broken or unwell, or in need of being 'fixed'. Although there is no doubt that meaningful services and supports are needed inside prisons and on release, calls for individual rehabilitation programs pull focus and resources away from the broken systems and structures that predictably funnel people into prison. To only focus on the individual rehabilitation of incarcerated women, or to suggest that the focus of post-release programs should be to reduce reoffending, distracts from the key structural issue: that the majority of women in prison should never have been incarcerated in the first place.
There is no debate about the demographic and structural realities of who we send to prison. However, the structural and cultural threads that connect incarcerated people globally (poverty, homelessness, mental illness, disconnection, colonisation, racism) tend to be set aside when formulating responses to over-incarceration. Instead, a highly individualised approach which focuses on individual offending is proposed. Given that there is broad consensus about the disadvantage and histories of trauma experienced by the women who end up incarcerated, we need to start looking well beyond individual reoffending. The project of building pathways out of the justice system requires a focus that is much more about reducing disadvantage than it is about reducing 'reoffending.'
There has been considerable work in the community sector on researching and exploring the development of principles to guide community-led reintegration and post-release support. This work has been generated by on-the-ground practitioners and people with lived experience of incarceration. The principles guiding these programs attempt to explicitly address the systemic and structural barriers faced by people leaving custody. Many community-based services working with people leaving prison achieve remarkable reductions in recidivism using these principles. Recent evaluations in NSW have found that community-led programs have recidivism rates as low as 4 per cent, 7 per cent and 12 per cent[14] (compared to more than 50 per cent in the general population, and 80 per cent in populations with multiple risk factors such as long histories of imprisonment). While these are small-scale local studies, these principles are replicated internationally and are increasingly recognised in academic work. They provide a critical starting point for thinking concretely about how to build programs, supports and communities which are genuinely responsive to the needs of women leaving prison, and unashamedly ambitious in terms of reducing recidivism. These principles include:
1. Reintegration framed outside of the lens of rehabilitation. There is a need to create and facilitate pathways for people leaving prison that focus on addressing systemic barriers to reintegration, and accessing identities and ways of living outside of the justice system. This means explicitly addressing barriers to reintegration including discrimination, poverty and homelessness. For First Nations populations, identity is often related to culture, family and community. Non-prison identities might also be accessed in the form of employment, volunteering, and educational opportunities. The critical point here is that reintegration should not be framed in terms of addressing offending, but rather about building a life outside of the prison environment.[15]
2. Service delivery incorporating systemic advocacy. Service delivery must include a significant advocacy component that addresses structural barriers for individuals (such as access to housing, employment, education, health and social security benefits), and advocate systemically for change when it is required (for instance, in the case of discriminatory employment practices). Systemic advocacy sees workers walking alongside people leaving custody, and challenging the multiple forms of perpetual punishment experienced by people with criminal records and those who have experienced imprisonment.[16]
3. Pre-release engagement. Meeting and working with people prior to release is vital to building the engagement necessary to sustain the casework relationship, building trust between the person in prison and the community organisation on the outside, and practically planning for re-entry into the community with complex needs populations.[17]
4. Holistic, relational and long-term casework models. People with long histories of trauma, combined with the ‘referral fatigue’ often experienced by this group, require long-term support in order to build engagement and trust. Long-term support also allows people the opportunity to develop the skills required to navigate frequently hostile or unwieldy service systems.[18]
5. Community-based and community-led outreach. Services that work with people with long histories of involvement in the criminal justice system need to operate outside of the criminal justice system and in the communities in which people are living.[19]
6. Housing first approaches. Support must be concrete and people need somewhere safe and secure to live. People require a solid base from which they can make the changes required to stay out of prison.[20]
7. Genuine collaboration with people with lived experience of incarceration at all levels of program delivery. The expertise of people who have themselves been to prison is critical in both the design and delivery of community-based reintegration services. [21]
CONCLUSION
Incarceration has become such a chronically over-used response to disadvantage that it can be difficult to imagine both a justice system and a social service system without it. However there are clear alternatives. There are alternatives to be found simply by challenging the myth that imprisonment operates as a crime control measure. There are alternatives to be found by shifting political will in a way that inspires straightforward decarceration (as seen during COVID-19). And critically there are alternatives in properly resourcing community-led services and organisations to provide meaningful and relevant support for people on release so that they have the genuine option of moving away from the criminal justice system.
This article draws on the work of two key pieces of work (both previously published by the author). The recent 2020 KWOOP Coalition Profile of Women in Prison in NSW Snapshot Report (co-authored with Lucy Phelan and Marg Scott), and the 2020 Winston Churchill Fellowship Report, 'An Exploration of Best Practice in Community Based Reintegration for People Leaving Custody in the US and the UK'. This article also draws on the work of the author at the Community Restorative Centre, an NGO in NSW providing support to people leaving custody and their families.
Dr Mindy Sotiri is the Executive Director of the Justice Reform Initiative (JRI). The JRI is a new national advocacy body working to reform the criminal justice system and end over-incarceration across Australia. Mindy has spent more than 25 years working in criminal justice system settings as an advocate, social worker, academic and activist. Most of her work in the last decade includes overseeing advocacy, policy and research at the Community Restorative Centre which is an organisation working with people leaving prison, and their families.
[1] L Phelan, M Sotiri and M Scott, Profile of Women in Prison in NSW: Part A: A Snapshot (Report, 2020) (KWOOP report).
[2] Ibid.
[3] Ibid.
[4] NSW Bureau of Crime Statistics and Research (BOCSAR), Custody statistics, ‘NSW prison statistics’ <https://www.bocsar.nsw.gov.au/Pages/bocsar_custody_stats/bocsar_custody_stats.aspx>.
[5] KWOOP report, above note 1.
[6] M Kevin, 'Drug use in the inmate population – prevalence, nature and context', CSNSW Research Publication, No. 52, 2013.
[7] KWOOP report, above note 1.
[8] N Chan, ‘The impact of COVID-19 measures on the size of the NSW adult prison population’, BOCSAR (Crime and statistics bureau brief, July 2020) <https://www.bocsar.nsw.gov.au/Publications/BB/BB149-The-impact-of-COVID-19-measures-on-the-NSW-adult-prison-population.pdf>.
[9] BOCSAR, NSW Custody Statistics Quarterly Update (Report, 2019).
[10] KWOOP report, above note 1.
[11] Ibid. Snapshot data from 2019 shows that 422 women are serving time for crimes that magistrates or judges determined to be serious enough to warrant sentences of more than 12 months.
[12] Ibid.
[13] Please note that versions of these principles have also appeared in M Sotiri, An Exploration of Best Practice in Community Based Reintegration for People Leaving Custody in the US and the UK (Churchill Fellowship Report, 2016) and the KWOOP report (above note 1).
[14] See WEAVE, Creating Futures (Evaluation report, April 2020); Women’s Justice Network, Adult Mentoring Program (Evaluation report, 2016); Community Restorative Centre, Alcohol and Other Drugs Transition Program (Evaluation report, 2016).
[15] Sotiri, Churchill Fellowship report, above note 13.
[16] M Sotiri and S Russell, ‘Pathways home: How can we deliver better outcomes for people who have been in prison?’, Housing Works, Vol. 15, No. 3, 2018, 41.
[17] M Borzycki and E Baldry, ‘Promoting integration: The provision of prisoner post-release services’, Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology: Canberra, No. 2, 2003; J Gilbert and B Elley, ‘Reducing recidivism: An evaluation of the pathway total reintegration programme’, New Zealand Sociology, Vol. 30, No. 4, 2015, 15–37; B Angell, E Matthews, S Barrenger, A Watson and J Draine, ‘Engagement processes in model programs for community re-entry from prison for people with serious mental illness’, International Journal of Law and Psychiatry, Vol. 37, 2014, 490–500.
[18] Gilbert and Elley, above note 17, 15–37; Angell et al, above note 17, 490–500; B Hunter, A Lanza, M Lawlor, W Dyson and D Gordon, ‘A strengths-based approach to prisoner reentry: The fresh start prisoner reentry program’, International Journal of Offender Therapy and Comparative Criminology, Vol. 60, No. 11, 2016, 1298–314.
[19] D Padgett, L Gulcur and S Tsemberis, ‘Housing first services for people who are homeless with co-occurring serious mental illness and substance abuse’, Research on Social Work Practice, Vol. 16, No. 1, 2006, 74–83; S Kendall, S Redshaw, S Ward, S Wayland and E Sullivan, ‘Systematic review of qualitative evaluations of re-entry programs addressing problematic drug and alcohol use and mental health disorders amongst people transitioning from prison to communities’, Health and Justice, Vol. 6, No. 4, 2018.
[20] Padgett et al, above note 19.
[21] Sotiri, above note 13.
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