Crime & Punishment

1. The Classical Criminal Justice Model: Punishing Bad Choices

We bay for jail in cases like this one. There's a pattern to it – first, we convince ourselves that the offender is bad, a villain, and then we want them to suffer as much as possible.

Flawed assumptions. The classical criminal justice model operates on the assumption that individuals make free choices to commit crimes and should be punished accordingly. This approach oversimplifies complex human behavior and ignores the social, economic, and psychological factors that contribute to criminal activity.

Limitations of the model. By focusing solely on punishment, the system fails to address the root causes of crime or provide effective rehabilitation. It often leads to a cycle of reoffending, as punished individuals return to society without the tools or support needed to make better choices.

Unintended consequences. The emphasis on punishment can result in:

• Overcrowded prisons
• Increased recidivism rates
• Disproportionate impact on disadvantaged communities
• Neglect of victims' needs for healing and closure

2. Disadvantage and Crime: A Complex Relationship

Drug-dependent. Under-educated. On welfare. Indigenous. Young. Homeless. Mentally unwell and/or brain-injured. As well as being descriptors of typical offenders, these are typical descriptors of social disadvantage in early 21st-century Australia.

Markers of disadvantage. Criminal behavior is often closely linked to various forms of social disadvantage. Common factors include:

• Poverty and economic instability
• Lack of education and job opportunities
• Mental health issues and substance abuse
• Cultural marginalization and discrimination

Cyclical nature. Disadvantage can create a self-perpetuating cycle of crime and punishment. Individuals born into disadvantaged circumstances are more likely to engage in criminal behavior, which further limits their opportunities and exacerbates their disadvantage.

Need for holistic approach. Addressing crime effectively requires understanding and tackling the underlying social issues that contribute to criminal behavior. This includes investing in:

• Education and job training programs
• Mental health and addiction treatment services
• Community support systems
• Cultural sensitivity and inclusion initiatives

3. The Failure of Imprisonment as Deterrence and Rehabilitation

So prison does work as containment, for people who are too dangerous to live in society. These are closer to the villains of crime fiction, whose background and life history, even if it is marked by disadvantage, is really irrelevant to the need to incapacitate them from doing more damage.

Limited effectiveness. While imprisonment may work as containment for the most dangerous offenders, it largely fails as a deterrent or rehabilitation tool for the majority of criminals.

Negative consequences. Prison often exacerbates existing problems and creates new ones:

• Exposure to more seasoned criminals
• Disruption of family and community ties
• Difficulty finding employment upon release
• Increased likelihood of reoffending

Cost-ineffective. The high cost of imprisonment – both financially and socially – outweighs its benefits in most cases. Resources spent on incarceration could be more effectively used for prevention and rehabilitation programs.

4. Victims' Needs Neglected in the Current System

Is it really 'taking victims seriously' to exclude them from any meaningful participation in the criminal justice process? Is it taking them seriously to allow them only to make complainant and impact statements and be cross-examined by defence barristers, and then to urge them to get angry and stay angry with the weak judges who aren't locking up more villains and throwing away the key?

Limited involvement. The current system often relegates victims to the role of witnesses, providing little opportunity for meaningful participation in the justice process.

Unmet needs. Victims' needs for healing, closure, and understanding are often overlooked. The focus on punishing offenders can leave victims feeling unsupported and frustrated.

Alternative approaches. Restorative justice and victim-offender mediation programs can provide:

• Opportunities for victims to confront offenders
• Chances for offenders to take responsibility and make amends
• Healing and closure for both parties
• A more satisfying sense of justice for victims

5. Restorative Justice: An Alternative Approach

Williamson draws his understanding of human psychology in part from the work of US philosopher and psychologist Silvan S. Tomkins. According to Williamson, Tomkins reasoned that 'emotions are absolutely central to our existence. He re-read the insightful pioneering work on the emotions by Charles Darwin and realised that our basic affects – anger, fear, surprise, enjoyment/joy, distress/anguish, shame/guilt, disgust, contempt and interest/ excitement – were an autonomous physiological response system common to all humankind'.

Emotional transformation. Restorative justice approaches, such as community conferencing, aim to address the emotional needs of both victims and offenders.

Key elements of restorative justice:

• Face-to-face meetings between victims and offenders
• Facilitated dialogue to explore the impact of the crime
• Opportunities for offenders to take responsibility and make amends
• Community involvement in the resolution process

Benefits:

• Higher satisfaction rates for victims
• Reduced recidivism among offenders
• Improved community relations
• More meaningful resolutions than traditional punitive measures

6. Therapeutic Jurisprudence: Addressing Root Causes

Therapeutic jurisprudence can be seen in the design of a number of voluntary or court-ordered pre-sentence programs available through some courts in Western Australia (since 2003), Victoria (2004), South Australia (2006) and New South Wales (2009). The aim is to have offenders undergo intensive treatment and/or counselling for underlying drivers of criminal behaviour – drug and alcohol use, mental illness, homelessness – for months or even years before the court sentences them.

Problem-solving approach. Therapeutic jurisprudence focuses on addressing the underlying causes of criminal behavior, such as mental illness, substance abuse, or social disadvantage.

Key features:

• Specialized courts (e.g., drug courts, mental health courts)
• Intensive treatment and support programs
• Collaboration between legal and health professionals
• Emphasis on rehabilitation over punishment

Positive outcomes:

• Reduced recidivism rates
• Improved mental health and substance abuse recovery
• Cost savings compared to traditional incarceration
• Better integration of offenders back into society

7. Justice Reinvestment: A Cost-Effective Solution

'Don't build new prisons,' the chair of the Texas House of Representatives' Corrections Committee, Jerry Madden, recalled being told in 2005 by the speaker of the house. 'They cost too much.'

Shifting resources. Justice reinvestment involves redirecting funds from prisons and punishment towards community-based prevention and rehabilitation programs.

Key strategies:

• Investing in education and job training
• Expanding mental health and addiction treatment services
• Supporting at-risk youth and families
• Improving community supervision and reentry programs

Benefits:

• Reduced incarceration rates
• Lower recidivism
• Cost savings for taxpayers
• Stronger, healthier communities

8. Decriminalization: Rethinking Our Approach to Drug Offenses

In 2001 Portugal went out in front of the rest of the world and dropped out of the US-led 'war on drugs'. The possession of illicit drugs such as marijuana, cocaine or heroin is now classed in Portugal as a misdemeanour, which puts the penalties in the vicinity of a parking ticket.

Shift in approach. Decriminalization involves treating drug use as a public health issue rather than a criminal one, focusing on harm reduction and treatment instead of punishment.

Key elements:

• Reduced or eliminated criminal penalties for drug possession
• Increased access to treatment and harm reduction services
• Reallocation of resources from law enforcement to public health

Outcomes in Portugal:

• Decreased drug use among teenagers
• Reduced HIV infection rates among drug users
• More drug users accessing rehabilitation services
• No significant increase in overall drug use

9. The Politics of "Tough on Crime" and Media Influence

No doubt appropriately, the system emphasises agency as a way of 'training' Angus to make better decisions. There are ways of doing this – one is the system of credits used in the Victorian Drug Court, described in Chapter 5. But if we want to solve the problem of Angus's offending, we need to ensure that we're not simply extending the logic of punishment and individual choice.

Political motivations. "Tough on crime" policies are often driven by political interests and media sensationalism rather than evidence-based approaches to reducing crime.

Media influence:

• Sensationalized reporting of crime
• Emphasis on punishment over rehabilitation
• Creation of moral panics and fear

Consequences:

• Increased incarceration rates
• Neglect of more effective, evidence-based approaches
• Perpetuation of cycle of disadvantage and crime

10. Rethinking Punishment: Towards a Problem-Solving Approach

It's worth asking some radical, even fundamental questions about punishment. If we were truly prepared to accept what the evidence tells us about punishment, imprisonment and its costs, recidivism and what drives people to commit criminal offences, and if we truly committed ourselves to solving the problem of criminality, then we might ask the question: in cases where the offending is clearly a symptom of some deeper driver of criminal behaviour, should we even 'punish' at all?

Paradigm shift. Moving beyond punishment to focus on addressing the root causes of criminal behavior and finding effective solutions.

Key elements of a problem-solving approach:

• Emphasis on rehabilitation and reintegration
• Addressing underlying social and economic issues
• Involvement of community in justice processes
• Use of evidence-based interventions

Potential benefits:

• Reduced recidivism rates
• Lower incarceration costs
• Improved community safety
• More effective resolution of conflicts
• Better outcomes for both offenders and victims

Last updated: March 11, 2025