Is tougher sentencing and bail policy the cause of rising imprisonment rates? A NSW case study

DOI10.1177/0004865820944975
Article
Is tougher sentencing and
bail policy the cause of rising
imprisonment rates?
A NSW case study
Don Weatherburn
National Drug and Alcohol Research Centre, University of New
South Wales, Australia
Abstract
Between 2000 and 2019, the number of inmates in Australian prisons grew from 21,714 in
2000 to 43,028 in 2019, an increase of 98%, or in per capita terms, 48%. Much of this increase
occurred between 2012 and 2019. In New South Wales (NSW), for example, the prison
population rose by 17% in the 11 years between 2000 and 2011, but then grew a further 39%
in the eight years between 2012 and 2019. A similar acceleration in inmate numbers
occurred in other States and Territories after 2011. In this article, we examine the contri-
bution of sentencing, bail, policing policy and crime to the rapid rise in NSW imprisonment
rates. We cite evidence showing that the likelihood of bail refusal has changed very little over
the period when imprisonment rates rose, we find no evidence of a significant change in the
length of sentences and no evidence of an increase in the likelihood of a prison sentence once
changes in sentence-relevant factors are taken into account. Most of the increase in impris-
onment rates appears to be due to changes in policing policy and (to a lesser extent) certain
types of crime.
Keywords
Bail, breach of order, focussed deterrence, imprisonment, policing policy, sentencing
Date received: 20 February 2020; accepted: 6 July 2020
Corresponding author:
Don Weatherburn, National Drug and Alcohol Research Centre, University of New South Wales, Sydney, New
South Wales, Australia.
Email: d.weatherburn@unsw.edu.au
Australian & New Zealand Journal of
Criminology
2020, Vol. 53(4) 563–584
!The Author(s) 2020
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DOI: 10.1177/0004865820944975
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Introduction
Between 2000 and 2019, the number of inmates in Australian prisons more than dou-
bled, from 21,714 in 2000 to 43,028 in 2019 – in per capita terms an increase of about
98% (Australian Bureau of Statistics, 2019). Much of this increase occurred between
2012 and 2019. In New South Wales (NSW), for example, the prison population rose by
17% in the 11 years between 2000 and 2011, but then grew a further 39% in the eight
years between 2012 and 2019. A similar acceleration in inmate numbers occurred in
other States and Territories after 2011. Figure 1 compares the average annual increase in
inmate numbers between 2000 and 2011 with the average annual increase between 2012
and 2019, for each state and territory. The changed rate of growth between the two
periods is dramatic in all jurisdictions with the exception of South Australia and the
Northern Territory. Even in these jurisdictions, however, the increase in inmate number
growth after 2011 is substantial.
The prison population grew so quickly in NSW it outstripped the supply of prison
beds, leading to problems of prison overcrowding. Commenting on the situation in
April 2015, the NSW Inspector of Custodial Services claimed ‘Corrective Services
[NSW] is operating under a combination of conditions which have the potential to
create a dysfunctional, if not dangerous, custodial environment’ (Paget, 2015). The
NSW Auditor General in a later report highlighted the known risks associated with
prison overcrowding, including increased violence, suicide and self-harm, reduced time
out of cells and inability to achieve full participation in prison rehabilitation pro-
grammes (NSW Audit Office, 2019). The State Government response to the crisis was
to start building so-called ‘pop-up’ prisons, essentially prison dormitories. It had little
choice. Missing from the official response to the problem, however, was any public
explanation or enquiry into how such a rapid growth in prison numbers came about.
In an earlier article in this journal, Weatherburn (2018) analysed and highlighted the
role of policing policy in shaping the growth in imprisonment rates across Australia
between 2001 and 2019. In this article, we take an in-depth look at the role that crime,
policing policy and penal policy have played in the rapid growth in imprisonment in
NSW since 2011. We focus on NSW, not because it is atypical, but because it is the only
jurisdiction that collects and makes publicly available detailed data on bail and sentenc-
ing, as well as on the demographic characteristics and prior criminal history of defend-
ants coming before the criminal courts. This data allows us to take a detailed look at the
role of sentencing policy, an exercise that would be impossible to conduct across
Australia as a whole, given the lack of appropriate national data on crime, courts
and corrections. The fact that the analysis is focussed on NSW should not limit its
relevance to readers in other jurisdictions or countries. Many of the factors we identify
as important in NSW are likely to have played some role in shaping imprisonment
elsewhere in Australia. At the very least, an account of what happened in NSW
might stimulate interest in conducting similar research in other jurisdictions. It should
certainly serve as a warning.
Because the prison population is made up of remand and sentenced prisoners it is
natural to assume that changes to bail and sentencing law are responsible for any
growth in inmate numbers. Bail and sentencing policy, however, are not the only factors
that determine the size of a State or Territory’s prison population. Crime and policing
564 Australian & New Zealand Journal of Criminology 53(4)

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