Home Truths about Home Detention
| Author | Mirko Bagaric |
| Date | 01 October 2002 |
| DOI | 10.1177/002201830206600508 |
| Published date | 01 October 2002 |
| Subject Matter | Article |
Home
Truths
About
Home
Detention
Dr Mirko Bagaric*
Abstract
The Victorian Parliament has recently introduced a Bill
which
implements
home
detention
as a sentencing option. Home
detention
is an
intuitively appealing reform. The logic
behind
the
proposal seems obvious.
Prisons are expensive to run. There are too
many
offenders in prison. So
let's take
the
cost
out
of prison by
turning
the
homes
of offenders into
prisons: classic, user-pays, cost-shifting economics. The level of superficial
appeal of
the
argument
in favour of
home
detention
is
matched
only by
the
depth of
the
fallacies
underpinning
some of
the
fundamental
premises.
The most basic of which is
the
assumption
that
offenders
who
are
candi-
dates for
the
new
sanction should be in
detention
(of
any
kind) in
the
first
place. Further,
the
narrow
objective of reducing
imprisonment
is mis-
guided. It should
not
be elevated to a cardinal sentencing
objective-
otherwise total success could be achieved by simply opening
the
prison
gates. There are also
other
concerns
about
the appropriateness of
home
detention. The degree of pain it inflicts in
many
cases is questionable
and
it may also violate
the
principle
that
punishment
should
not
be inflicted
on
the
innocent. After examining
the
arguments
for
and
against
home
detention, this article suggests the approach
that
should be
adopted
to
achieve enlightened
and
meaningful sentencing reform.
The Victorian Parliament has recently introduced a Bill (the Corrections
and
Sentencing Acts (Home Detention) Bill 200 1, hereafter
'the
Bill') to
implement
home
detention as a sentencing option. Home detention is
an intuitively appealing reform. The logic
behind
the
proposal seems
obvious. Prisons are expensive to run. There are too
many
offenders in
prison. So let's take the cost
out
of prison by turning
the
homes
of
offenders into prisons. Classic, user-pays, cost-shifting economics. This
article examines more closely the desirability of
home
detention as a
sentencing option. More broadly, it also considers
the
approach
that
should be adopted in order to achieve enlightened
and
meaningful
sentencing reform. Thus, while
the
proposed reforms in Victoria were
the catalyst for this article,
the
issues canvassed relate to sentencing
policy in general.
The
next
part of the article puts
the
proposed changes into context, by
briefly discussing
the
social, legal
and
political influences
that
precipi-
tated them. This is followed by an analysis of
the
arguments for
and
against
home
detention. I
then
look more globally at
the
manner
in
which sentencing reform should occur
and
consider
home
detention in
light of this.
•Associate Professor, School of Law, Deakin University.
425
The Journal
of
Criminal Law
The
impetus
towards
home
detention
(a)
Harsher
sentences
Sentencing law in most Australian jurisdictions (and
many
other
West-
ern
countries, such as
the
UK
and
the
USA)
over
the
past decade or so
has
undergone
significant change,
with
the
common
thread
being to
impose heavier penalties for
many
offences by using several different
techniques (including widespread
mandatory
sentencing regimes),
with
the
most visible result being asignificant increase in
the
prison
population.
The most
transparent
and
obvious recent change to
the
Victorian
sentencing system has
been
an increase in
the
maximum
penalties of
offences. Most indictable offences
now
carry aheavier
maximum
pen-
alty
than
they
did a decade ago. The Sentencing Act 1991
(Vic)
increased
the
maximum
penalty for
many
indictable offences, effective from 22
April 1992. This was followed by
another
penalty hike for most indict-
able offences effective from 1 September 1997. 1For example, in
the
space of
about
five years,
the
maximum
penalty for culpable driving has
increased from 7 years to 15 years
and
then
20 years; rape has increased
from 10 years to 25 years;
manslaughter
has changed from 15 to 20
years; handling stolen goods has changed from 14 years to 10 years
and
is
now
back up to 15 years;
and
intentionally causing serious injury from
15 to 20 years.
It
is
noteworthy
that
the
only discernible impetus,
and
apparent
basis, for
the
last lot of increases was
the
result of a 'sentencing
survey' published in
the
Sun
newspaper
(sanctioned by
the
govern-
ment)
which called for
harsher
sentences.'
Indefinite sentences have also, relatively, recently become afeature of
the
Victorian sentencing landscape.' A key feature of
the
indefinite
sentencing provisions is
that
an indefinite sentence
may
only be im-
posed
where
the
court is 'satisfied, to a high degree of probability,
that
the
offender is a
serious
danger
to
the
community'
(emphasis added)."
Current
empirical evidence reveals
that
there is no reliable
method
for predicting dangerousness
and
that
there is a
tendency
greatly to
over-exaggerate
the
probability of future dangerous behaviour. For
example, studies have
shown
that psychiatric predictions concerning
dangerousness are wrong most of
the
time.5Thus there is no reason to
believe
that
acourt which undertakes an inquiry into
the
dangerousness
I This last
round
of changes
were
pursuant
to
the
Sentencing
and
Other
Acts
(Amendment)
Act 1997 (Vic).
2 The
survey
was in the Herald Sun (Melbourne). 'Crime &
Punishment
Insight: The
Sentencing', 29
July
1996. The results revealed
that
respondents
wanted
significantly
tougher
sentences
to be imposed for
numerous
offences: Herald
Sun
(Melbourne),
'Crime
and
Punishment:
Your Verdict', 13
September
1996, I. 4,
12-15.
3
Sentencing
Act 1991 (Vic), s. 18A.
4 Ibid. s. 18B(I).
5 For example, see J.
Monahan,
'The Prediction of Violent Behaviour: Toward a
Second
Generation
of Theory and Policy' (1984) 141( I) American Journal of
Psychiatry 10; J. Floud,
'Dangerousness
and Criminal Justice: (1982) 22 British
Journal
of
Criminology 213; S. R. Brody
and
R. Tarling, Taking Offenders Out
of
Circulation, Research Study No. 64 (HMSO: London, 1981).
426
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