The perils of penal reform

horrellThe effective sacking of NT Corrective Services Commissioner Ken Middlebrook is sad but politically inevitable.  It came in the wake of the escape and subsequent voluntary surrender of axe murder and rapist Edward Horrell from a Sentenced to a Job work gang near Nhulunbuy.

Minister John Elferink had emphasised after some earlier Sentenced to a Job escapes that only low security prisoners were permitted to participate in the program and that sexual assault offenders were absolutely banned.  In view of that promise, Horrell should not have been on the program and it was appropriate that Middlebrook as the Commissioner should tender his resignation in those circumstances.  A Prison Officers’ Association spokesperson asserted that Horrell’s admission to the program could only have been personally approved by the Commissioner.

Some have suggested that Minister Elferink should also have resigned or been sacked as a result.  However that does not reflect the modern Australian concept of Ministerial responsibility unless Elferink knew Horrell or other sex offenders were being allowed to participate, or unless personal not just organisational organisational responsibility could be sheeted home to him for some other reason.  As Richard Mulgan explains:

Whether ministers do resign depends on a range of factors, including the seriousness of the alleged failure, the extent of the minister’s personal responsibility and a political calculation (ultimately by the prime minister) about the consequences for the government’s standing of either accepting or rejecting the resignation.

The fact that Elferink had felt compelled to promise that sexual assault offenders were banned from the program was no doubt politically necessary to maintain public confidence in Sentenced to a Job, but that doesn’t mean an absolute ban on rapists (or for that matter murderers) actually makes sense from a rational policy perspective.  Almost all of them will eventually be released into the community, hopefully initially under reasonably stringent parole supervision, and so reducing recidivism (re-offending) is a critical aspect of any effective crime reduction strategy.  NT recidivism rates typically run at more than 50% after 2 years.  In other words, half of all prisoners released will have committed another crime serious enough to land them back in prison within 2 years of release.

In those circumstances, clearly any well designed program aiming at providing prisoners with job skills and on-the-job experience and life skills (like Sentenced to a Job) is a good idea and should be endorsed and supported by the public.  Similarly with parole supervision programs that provide appropriate levels of support after release to give offenders a good chance to “go straight” and settle into a productive, law-abiding life in the community.

That objective is at least as valid and important for rapists and murderers as for any other offender, although obviously community protection will assume a higher priority as against rehabilitation than with less potentially dangerous categories of offenders.  However, it would appear that Horrell had already served 20 years imprisonment, had been well behaved in prison, and was classified as low security.  That would suggest he may well have been an appropriate candidate for a work release program, rather than releasing him directly into the community without any such preparation, had it not been for Minister Elferink’s promise that no sexual assault offenders would ever be allowed to participate.

A version of Daniel’s Law (publication of names and contact details of convicted and released serious sex offenders) is proposed for introduction in the NT.  It raises similar concerns about its effect on recidivism, as criminal lawyer Russell Goldflam persuasively argues.

It will always be politically difficult to implement and maintain public confidence in programs aimed at reducing recidivism, even though they are demonstrably important aspects of crime reduction, an objective everyone professes to support.  It is always easy to whip up a “soft on crime” scare campaign when a prisoner or parolee escapes or commits another high profile crime (as will inevitably occasionally happen in the best designed and administered system). Oppositions seldom resist the temptation to run an expedient “law and order” campaign in those circumstances.

Minister Elferink deserves credit for introducing and continuing to support Sentenced to a Job despite media and public controversy.  He deserves no credit at all for introducing Daniel’s Law: a stupid, populist measure which will ultimately prove counter-productive and make crime worse rather than better.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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GrueBleen
GrueBleen
6 years ago

“Whether ministers do resign depends on a range of factors, … the extent of the minister’s personal responsibility… ”

But the Minister always has “personal responsibility”. It isn’t good enough for a minister just to issue some statement into the ether and then walk away. His “personal responsibility” includes ensuring that his order is being obeyed. Trust, yeah, but also verify – isn’t that the winning formula ? If there’s no process of verification – as very clearly there wasn’t – then it’s just farting into the wind.

“…to give offenders a good chance to “go straight” …” “That objective is at least as valid and important for rapists and murderers as for any other offender …”

Are you one of those of “the left” who valorize victims ? In this case, the “victims” of a process of law which has convicted them of serious anti-humanity crimes. I think you should spend some time talking to Nicholas about that: even if there’s much less than the 50% chance of recidivism you’ve stated, then Nicholas – and, I confess, me – would want the convicted criminal shut away for his or her lifetime ie, until they actually die.

But then, I guess that makes me and Nicholas of “the right”, yes ?

derrida derider
derrida derider
6 years ago

Yes, that is a horrific recidivism rate, and if it holds for very serious offenders – something I doubt as it is probably Territorians getting into drunken brawls who account for the bulk of that figure – then that rate should be lowered by simply not releasing them. Incapacitation is the sole method by which prison reduces crime.

But as long as you are going to release them then putting them into something like Sentenced to a Job when they are near the end of their time seems sensible – after all only a fool would escape if they had less than a year left. How long did Horrell have to go?

GrueBleen
GrueBleen
6 years ago

DD,

Yes I agree that probably the dominant component of the recidivism rate would be the kind of stuff you’ve listed. But then, even that can have dire consequences as, for example, if a recidivist drunkard insists on driving a car or when street brawls end up with ‘one punch’ deaths.

As to Horrell, that he was in the Sentenced to a Job scheme indicates that he probably didn’t have all that long to go (though I don’t know the actual time and Ken’s link didn’t give details), but by absconding he’s shown that he might just have a tendency to be undisciplined. Not a real good attribute for a rapist and axe murder who’s about to be loosed back into society.

Australia does seem to get its fair share of serial rapists and/or killers which our judiciary appears to delight in releasing to see if they’ll do it once again.

ChrisB
6 years ago

Well, to be fair, while I’m left enough to think that never-to-be-released is a rotten idea a back-of-the-envelope calculation based on ABS figures (http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0) suggest that it wouldn’t make that much difference in incarceration rates when compared to the ever-upwards secular trend.

GrueBleen
GrueBleen
6 years ago
Reply to  ChrisB

Yeah, ChrisB, I reckon never-to-be-released is a rotten idea too. It’s just that I think that to-be-released-so-they-can-do-it-again (and again and again – how many women had Jill Maher’s killer raped while on parole ?) is a much rottener idea.

So much rottener, indeed, that I’m totally against it.

ChrisB
6 years ago

OK, GB, just to get some kind of an idea how your plan would work without the wisdom of hindsight, what proportion of offenders are “not to-be-released-so-they-can-do-it-again”?
Given that 50% reoffend, and approximately 25% presumably re-reoffend, and 12 1/2% rrro – (again and again and again) – what proportion of them?
Before we discuss any of the philosophical or moral issues, let’s check out the actual proportion of cases where you know better than the judges and the parole board.

GrueBleen
GrueBleen
6 years ago
Reply to  ChrisB

Ok ChrisB, why are you trying to get me to identify a number when I’ve made it abundantly plain that what I object to is releasing people convicted of anti-humanity crimes.

So, simply, nobody convicted of murder and nobody convicted of rape (especially those convicted of rape with violence) are to ever be released.

Is that clear now ?

As to your attempt to drag that delusion of human imagining, “morality” into this very simple matter of basic ‘self protection’, well that’s your issue. But feel free to attempt to describe where “morality” comes into this or any other human judicial activity.

conrad
conrad
6 years ago
Reply to  Ken Parish

Just as a random comment on your point (6), it’s curious how old the median age and how wide the range is for sexual assault — This gives some reasonable evidence for the comments on your linked article about Jill Meagher versus just psychological profiling. This really suggests that the profiles of different crimes and criminals are very different, and so presumably should affect how long you keep people in until you can consider them safe for the community. In this respect, this type of crime might need longer sentencing than the senseless violence only type crime which generally is far more restricted in its age range.

ChrisB
6 years ago
Reply to  Ken Parish

I didn’t say it wouldn’t make any difference: I said it wouldn’t make much difference compared with the secular trend, which is rising sharply. I was working on the back-of-the-envelope calculations of 3% of offenders going from 10-year sentences to never being released, and that would mean that each year 10% of that 3% of offenders – approximately .3% – were added to the eternals. That compares to a p/a increase in imprisonment stats over the last decade of 3.4%, approximately 10 times the size.
Mind you, I said 3% on the basis that only a tenth of sex offenders/murderers would fall in the nevertobereleased category; now GB has upped it to ‘nobody convicted of murder and nobody convicted of rape” that raises the base rate to 21% (murders and sexual assaults Australia-wide) and therefore the p/a increment to 2.1%.
All these are very rough figures, and at that rate would need quite a lot of adjustment to allow for reoffending rates; I’m just talking order-of-magnitude figures here. A rough guess, still, is that (if all murderers and rapists were lifers) instead of going up by 39% 2004-14 (19% adjusted for population growth) incarceration would have gone up by 72% (46%) – very roughly an extra 8,000 people. On KP’s figures, 800 million extra dollars every year, compounding. That figure’s overstated, for several reasons, but I’d say that half a billion was fair.
So the question for GB is whether he thinks more lives would be saved by using that half a billion dollars for locking people up or on something else.