This is an edited version of a speech I gave at the 9th International Criminal Justice Conference in Melbourne in 2019.

The past ten years have seen rapid rises in incarceration and its attendant costs, right across Australia. These basic facts are becoming more widely-understood, and this is, in turn, changing the politics of criminal justice in Australia. Slowly, reform is becoming more politically viable. My purpose here is to describe why this is happening and how we can help it along.

Since 2016, the Institute of Public Affairs Criminal Justice Project has put out nine research reports, two briefs for parliamentarians, and a book chapter; we have met with more than 20 MPs and their offices; and had dozens of opinion pieces and media mentions. The IPA is Australia’s leading centre-right think tank, and over this time we have been the loudest voice on the conservative side of politics in calling for a rethink of criminal justice policy. Our project started with one basic question: whether Australian jurisdictions are incarcerating too many people unnecessarily. Our interest in the topic was inspired by work done by similar institutions in the United States, and by a suspicion that criminal justice has escaped the kind of sceptical scrutiny that we normally apply to government spending and action. More deeply, our work in this area connects to our belief that society should have a shared aspiration for individuals to live dignified, self-sustaining, meaningful lives.

Ordinarily, when I am speaking on this topic I start by recounting the basics: that over the past decade, Australia’s incarceration rate has risen by 30 percent, to an all-time high; that over the same period, the cost of running our country’s prisons has risen 40 percent (and this does not include capital costs or healthcare costs or anything else); and that for all this expenditure, 58 percent of prisoners have been in prison before, and 45 percent will return to prison within two years of their release from prison. I don’t need to dwell on this too long here today, given my audience – but also because these basic facts are now becoming well-known. Today, if you sit down with ministers or MPs and their staff, they will be familiar with these trends, or at least, they won’t be surprised by them.

But here is the challenge: politics does not respond to facts, it responds to problems and opportunities. For political actors to be motivated toward reform, in criminal justice or anywhere else, they must stand to lose by inaction or gain by action (or both). In a democracy, this means that there must be a constituency that is not being served, or is under-served, by the status quo and enough people need to care about this fact for politicians to take notice.

It is a mistake, then, to think that the facts speak for themselves. As a political matter, the facts need to be connected to the values and expectations of voters so that the political class is motivated to act. The question then is how do we get more people invested in criminal justice reform, and this means finding a narrative about those basic facts that is of general interest. That is, one that targets both audiences – politicians and the public.

The purpose of criminal justice

When I started working on our project, I thought that a conservative audience would be moved best by an emphasis on absolute costs. After all, the rising spending on incarceration (and criminal justice generally) creates trade-offs with other government expenditures that mean, in the end, less money for the other services that government provides. And this is aside from any principled argument about reducing the size of government, which is a key message for the IPA’s members and stakeholders. What I have learned though is that by itself, the rapid growth in spending does not present as a problem. It is merely a fact.

This is because criminal justice is fundamental to government. It aims at something that everyone agrees is valuable: community safety. And so, generally speaking, people are happy to see governments spend on police, courts, and prisons. The basic facts of Australia’s criminal justice systems need to be problematised in terms of this value – the question is not whether Australian jurisdictions are spending too much, but whether taxpayers are getting what they think they are buying. So a related message is ‘value for money’. Crucially though, the argument that Australian governments are wasting money on unnecessary incarceration depends on first establishing community safety as the value against which waste is measured.

The benefit of starting the conversation here is that you are not asking your audience to set aside any prior beliefs or commitments they may have – because it is highly likely that they agree with the proposition that the government should reduce crime and keep people safe. You are also appealing to their self-interest. When people think of criminal justice, they are thinking of very real things: the freedom to walk the street at night, the confidence to let their kids go to the park, the comfort of making a home for their families. The aim of criminal justice reform is not to expand people’s empathy or to further broad-based social change – it is to better deliver a vital service to the community.

Australian reforms

If we take a look at the criminal justice reforms that we have seen in Australia in recent years, the importance of this framing is clear.

In 2017, the New South Wales government passed a package of reforms that, among other things, abolished suspended sentences, added three new district court judges, and changed the way offenders are managed in the community. This law was passed only after the government had committed $3.8 billion to new prisons ($2.2 billion on construction costs alone) – of course, in an ideal world this is the kind of expenditure that governments would aim to avoid through sensible reforms. But, on the plus side, this commitment also helped to create the space for reform by keeping faith with voters’ expectations. The reforms themselves were cleverly packaged to emphasise community safety. Suspended sentences were replaced with expanded Intensive Corrections Orders and the message was that judges now had more punishment options than before. Speeding up the District Court is good for those accused of crime but it is also good for victims. And changes to the administration of parole and community corrections were good administratively but also provided reassurance to the public.

Similarly, the 2016 introduction of home detention in South Australia was presented as “better sentencing options” and weas “not about saving money” (quoting the government’s contemporaneous media releases).

These are the kinds of incremental reforms that can be achieved by building a case for community safety through what I like to call punishment reform. The goal is to deliver policy that sits at the intersection of rehabilitation and retribution. We know that many offenders could be punished more cheaply and at less risk of reoffending in the community, but we need the public to come along with us, and this means emphasising the public good that we hope to achieve.

Objections

I want to talk about how we can broaden the message from this starting point, but first, very briefly, I will address what I consider to be the two main objections to this framing of the issue.

First, the community safety message might be taken as inadvertently conveying to people that they are not safe right now. Australia is a very safe country, with falling victimisation rates, but it is also a country that consistently reports, in surveys, feelings of being unsafe. The Productivity Commission reports on feelings of safety each year, and a persistent finding is that only half the population feel safe walking alone at night and only a quarter feel safe on public transport at night. Focusing on community safety, so this argument goes, reinforces these impressions, even though they are based, in the main, on awareness of a few high-profile cases rather than the overall data.

Secondly, community safety elides the effect of the current system on offenders themselves.

As to the first of these, I think that this view is somewhat mistaken. The community safety message takes the basic facts of our criminal justice systems and turns them into a problem that is easily understood by both of our key audiences. The point is not that people ought to feel safe, but that they are right to expect the government to do what it can to keep them safe. People have the right idea, but they may not know that the current system is self-undermining – that our indiscriminate preference as a society for incarceration is creating perverse effects like locking people into a cycle of reoffending and taking money away from the police and courts and diversion programs. I do not see a clash of values here, I just see bad policy.

The second objection is more difficult, because it does lead to a clash, if not of values, then of priorities. One of the benefits of criminal justice reform can be, as I said, a second chance at  meaningful life for many individuals. And we need to say this. The question is how we can connect this goal to our overarching message of community safety.

Broadening the message

Late last year, the most conservative US President in perhaps 100 years signed a criminal justice reform law. The signature by Donald Trump of the First Step Act was 15 years in the making, from when the centre-right Republican Party in Texas first realised that the state could not afford to keep building new prisons.

This is by now a familiar story, and anyone who has heard the pioneer of criminal justice reform in the United States, Jerry Madden, will recognise his messages: “Don’t build new prisons, they cost too much” and “We need to distinguish between the people we are mad at and those we are afraid of”. These messages, or variations of them, are still the gold standard for messaging on this issue. The first gives politicians a way into the issue, and the second gives people the opportunity to reconsider who is deserving of our harshest punishment.

The concept that some people deserve punishment is mainstream but somehow increasingly controversial among experts in the field. But seen properly, the moral framing of the criminal law is an asset to criminal justice reform.

For example, the notion of proportionality in punishment is unthinkable without some moral basis on which to assess wrongdoing and harm. Making the argument that some people are being over-punished depends on a common language about the moral claims at the heart of the criminal law.

Moreover, just as people can deserve punishment, they can also deserve a second chance. If we believe that our moral standards are ultimately what make our society a peaceful, harmonious, and free place, then we all have an interest in seeing those standards vindicated by a system of correction, not just a system of punishment. That is, corrections is a way for society to express its values.

We often talk about punishment reform for nonviolent offenders in particular, but the broader point is that it is possible that prison is not the punishment that best fits the crime.

This is why the dignity of work is such a powerful tool in corrections. We know that one of the most consistent findings in criminology is the link between a lack of employment and offending. And so for those offenders who are suited to work (which, admittedly, will not be everyone of them), we have both moral and pragmatic reasons to promote employment and training. The second chance is not just a second chance at freedom, but a second chance at life. The recent Victorian government initiative to find jobs for released prisoners on major infrastructure projects is a good example of putting this value into action.

American reformers have not shied away from the moral content of their work. President Trump, following his predecessor’s example, has celebrated April as Second Chance Month. Last month, Trump accepted an award for the law and in his comments he noted the importance of employment, “because when people can get a job, earn a paycheck, and find purpose in their work, and especially when they are coming out of prison, it’s an incredible thing”.

We want to explain that reforming punishment is good for offenders, of course, but the reason that it is good is because it reinforces our community values, like work and individual dignity.

Political differences

The United States, then, is an example of how criminal justice reform can become a mainstream policy, adopted by politicians and voters across the spectrum. Indeed, reform has largely been a success story for the conservative side of American politics. That is why the authors David Dagan and Stephen Teles in their book, Prison break: why conservatives turned against mass incarceration identify the role that well-regarded conservatives played in “vouching” for criminal justice reform. Conservative voters were the most attached to tough-on-crime policy and so reform needed to be targeted to them.

But there are some key differences between our country and theirs, and this might make you think that here, there is less need for the centre-right to be involved. You might even think that incremental reform is a roadblock to the structural reforms that you prefer – like, say, prison abolition. I think this is a mistake.

The most obvious difference between Australia and the United States is the scale of the phenomenon of mass incarceration. In 2016, the US incarceration rate was 860 per 100,000 adults, which is a 20-year low and yet still almost four times Australia’s current rate. Australian jurisdictions then, with arguably one or two exceptions, do not face the same pressure to reform. On this view, there is not enough waste in the current system to make the value-for-money argument attractive to conservatives here. This has been put to me in a number of meetings with MPs in different states.

While it is true that the United States has a much bigger system, and that many of the reforms American states are pursuing are things like diversion for drug offences, which we already do, the difference is perhaps not as great as critics make out. The US example shows how quickly incarceration can increase – according to Pew, the rate more than tripled between 1980 and its peak in 2008. We already have states that are at that 1980 level. Moreover, Indigenous Australians are the most incarcerated people in the developed world.

There are also political differences between the two countries. Many American states that have implemented some reform, like Texas, are under effective one-party rule. This means that the party can lose a few members on bills and still prevail. It also means that policies with long lead times for pay-offs, like justice reinvestment, are more viable. When we brought an American expert out to introduce the issue to MPs around the country in 2016, he found that he had to change his messaging around justice reinvestment as it was simply being dismissed out of hand.

By contrast, Australian state elections are heavily contested. We also have compulsory voting, which might be thought to mean that politicians are more able to pitch to the centre without having to be careful about conservative sensitivities.

This too is mistaken. In fact, the contested nature of our politics makes conservative involvement (and so the dampening of revolutionary ambition) even more important. Any reform push, in criminal justice or elsewhere, creates the opportunity for a political actor to double down on the status quo. In this case, both sides of politics have the temptation to pursue, in the words of former South Australian Labor treasurer Kevin Foley, “rack em, pack em, and stack em”. This is especially true given the narrow range of issues that state politics involves – any advantage on law and order will be exploited because differentiating one political product from the other is not always easy at the state level.

The correct framing of reform will box out this tactic by – rightly, in my view – communicating that the true tough-on-crime position is to take steps to have less crime. Rather than fighting against the retributive system, we should aim for policy that brings together rehabilitation and retribution. This in turn enables the conversation about value-for-money because over-punishment is self-defeating – taxpayers think they are buying a corrections system and safe streets, but instead they are buying a system that unnecessarily damages some people and makes crime more likely.

Final thoughts

These messages are starting to get traction. And there is renewed interest among governments in questions like, in particular, how to reduce reoffending and how to reduce the remand population, both of which are chances to talk about community safety and second chances.

These messages are how we turn facts into problems, and problems into opportunities. I think it is a mistake to allow criminal justice reform to spiral into a larger discussion about social justice. When, for example, we talk about Indigenous incarceration, often it is acknowledged that some of the factors to do with that problem are upstream of the criminal justice system, so that the conversation is not really about law and order and justice and punishment, but about more complex sociological issues that the criminal justice system cannot solve. Moreover, the law and order component of that problem is still readily conceivable as a community safety issue – safety is a universal basic need and higher victimisation rates among Indigenous Australians are a powerful reminder of this fact. Given how hotly-contested is our politics, the better calculation is to meet voters and their representatives where they are. The debate should be about means, not ends. We all want the same thing, which is a safe and harmonious society, we just need to agree on how to get it.