OPINION: The alarming over-representation of Aboriginal and Torres Strait Islander people in Australian prisons, combined with high recidivism rates and poor health and social outcomes among ex-prisoners, has led to claims that incarceration is failing as social policy.

Prisons cost many millions of dollars to build and operate. In 2012, Australian governments spent A$3.1 billion on correctional services, including A$2.4 billion on imprisonment alone. In the Northern Territory, which has one of the world’s highest rates of incarceration, the new Darwin Correctional Precinct cost an estimated A$500 million to build and will house up to 1000 prisoners.

Given the social and fiscal costs of imprisonment, social justice advocates and academics are increasingly calling for a new policy agenda. However, due to a social, political and media fixation on “law and order”, wider public debate often ignores the need to reconsider imprisonment policies.

The reliance on opinion polls to conceptualise and assess public opinion needs to be questioned as the first step towards reform. In our study, published by the Lowitja Institute, we sought to test a citizens' jury approach to assessing public opinion on how the community should respond to offenders in terms of incarceration and incarceration alternatives.

Tap into informed public opinion

Democratic convention suggests that policymakers should take into account public opinion alongside “expert” and stakeholder knowledge. This reflects a “democracy at work” approach whereby what the people want informs policy and reform. Researchers and political actors alike commonly perceive public opinion to hold punitive attitudes towards offenders.

Large representative studies from Australia, the UK, North America and New Zealand show striking commonalities in opinion poll findings. These suggest that most people regard sentencing as too lenient. Such research fuels the perceived “lock ‘em up” attitude towards offenders.

However, it is important to note that questions in such opinion polls are often framed in simplistic ways. These elicit ill-considered views informed by erroneous assumptions, fears, stereotypes and prejudices towards offenders. Such views are often derived from representations and debate in market-driven news media.

Scholars question whether we should call these surveys public “opinion” polls at all. “Public emotion polls”, “word-association tests” and “top-of-the-head polls” have been suggested as more accurate terms. In a sense, such research works towards reducing and conceiving the public as an emotionally reactive populace, rather than a critically informed citizenry.

Accordingly, many misconstrue opinion poll research. Politicians exploit this to perpetuate punitive penal policies at the expense of the alternatives.

Exploring a citizens' jury approach

To direct policy away from more imprisonment, methods that capture informed and considered public opinion require investigation. One possible avenue is the use of deliberative research models such as planning cellsconsensus conferences and citizens' juries.

In Australia, citizens' juries have been used in areas such as environmental management and health care. Only recently have they been used in a criminal justice context.

Based on a similar principle to legal juries, citizens' juries bring together a randomly selected group of citizens (“jurors”) who are said to “represent”, or be inclusive of, the community. Jurors are given access to a range of information. They can question and clarify key issues through discussions with the “experts” or knowledge producers.

Jurors are also involved in extensive discussion with each other as part of the deliberative process. This enables them to develop nuanced conclusions about a subject area as well as more considered preferences for particular policy approaches.

We held citizens' juries in Sydney, Canberra and Perth. Jurors were asked to deliberate on the principles that should underlie responses to offenders and strategies to enact those principles. Principles identified across juries included:

  1. equity and fairness, particularly in relation to the social, cultural and economic circumstances of offenders;

  2. prevention, including a commitment to tackling the causes of offending;

  3. community involvement in the development of justice and penal policies.

While Canberra and Perth jurors highlighted a preference for retaining deprivation of liberty for very serious offences, ways of enacting these principles primarily included strong support for non-punitive approaches and alternatives to incarceration. Strategies included:

  • better services and programmes to address the underlying determinants of crime

  • prison diversion programmes

  • raising awareness of prison alternatives to promote discussion and prospective public endorsement of such options

  • a commitment to allocating public funds to non-incarceration options.

The study presented methodological and practical challenges. For the Sydney jury, we outline these in a Journal of Australian Political Economy article.

Nonetheless, the findings indicate that given the opportunity to deliberate on wider knowledge about offenders and responses to offending, participants preferred prison alternatives. They were less concerned with punitive “tough on crime” approaches.

Questioning the terms of debate

Ultimately, change towards decarceration policies will occur when the wider community accepts and demands change.

Community demands should ideally be critically informed, not emotively driven. The latter lends itself to exploitation by media and political populists.

Questioning public discourse on crime and punishment should be encouraged. It is important to begin examining how public opinion is conceived and assessed when it is used to justify policy.

Deliberative research and forums can contribute to a new, informed discourse. Our study provides a small contribution in highlighting the potential of public opinion research to shift the criminal justice emphasis away from imprisonment and towards its alternatives.

Paul Simpson is a Research Fellow and Tony Butler is Professor and Programme Head at The Kirby Institute UNSW.

This opinion piece was first published in The Conversation.