What is justice reinvestment?

4.7        A justice reinvestment approach to criminal justice reform involves a redirection of money from prisons to fund and rebuild human resources and physical infrastructure in areas most affected by high levels of incarceration.[3] Justice reinvestment originated in the United States (US) as a response to an exponential growth in the rate of imprisonment since the 1970s.[4]

4.8        Justice reinvestment suggests that prisons are an investment failure, ‘destabilising communities along with the individuals whom they fail to train, treat, or rehabilitate (and whose mental health and substance abuse are often exacerbated by the experience of imprisonment)’.[5] Instead, to address the causes of offending, money is better spent—and indeed savings can be made—by reinvesting in places where there are a high concentration of offenders. Justice reinvestment, its proponents contend, can serve both the ends of economic efficiency and social justice: ‘the most efficient way to a just society is to reduce criminality at source through investment in social justice’.[6]

The costs of incarceration

4.9        Justice reinvestment has been supported on economic grounds, in that it provides a means for redirecting public money from imprisonment to strengthening individual and community capacity. Incarceration is expensive: the annual cost per prisoner of providing corrective services in 2015–16 was $103,295, and it has been estimated that the total justice system costs of Aboriginal and Torres Strait Islander incarceration in 2016 were $3.9 billion.[7]

4.10     When the costs of Aboriginal and Torres Strait Islander incarceration are broadened beyond those directly related to the justice system to include other economic costs, such as loss of productive output during incarceration, the cost of crime incurred by victims, the cost of increased mortality, excess burden of tax, and welfare costs, the cost rises to $7.9 billion.[8]

4.11     As well as the cost of imprisonment to the State, imprisonment has immediate and ongoing financial and social costs for both the imprisoned person and their family:

Many people lose accommodation when imprisoned and become homeless once released from custody; these new problems lead to an increased likelihood of re-offending. Imprisonment of a parent can result in children having to relocate or having to enter into the care of the state—research confirms that these children are much less likely to complete secondary school and are more likely to become homeless, unemployed and come in contact with the criminal justice system. The social cost of imprisonment can also be seen through the inability of prison to reform or rehabilitate and in its self-reproductive nature: in NSW more than half of current prisoners have previously been imprisoned.[9]

4.12     Incarceration can also have a broader social cost, particularly when concentrated in a particular community. Commenting on the causes and consequences of the growth of incarceration in the US, the National Research Council of the National Academies noted that

because of the extreme social concentration of incarceration, the most important effects may be systemic, for groups and communities. If African American male high school dropouts have a high expectation of going to prison at some point in their lives, that expectation may change the behavior of all the men in the group, not just those actually going to prison. If a third of the young men in a poor community are incarcerated, skewing gender balance and disrupting family relations, incarceration may have community-level effects that shape the social context of community residents, even if their families are not involved in the criminal justice system.[10]

4.13     In the Australian context, research into impacts of incarceration on Indigenous Australians from remote communities has suggested that significant proportions of the population, particularly those aged 20–39, may be missing from these communities through incarceration, and that this contributes to ‘intergenerational demographic, social and economic dysfunction’.[11]

4.14     Submissions to this Inquiry also pointed out the broader, community-level costs of incarceration. Jesuit Social Services noted that the

social fabric of communities can play an influential role in buffering the worst effects of disadvantage, with community factors being shown to influence mental health levels in children, education and levels of safety and crime. The impacts of trauma (including neglect and exposure to violence) on children are severe and have lasting consequences, with altered brain growth and psychological functioning shown to be linked to trauma. There are longterm social costs associated with this, including mental health issues and other chronic health problems, criminality, homelessness, substance misuse and abuse and intergenerational transmission of abuse. It is estimated that child abuse and neglect in Australia cost almost $5 billion per year, including interventions and the associated longterm human and social costs.[12]

Approaches to reinvestment—criminal or social justice?

4.15     Early proponents of justice reinvestment emphasised that the ‘reinvestment’ envisaged was in communities affected by incarceration. In this analysis, justice reinvestment could be seen as ‘preventative financing, through which policymakers shift funds away from dealing with problems “downstream” (policing, prisons) and toward tackling them “upstream” (family breakdown, poverty, mental illness, drug and alcohol dependency)’.[13] The Commission on English Prisons Today put it more starkly, arguing that ‘Justice Reinvestment is not about alternatives within the criminal justice process, it is about alternatives outside of it’.[14]

4.16     The focus on upstream, or preventative, approaches is linked with an emphasis on intervention at a local level: ‘a place-based community-focused justice reinvestment approach prioritises the importance of front-end holistic support which has the capacity to prevent criminalisation in the first instance’.[15]

4.17     However, as justice reinvestment has been implemented, especially in the US, it has largely involved redesign and reinvestment within the criminal justice system:

Increasingly the aspirations of JR programmes are limited to reducing the use of incarceration through analysis of demand for prison places and identifying opportunities at different points in the system to divert offenders from custody and/or reduce the likelihood of re-offending on release. This model of JR—which we may describe as a criminal justice system redesign approach—places little attention on what is happening beyond the criminal justice system or on preventing criminality in the first place.[16]

4.18     Thus, it is possible to contrast two different forms of justice reinvestment: a social justice and a criminal justice approach. There is not necessarily mutual exclusivity between the aims of social justice and criminal justice reforms: ‘[i]n fact, what they represent is JR as a continuum, where the approach that is adopted by local, regional or national agencies may be shaped by dynamic factors—factors which can and do change over time’.[17]

4.19     On this view, justice reinvestment measures may intervene at all points of the criminal justice spectrum—to prevent people entering into the criminal justice system, as well as diversion from custody and in lowering the numbers of people returning to custody through breaching parole or reoffending.[18] Many of the recommendations in this Report, in this sense, are consistent with a justice reinvestment approach to the design of the criminal justice system.

4.20     A number of submissions made this observation. Jesuit Social Services provides a useful summation:

Reforming laws and legal frameworks could help to drive justice reinvestment initiatives. Reforming laws regarding sentencing and bail, the conditions on which prisoners leave prison, and parole and probation supervision could potentially facilitate a decline in Aboriginal and Torres Strait Islander peoples imprisonment rates as part of a justice reinvestment approach. There may be benefit in legislating for diversion and sentencing options that allow for communitybased alternatives to detention, so that justice reinvestment programs are utilised. [19]

4.21     Some considered that community-based sentencing was a representation of justice reinvestment.[20] The New South Wales (NSW) Council of Social Service called for ‘more investment in community-based and Aboriginal-led assistance, diversion, rehabilitation, and post-release programs’.[21]

4.22     Reforms relating to fines and driving offences were also considered to be a form of justice reinvestment.[22] Victoria Legal Aid argued that work and development programs that allow an offender to ‘work off’ outstanding infringement fines were justice reinvestment in action, ‘directing resources away from punishing individuals for outstanding fines and into addressing the issues which saw the individual incur the fine’.[23] A number of submissions also called for reforms to mandatory sentencing, arguing that current regimes inhibit the success of efforts to reduce spending on incarceration.[24] Submissions also considered justice targets to be important to promoting the adoption of justice reinvestment.[25]

4.23     Some have argued that, while criminal justice system redesign may be a pragmatic response to high rates of incarceration, ‘in not extending their reach beyond the criminal justice system these programs may miss the opportunity to prevent criminality in the first place’.[26] Equally, in this Inquiry, many submissions emphasised that justice reinvestment should focus on the drivers of incarceration for Aboriginal and Torres Strait Islander peoples that extend beyond the criminal justice system.[27] For example, the Human Rights Law Centre submitted that ‘[a] justice reinvestment approach to criminal justice in Australia would provide a valuable framework to prevent crime and promote community safety, reduce imprisonment rates and deliver associated social and economic benefits for the community’.[28] The National Association of Community Legal Centres submitted:

We support a justice reinvestment approach in Australia and consider that it is a crucial element of addressing the high levels of imprisonment of Aboriginal and Torres Strait Islander peoples. One of the key elements in any solution focussed on addressing over-representation in the criminal justice system is to address disadvantage, including through approaches such as justice reinvestment which seek to divert funding from prisons to community programs.[29]

4.24     The Aboriginal Legal Service of Western Australia submitted that ‘investment in early intervention, prevention and rehabilitation is far more effective for long-term community safety and far cheaper than continuing to imprison the most marginalised and disadvantaged members of the community’.[30] The Commissioner for Children and Young People Western Australia argued that, for Aboriginal young people in particular, ‘[w]hat is clear from the work of my office over the last decade is that programs that divert young people away from the justice system and address underlying causes of offending are crucial’.[31]

[3]             Susan B Tucker and Eric Cadora, ‘Justice Reinvestment’ (Ideas for an Open Society 3(3), Open Society Institute, 2003) 2.

[4]             In 1975, the imprisonment rate in the US was 150 per 100,000. In 2013 it was 478 per 100,000: David Brown et al, Justice Reinvestment: Winding Back Imprisonment (Palgrave Macmillan, 2016) 21.

[5]             Tucker and Cadora, above n 3, 3.

[6]             Chris Fox, Kevin Albertson and Kevin Wong, Justice Reinvestment: Can the Criminal Justice System Deliver More for Less? (Routledge, 2013) 7.

[7]             Productivity Commission, above n 1, 8.19; PwC’s Indigenous Consulting, Indigenous Incarceration: Unlock the Facts (2017) 27.

[8]             PwC’s Indigenous Consulting, Indigenous Incarceration: Unlock the Facts (2017) 25–7.

[9]             Chris Cunneen et al, Penal Culture and Hyperincarceration: The Revival of the Prison (Routledge, 2016) 16. See also William R Wood, ‘Justice Reinvestment in Australia’ (2014) 9(1) Victims & Offenders 100, 108.

[10]           National Research Council of the National Academies, The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014) 355–6.

[11]           Andrew Taylor, Hannah Payer and Tony Barnes, ‘The Missing Mobile: Impacts from the Incarceration of Indigenous Australians from Remote Communities’ [2017] Applied Mobilities 1, 1.

[12]           Jesuit Social Services, Submission 100. See also, eg, National Congress of Australia’s First Peoples, Submission 73.

[13]           Tess Lanning, Ian Loader and Rick Muir, ‘Redesigning Justice: Reducing Crime through Justice’ (Institute of Public Policy Research, 2011) 6.

[14]           Commission on English Prisons Today, Do Better, Do Less: The Report of the Commission on English Prisons Today (The Howard League for Penal Reform, 2009) 49.

[15]           David Brown et al, above n 4, 119.

[16]           Chris Fox, Kevin Albertson and Kevin Wong, ‘Justice Reinvestment and Its Potential Contribution to Criminal Justice Reform’ (2013) 207 Prison Service Journal 38, 38.

[17]           Ibid 38–9.

[18]           Melanie Schwartz, ‘Building Communities, Not Prisons: Justice Reinvestment and Indigenous over-Representation’ (2010) 14(1) Australian Indigenous Law Review 2, 2.

[19]           Jesuit Social Services, Submission 100. See also, eg, Legal Aid NSW, Submission 101; Just Reinvest NSW, Submission 82; Criminal Lawyers Association of the Northern Territory, Submission 75; Victorian Aboriginal Legal Service, Submission 39.

[20]           Recommendations about community-based sentencing are made in ch 7.

[21]           NSW Council of Social Service, Submission 45. See also Criminal Lawyers Association of the Northern Territory, Submission 75.

[22]           Recommendations about fines and driver licences are made in ch 12.

[23]           Victoria Legal Aid, Submission 56. See also North Australian Aboriginal Justice Agency, Submission 113.

[24]           Queensland Law Society, Submission 86; Northern Territory Legal Aid Commission, Submission 46; Kingsford Legal Centre, Submission 19. See further ch 8.

[25]           See, eg, Law Council of Australia, Submission 108; Aboriginal Legal Service of Western Australia, Submission 74. In ch 16, the ALRC recommends that criminal justice targets be developed.

[26]           Kevin Wong, Chris Fox and Kevin Albertson, ‘Justice Reinvestment in an “Age of Austerity”: Developments in the United Kingdom’ (2014) 9(1) Victims & Offenders 76, 90.

[27]           See, eg, Jesuit Social Services, Submission 100; Community Legal Centres NSW  and the Community Legal Centres NSW Aboriginal Advisory Group, Submission 95; National Association of Community Legal Centres, Submission 94; ANTaR Queensland Management Committee, Submission 55; Human Rights Law Centre, Submission 68.

[28]           Human Rights Law Centre, Submission 68.

[29]           National Association of Community Legal Centres, Submission 94.

[30]           Aboriginal Legal Service of Western Australia, Submission 74.

[31]           Commissioner for Children and Young People Western Australia, Submission 16.