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

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 contribution 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 imprisonment 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

Introduction

Between 2000 and 2019, the number of inmates in Australian prisons more than doubled, 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.

Figure 1.

Average annual percentage change in prison population by jurisdiction: 2000–2011 and 2012–2019. Source: Australian Bureau of Statistics (2019).

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 programmes (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 sentencing, as well as on the demographic characteristics and prior criminal history of defendants 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 policy also have a powerful influence on the prison population via their effect on number of people arrested and the offences for which they are arrested. In a study of the long-term effects of arrest on imprisonment in NSW, for example, Wan (2011) found that every 10% increase in male arrests in NSW results in a 4.0% increase in the number of male full-time prisoners while the same size increase in female arrests results in a 3.7% increase in full-time female prisoners. These are sizeable effects given (as we shall see) that arrest rates can rise in just a few years by more than 30%.

The next section of the article deals very briefly with the dynamics of imprisonment, that is, with the way in which various factors combine to shape the size of a prison population. The third and fourth sections deal, respectively with the role of changes in bail and sentencing. The final section discusses the findings and their implications.

The dynamics of imprisonment

The size of the remand and sentenced prisoner populations depends, in the first instance, on the rate of arrival and length of stay in each. The rate of arrival is influenced by levels of crime, policing and penal policy. Levels of crime influence the rate of arrival in prison (whether on remand or as a sentenced prisoner) because, if the probability of arrest, the probability of conviction given arrest, and the probability of imprisonment given conviction, all remain constant, a rise in crime will automatically generate an increase in prison receptions. Changes in policing policy influence the rate of arrival because, like crime, they can influence rates of arrest. Penal policy can influence the rate of arrival in prison by changing the proportion of convicted offenders refused bail or the proportion who receive a prison sentence. It can also influence prison receptions in more subtle ways; as for example, when tougher parole policies increase the rate of return to prison.

Multiple factors also influence the time spent in custody (or, equivalently, rate of departure from custody). An increase in serious crime will result in longer stays in prison because more serious offences attract longer prison terms, as well as a higher risk of imprisonment. Penal policy can influence imprisonment rates through its effect on the length of prison sentences, the proportion of offenders refused parole at the point where they first become eligible and through the proportion of offenders whose parole is revoked. Crime and policing policy can influence the length of stay in custody if the result of either leads to court congestion. The resulting delays in the processing of cases where the accused is held in custody on remand can lead to growth in the size of the remand population.

The remand population

Changes in the number proceeded against

Figure 2 shows the trends in remand (unsentenced) and sentenced prisoner populations in NSW since 2011. The sentenced and remand prisoner populations have both grown but the growth in remand numbers is somewhat larger; accounting for 56% of the total growth in inmate numbers, compared with 44% for sentenced prisoners. In light of our earlier discussion on the dynamics of imprisonment, there are three possible explanations for the growth in the size of the NSW remand population. The first is a growth in arrests; the second, a growth in the percentage of those arrested who are refused bail (either at first instance or after allegedly breaching the conditions of bail); and the third, a growth in the length of stay in remand.

Figure 2.

Remand and sentenced prisoner populations NSW: 2011 to 2019. Source: Australian Bureau of Statistics (2019).

Figure 3 shows the growth in persons of interest (POIs) proceeded against to court in NSW between 2011 and 2019. After a small dip between 2011 and 2012, the number of POIs proceeded against to court rose rapidly, increasing by 31% between 2012 and 2019, from 128,556 to 167,220. Even if the bail refusal rate had remained constant, this rapid surge in arrests would have increased the number being held on remand.

Figure 3.

POIs proceeded against to court by year NSW: 2011 to 2019.

Changes in the likelihood of bail refusal

Changes to the NSW Bail Act in 2014 and 2015 (Judicial Commission of New South Wales, 2020) led many to expect an increase in bail refusal. Yeong and Poynton (2018) examined the changes in bail refusal in their evaluation of amendments to the NSW Bail Act. They estimated that, compared with the period before the bail amendments, the bail refusal rate for a non-minor offence (minor offences were defined as those under the NSW Bail Act where there is a right to bail) rose from its pre-reform average of 15.2% to 16% in the post-reform period (January 2015 to January 2017), an absolute difference of 0.8 percentage points or, in relative terms, an increase of about 5%. On their estimates, the growth in bail refusal rates would have led to an additional 1500 additional cases of bail refusal every year.

This is not a large change when set against the fact that there were 16,453 remand receptions in NSW over the 12 months to December 2019 (NSW Bureau of Crime Statistics and Research, 2020b). Moreover there is reason to believe the true effect of the Bail Act reforms was smaller than the figure of 1500 suggests. That figure is a count of bail refusals not individuals bail refused. Some defendants would have been refused bail on fresh offences while in custody on remand for others. More importantly, many of those refused bail would have subsequently been convicted and given prison sentences backdated to the point where they first entered custody on remand. This is not to say the changes to the NSW Bail Act in 2014 and 2015 have had no effect on prison population growth. The point is rather that any contribution made by those reforms is unlikely to have been more than 5% and may have been less.

Changes in time on remand

If all remand prisoners were convicted and sentenced to prison and if all sentenced prisoners had their sentence adjusted to take time on remand into account, the remand population would make no independent contribution to prison population growth. Neither of these propositions, however, is true. Many defendants spend time on remand before being released to bail. Others leave remand after being acquitted or being given a community-based order. At the time the changes to the NSW Bail Act were being implemented, the influx of new criminal cases was causing considerable congestion in the NSW court system (Weatherburn & Fitzgerald, 2015a). That congestion led to an increase in court delay and, as a result, an increase in the time spent on remand.

Court congestion, however, was not the only factor driving up the length of stay on remand. Between 2010 and 2019, the number of bail breaches recorded by NSW Police rose by 78%, from an average of 2239 a month to 3976 a month (NSW Bureau of Crime Statistics and Research, 2020b). Breaching bail is not a criminal offence in NSW but it does provide grounds for bail revocation. And whereas many of those initially refused bail by police are subsequently granted bail by the courts, those who have their bail revoked for breaching the conditions of bail are generally held in custody until their cases are finalised. The growth in time on remand, therefore, would have been exacerbated by the rising proportion of defendants whose bail had been revoked and who, as a result, were being held on remand until their cases were finalised (see Weatherburn & Fitzgerald, 2015b).

Figure 4 illustrates the point. It shows the average length of stay among persons released from remand after being acquitted of all charges, granted bail, or convicted but released to serve a community-based order. The data have been smoothed¹ to make the trends easier to see. The left hand ordinate shows the average time in custody for those acquitted. The right hand ordinate shows the average time in custody for those released to bail or a community-based order.

Figure 4.

Length of stay by mode of release NSW: February 2013 to December 2019. Source: NSW Bureau of Crime Statistics and Research (2020a).

The average time spent in custody by those acquitted of all charges rose by 143%, from 156 days in the first 12 months of 2013, to 379 days in the 12 months ending December 2019. The average period in custody for those released to bail rose by 19%, from 39 days in the first 12 months of 2013, to 47 days in the 12 months ending December 2019. The average time on remand for those released to a community based order increased by 61%, from 38 days to 62 days. These large increases in the length of stay on remand would have had a significant effect on the size of the NSW remand population.

The sentenced prisoner population

Changes in the likelihood of a prison sentence

We turn our attention, then, to the sentenced prisoner population. Figure 5 shows the proportion of convicted offenders in NSW who were sentenced to a term of imprisonment between 2011 and 2019.

Figure 5.

Percentage of convicted offenders imprisoned NSW: 2011 to 2018. Source: NSW Bureau of Crime Statistics and Research (2020b).

Between 2011 and 2018, the percentage imprisoned rose by 2.15 percentage points or, in relative terms, by 28% (from 7.61% convicted adult offenders to 9.76% of offenders). At face value this would seem like strong evidence that the growth in the NSW prison population is attributable to tougher penal policy. An increase in the proportion of convicted offenders given a prison sentence, however, is not unequivocal evidence of tougher penal policies. The likelihood of a prison sentence depends on characteristics of the offence and offender. An increase in the proportion of recidivist offenders coming before the criminal courts, for example, could increase the proportion imprisoned without any change in sentencing policy (because recidivist offenders are always more likely to be imprisoned than first-time offenders). The same is true of other factors such as offence seriousness, number of concurrent offences and prior imprisonment.

Tables 1 and 2 show the percentage of convicted offenders by offender/offence characteristic and year of conviction. The final column shows the percentage change in the percentage convicted between 2011 and 2018. Table 1 shows the characteristics that have become more common. Table 2 shows the characteristics that have become less common. Because once n − 1 of the values of a multi-category variable are known (where n = the number of categories), the remaining value adds no additional information, the first listed value of each variable has been dropped from the table. The remaining variable values (i.e. offence/offender characteristics) have been ranked by either largest percentage increase (Table 1) or largest percentage decrease (Table 2).

Table 1.

Case/offender characteristics becoming more common between 2011 and 2018.

Variable value	2011	2012	2013	2014	2015	2016	2017	2018	Change
Variable value	%	%	%	%	%	%	%	%	%
Sexual assault and related offences	0.60	0.64	0.70	0.71	0.72	0.82	0.85	0.98	63.33
Weapons offence	2.23	2.54	2.62	2.91	3.20	3.44	3.38	3.52	57.85
Drug offence	10.01	11.10	11.60	12.89	14.16	14.46	14.25	15.06	50.45
Fraud offence	2.48	2.87	2.94	2.89	2.98	3.38	3.39	3.34	34.68
Prior prison	17.52	19.43	20.27	20.22	21.04	22.00	22.50	23.37	33.39
Justice procedure offence	15.94	17.54	18.50	18.67	19.41	19.78	20.55	20.93	31.30
Four or more prior convictions	32.03	34.99	36.74	37.00	38.91	40.21	40.82	41.73	30.28
Three or more concurrent offences	15.60	16.94	17.68	17.40	18.37	18.93	19.35	19.89	27.50
Abduction/harassment	1.03	1.16	1.19	1.25	1.44	1.34	1.35	1.31	27.18
Aboriginal	9.01	9.97	9.67	9.89	10.19	10.40	10.84	11.38	26.30
Two or more indictable offences	21.87	23.76	24.11	24.35	25.15	25.70	26.33	27.08	23.82
District Court case	2.90	2.85	3.13	3.10	3.11	3.29	3.39	3.53	21.72
Theft offence	7.07	8.06	8.06	7.74	8.11	8.52	8.47	8.60	21.64
44 years old or older	21.74	21.03	21.66	22.76	22.78	23.23	24.01	24.74	13.80
34–38 years old	12.65	12.39	12.31	12.52	13.11	13.27	13.62	13.63	7.75
Inner regional	21.39	21.59	22.19	22.66	23.07	23.49	23.07	22.86	6.87
Break, enter and steal	1.49	1.59	1.60	1.51	1.50	1.47	1.61	1.58	6.04
Highly disadvantaged	28.69	29.42	29.58	29.69	29.29	30.04	30.04	30.10	4.91
Remote/very remote	1.16	1.24	1.25	1.27	1.17	1.10	1.09	1.20	3.45
Disadvantaged	27.94	28.14	28.27	28.56	28.91	28.81	28.66	28.78	3.01
24–28 years old	16.64	16.60	16.62	16.65	16.88	16.99	17.06	17.12	2.88
Act causing injury	16.09	16.23	16.60	16.52	16.38	16.04	16.29	16.51	2.61
Two concurrent offences	16.32	16.66	16.52	16.71	16.60	16.84	16.88	16.70	2.33
Outer regional	7.07	7.19	7.29	7.35	7.08	7.31	7.16	7.23	2.26
29–33 years old	14.29	14.88	14.82	14.76	14.86	15.02	14.78	14.47	1.26
Property damage offence	6.66	6.98	7.03	6.70	6.56	6.61	6.67	6.68	0.30

Table 2.

Case/offender characteristics remaining the same or becoming less common between 2011 and 2018.

Case/offender characteristic	2011	2012	2013	2014	2015	2016	2017	2018	Change
Case/offender characteristic	%	%	%	%	%	%	%	%	%
Supreme Court case	0.07	0.13	0.10	0.08	0.07	0.08	0.08	0.07	0.00
Advantaged	24.86	24.82	24.61	24.74	25.08	25.38	25.31	24.69	–0.68
Traffic offence	37.15	34.62	34.88	34.70	36.40	36.53	37.16	36.43	–1.94
Male	80.39	80.49	80.14	80.03	80.29	79.63	78.96	78.83	–1.94
Guilty plea	69.80	69.21	69.02	67.77	67.44	66.84	66.89	67.64	–3.09
39–43 years old	11.42	11.34	11.69	11.58	11.37	11.23	11.11	10.86	–4.90
Three prior convictions	7.07	7.19	7.03	7.10	7.11	7.16	7.00	6.68	–5.52
One indictable offence	24.55	25.03	24.71	24.23	23.16	22.76	22.69	23.03	–6.19
Non Aboriginal	63.03	63.92	61.34	61.35	60.30	59.69	59.56	58.32	–7.47
Two prior convictions	9.97	9.61	9.53	9.47	9.37	9.34	9.05	8.80	–11.74
Not guilty plea	12.66	13.67	12.73	12.15	11.42	11.18	11.07	11.11	–12.24
18–23 years old	20.25	20.77	20.11	19.24	18.77	17.97	17.32	17.18	–15.16
One prior conviction	15.89	15.22	14.65	14.51	13.99	13.62	13.59	13.32	–16.17
Dangerous/negligent act	4.31	4.52	4.15	3.67	3.43	3.19	3.18	3.15	–26.91
Robbery related offence	0.53	0.51	0.62	0.49	0.44	0.42	0.40	0.38	–28.30

Inspection of the final column in each table reveals some striking changes in the profile of cases and offenders coming before the NSW criminal courts. Between 2011 and 2018, the percentage of offenders convicted of sex offences increased by more than 60%. There were also substantial increases in the percentage appearing for weapons, drug, fraud, and justice procedure offences; the proportion who were Indigenous, and the proportion who had four or more prior convictions, three or more concurrent offences, or who had committed more serious offences and had therefore been dealt with by the NSW District Court. At the other end of the scale (see Table 2), the percentage of young defendants (aged 18–25) declined by 15%, the percentage with only one prior conviction declined by 16%, the percentage convicted of a dangerous/negligent act (most of which involve negligent driving) declined by 27% and the percentage convicted on robbery charges declined by 28%.

These changes suggest that the increase in the percentage imprisoned shown in Figure 6 may have been a consequence of changes in the profile of convicted offenders rather than a consequence of tougher sentencing. The simplest way of investigating this issue is to see whether the growth over time in the probability of imprisonment remains significant after adjusting for changes in the profile of offenders. This can be done by running a logistic regression analysis, where the dependent variable is the likelihood of a prison sentence and the independent variables are the sentence-relevant factors listed in Tables 1 and 2. Our expectation is that, if courts had become more punitive, the variable measuring imprisonment risk would remain significant even after adjustments are made for changes in the profile of offenders.

Figure 6.

Odds ratios for a sentence of imprisonment (no case controls vs. all case controls). Source: NSW Bureau of Crime Statistics and Research (2020c).

Figure 6 shows the results of such an analysis (full details are shown in Appendix 1 Tables 4 and 5).

The first two bars in Figure 6 plot the odds of imprisonment in 2012 and 2018 compared with 2011 in an analysis that includes no controls for case or offender characteristics (see Appendix 1 Table 4). The odds of imprisonment jump 23%, from 1.067 in 2012 to 1.313 in 2018. The second two bars plot the odds of imprisonment in 2012 and 2018 compared with 2011 in an analysis that contains all the controls listed in Tables 1 and 2 (see Appendix 1 Table 5). Here there is no change in the likelihood of imprisonment, indicating that the growth in imprisonment risk is entirely a product of changes in case and offender characteristics rather than an increased tendency on the part of the courts to imprison convicted offenders.

Changes in time spent in custody

What about changes in sentence length? Figure 7 shows the average aggregate sentence and average non-parole period imposed by NSW courts between 2011 and 2019. There is no evidence here that longer sentences have contributed to the increase in the NSW prison population.

Figure 7.

Average aggregate sentence and non-parole period NSW 2011 to 2018. Source: NSW Bureau of Crime Statistics and Research (2020a).

Figure 8 shows the length of stay of those released to parole or released because their sentence had expired.

Figure 8.

Average length of stay (days) for prisoners released to parole or on sentence expiry NSW: January 2013 to December 2019.

If sentenced prisoners were spending longer in custody because they were not being released at the end of their non-parole period, we should have seen one or both of these trends in increase. There is no evidence of this in Figure 8. Taken together with the evidence of Figures 6 and 7, Figure 8 suggests the growth in the NSW prison population between 2011 and 2018 is not attributable to harsher sentencing.

The role of crime and policing policy

This brings us to the contribution of crime and policing policy. Figure 9 shows the proportional contribution to NSW prison population growth by major offence category. The changes involve the profile of inmates in prison, not the profile of persons entering prison. It is obvious that most of the growth has come from four categories of offence: acts intended to cause injury, sexual assault and related offences, illicit drug offences and (to a small extent) offences against justice procedures and related offences.

Figure 9.

Sources of growth in inmate numbers: NSW: 2011 to 2019. Source: Australian Bureau of Statistics (2019).

Figure 10 shows the principal offences of those receiving prison sentences, ranked from those where the number imprisoned has increased the most (between 2011/2012 and 2018/2019) to those where the number imprisoned has increased the least. For reasons of space we limit the graph to those offences that collectively account for 90% of the growth in offenders imprisoned. The light grey bars show the growth in the percentage imprisoned by offence type. The dark grey bars show the cumulative percentage imprisoned across offence types.

Figure 10.

Per cent change and cumulative per cent change in number imprisoned by offence type NSW: 2011/12 to 2018/19. Source: NSW Bureau of Crime Statistics and Research (2020a).

There have been large increases in the number of people imprisoned for serious assault occasioning injury or common assault (up 23.7%), intimidation/stalking (up 16.8%), breach of an apprehended violence order (up 11.8%), aggravated sexual assault (up 11.4%), dealing or trafficking in illegal drugs, whether or a commercial or non-commercial quantity (up 11.2%), and and/or breach of a supervised bond or other community-based order (up 10.5%).

Among these offences, only those involved in drug trafficking could plausibly be attributed to rising crime. Although the evidence cannot be regarded as conclusive, most indicators point to a rapid increase in amphetamine consumption in Australia over the last decade. The number of methamphetamine border detections rose by 500% between 2010 and 2013; the weight of methamphetamine detections rose by 700% over the same period; the number of clandestine methamphetamine laboratory detections has risen by 80% since 2008/9; the median purity of amphetamine seizures rose from 10% in 2011 to more than 70% in 2013 (Commonwealth of Australia, 2017a). Data from the 2016 National Drug Strategy Household Survey show that between 2010 and 2016, daily and weekly use of meth/amphetamine more than doubled (from 9.3% to 20%), while daily and weekly use of crystal methamphetamine increased from 12.4% in 2010 to 32% in 2016 (Australian Institute of Health and Welfare, 2017). There have also been substantial increases in methamphetamine-related hospital separations, amphetamine-related calls to telephone helplines, emergency department admissions for amphetamine use and hospital admissions for stimulant-related psychosis (Degenhardt et al., 2017; NSW Health, 2020; Roche et al., 2015). This suggests the growth in drug arrests is in large part a reflection of the growth in illegal drug trafficking and consumption.

There is no evidence, on the other hand, of an increase over the period 2011/12 to 2018/19 in recorded cases of domestic or non-domestic assault (Goh & Ramsey, 2020). Reported rates of sexual offences have increased since 2011 but this increase is more likely due to cases of child sexual abuse that were revealed in during Royal Commission into Institutional Responses to Child Sexual Abuse (Commonwealth of Australia, 2017b; Weatherburn, 2018) rather than a real increase in the incidence of sexual assault. Both have also been the subject of intensified law enforcement. NSW, for example, established a Sex Crimes Squad and the Joint Investigation Response Squad ‘to ensure provision of a specialist adult sexual assault and child protection service to support Local Area Commands across NSW’ (NSW Police, 2016a). It also established a Child Exploitation Internet Unit to deal with child pornography (NSW Police, 2016b). It seems likely, therefore, that much if not all of the growth in court appearances for this offence, as with intimidation/stalking, is due to increased law enforcement.

The same applies to the increase in offenders imprisoned for breach of a supervised bond or other community-based order. The number of POIs proceeded against to court by NSW Police for breach of a community-based order rose from 13 in the financial year 2011/12 to 415 in 2018/19, and most of this increased occurred between 2017/18 and 2018/19 (NSW Bureau of Crime Statistics and Research, 2020c). It is possible this 32-fold increase is the result of an upsurge in the willingness of offenders placed on community-based orders to breach those orders. It is also possible that probation and parole staff are taking a less tolerant view of breaches of court supervisions or that offenders are finding it increasingly difficult to comply with the conditions courts are placing on community supervision orders. For reasons explained in the next section, however, the most likely explanation for the increase is that NSW Police have made prosecuting offenders who fail to comply with community-based orders a particular focus.

Discussion

The aim of this study was to examine the respective contributions of crime, policing and penal policy to the sharp increase in the NSW prison population between 2011 and 2018. The evidence presented here suggests that the growth in the NSW prison population since 2011 is largely a consequence of changes in policing policy and (to a lesser extent) crime, rather than changes in penal policy. The remand population rose in part because of an increase in bail refusal but mainly because of a dramatic growth between 2011 and 2018 in the number of people arrested and prosecuted by police, and because those placed on remand were spending longer in custody. The increase in time on remand appears to have been due to two factors: an increase in court congestion (as a result of the increase in arrests) and an increase in the proportion of those on remand whose bail had been revoked following a breach and who would therefore have been held in custody until their case was finalised. Both the increase in arrests and the increase in cases of bail breach (leading to bail revocation) appear to have been a consequence of changes in policing policy.

Police also appear largely responsible for the increase in the sentenced prisoner population. Once adjustments are made for changes in the profile of persons appearing before the criminal courts, there is no evidence NSW courts have engaged in harsher sentencing practices. What appears to have happened is that that the combination of more arrests and a change in the profile of those arrested simply funnelled more people into custody. The proportion of offenders convicted of serious offences increased, as did the proportion with multiple concurrent offences, multiple prior convictions and a prior sentence of imprisonment. With the exception of the growth in arrests for drug offences, none of this can plausibly attributed to rising crime. Police simply seem to have adopted a deliberate policy of targeting those they believe to be frequent offenders and/or those who are likely to be refused bail by the courts or who are likely to receive a prison sentence if convicted.

What caused this shift in policing policy? It is impossible to be certain but there are a number of factors worth considering. One of these is the growing influence of managerialism in the NSW public sector and, in particular, the adoption by successive NSW Governments of ‘State Plans’ (McMahon & Phillimore, 2013). NSW introduced its first State Plan in 2006 but it came without specific targets or any mechanism for ensuring that the plan was property implemented. Soon after it was elected in 2011, however, the current Liberal/National Government introduced a second State Plan (NSW, 2020). That plan required police to reduce personal crime by 10% and property crime by 15% 2015/16. Under the plan police were told to ‘Strengthen [their] response to identified crime trends and crime hot spots via high visibility policing and targeted operations.’ Importantly, police had no control over the crime statistics used to measure their performance in achieving these objectives. That responsibility fell to the NSW Bureau of Crime Statistics, which helpfully published quarterly reports on trends in every category of crime broken down by Local Government Area and even created an on-line tool enabling internet users to identify crime hotspots in the local area. This would have put the NSW Police under considerable pressure to find ways of reducing crime or at the very least show that they were making a serious effort.

Police would have been aided in their efforts to reduce crime by two factors. The first was a significant increase in their numbers (SCRGSP, 2003, 2006, 2013, 2018). This increase occurred against the backdrop of falling crime (Goh & Ramsey, 2020) and would have given them much more scope to engage in targeted law enforcement activity (as opposed to simply responding to calls for service). The second was a resurgent police confidence in their capacity to control crime. This confidence was initially sparked by the hype surrounding zero tolerance policing but, while that idea failed to take root in Australia, a growing academic literature on policing certainly drew their attention. One idea that seems to have had particular influence in NSW is the idea of focussed deterrence, that is, the notion that you can deter high rate offenders by directly threatening them with arrest and prosecution if they breach the law and then subjecting them to close surveillance (Braga et al., 2018; Kennedy, 1997). It seems to have been this idea, as publicised in the report Preventing Crime: What Works, What Doesn’t, What’s Promising’ (Sherman et al., 1997) that gave birth to the so-called ‘suspect target management plan’ (STMP; see: LECC, 2020, p. 9).

The STMP was first introduced in 2000 but substantially revised in 2005. NSW Police have always been reluctant to publish details of the plan but the NSW Law Enforcement Conduct Commission (LECC) recently conducted a review of the STMP (as it affected young people) and summarised the police internal characterisation of it in the following terms:

The NSW Police Force defines a properly managed STMP as involving identification of a suitable target, a standardised risk assessment to assess the risk posed by the target, assessment by commands about whether and how to target a person, the development of a TAP [target action plan] which documents the actions police will take in relation to the target, records of all interactions between police and the target and a review of the impact of the police actions on the target’s behaviour. (LECC, 2020, p. 8)

The ‘Compliance strategies’ pursued by police specifically include ‘enforcing bail’ and ‘ensuring compliance with the sanctions imposed upon offenders’ (LECC, 2020, p. 8). While one should be careful not to overstate the importance of the STMP, it does seem to have played a key role in changing the profile of those appearing before the NSW criminal courts if not in also driving the rapid increase in arrests that occurred around the same time.

The current findings raise important issues for public policy and public administration. On the policy side, a key issue is whether the benefits of the STMP outweigh the cost. Judged in terms of its effect on inmate numbers the programme is very expensive. It has also been the subject of considerable criticism on human rights and jurisprudential grounds (LECC, 2020; Sentas & Pandolfini, 2017). The STMP may well be effective in reducing crime but to date, the programme has passed without any independent public evaluation. This failure to evaluate controversial practices is a recurring problem in Australian law enforcement. Whereas justice and other Government agencies are increasingly expected by central agencies to subject their programmes to independent evaluation, police rarely have to demonstrate the need for additional resources or the effectiveness of their programmes and strategies in reducing crime. The tacit (if naïve) assumption seems to be that if crime is going down, police must deserve the credit.

For their part criminal justice administrators need to start looking beyond law reform as a means of managing the demand for scarce court and prison resources. Courts are subject to significant institutional, legal and cultural constraints that make rapid change in bail and sentencing practice uncommon. By contrast, within broad limits, police can make changes to their strategies and tactics without the need for any change in the law. Furthermore, because Police Ministers are not supposed to interfere in the operational decision-making of police, Police Commissioners are able to institute major changes in policing strategy without any requirement for Ministerial approval. The implication is clear. Criminal justice administrators need much earlier warning of, if not input into, law enforcement policies that could place the criminal justice system under severe strain. Governments that want to reduce or contain the growth in their prison populations also need to look closely at the law enforcement policies they condone or encourage.

Supplemental Material

sj-pdf-1-anj-10.1177_0004865820944975 - Supplemental material for Is tougher sentencing and bail policy the cause of rising imprisonment rates? A NSW case study

Supplemental material, sj-pdf-1-anj-10.1177_0004865820944975 for Is tougher sentencing and bail policy the cause of rising imprisonment rates? A NSW case study by Don Weatherburn in Australian & New Zealand Journal of Criminology

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Don Weatherburn

Note

Appendix 1

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