Flat White

Throwing kids in prison doesn't work

24 February 2022

4:00 AM

24 February 2022

4:00 AM

In 1993 the British Home Secretary, Michael Howard, famously said ‘prison works’. He was right, but only in the most anaemic sense.

Youth justice facilities and prisons stop criminals from committing further depredations during their incarceration. That’s incredibly important. Yet all but the most egregious offenders are eventually released. What then?

In the current context of a national debate about whether to raise the age of criminal responsibility to reduce Indigenous over-representation in youth prisons, it is a question worth pondering. Left-wing reformers in the early 19th century thought they had an answer.

That period witnessed a massive change in the way the state, across the Western world, dealt with criminals. Previously, the ‘Bloody Code’ focussed on the bodies of offenders – meting out punishments like flogging and mutilation.

In 1757, the young Robert-Francois Damiens was convicted of attempting to assassinate the French King, Louis XV. He came to regret it.

Damiens was sentenced to proceed to the Place de Greve, in Paris, where ‘the flesh will be torn from his breasts, arms, thighs, and calves with red-hot pincers and, on those places where the flesh will be torn away, poured molten lead … and then his body drawn and quartered by four horses’.

Sadly for Damiens, six horses were needed and even then officials ‘were forced, in order to cut off the wretch’s thighs, to hack at the joints’ before he was eventually dismembered.

Quite a way to go!

The purpose of bodily punishments was to dramatically highlight, in public, the power of the sovereign and thereby deter others from criminality.

However, during the 1800s Whig parliamentarians like Samuel Romilly and Thomas Buxton – the forerunners to modern Labour – were successful in enacting radical change in Britain, which was copied in the colonies.

Exemplary punishments ceased. In their place, the penitentiary was established as the key means of punishment. It remains so today.


In design, penitentiaries were based upon a 1791 sketch by the Utilitarian philosopher Jeremy Bentham. Titled Panopticon, a person standing in a central hexagon enjoyed a clear line of sight into every cell in six pentagons that led from it, allowing constant inspection.

Reform was the new aim of the penal system. As French scholar Michel Foucault said in his seminal work, Discipline and Punish, the focus shifted from the body of the offender to the soul. The all-seeing eye of the State, coupled with wholesome activities like reading, exercise, and religious instruction would create ‘docile bodies’.

After more than 200 years, let’s check how this massive Left-wing social-policy experiment is going. In short, badly.

In my state of Victoria, for example, 61 per cent of young people are known to re-offend in the years after release. I am a member of a Victorian parliamentary committee that is currently undertaking a broad inquiry into the justice system. Shut your eyes, forget that witnesses are appearing via Zoom, and you could be in a musty committee room at the palace of Westminster in the middle of the 19th century.

The criticisms of the penitentiary system are virtually unchanged: the contamination and criminalisation of young offenders by hardened recidivists, the planning of future crimes, a lack of meaningful rehabilitative programs and, ultimately, an unacceptably high rate of re-offending upon release.

So, instead of ‘docile bodies’ the system is creating a criminal class. Mountains of data amply bear out this finding. Where does this leave us? Of course, the public must be protected. Thus incarceration, often for very long periods, must remain a vital tool.

Yet as the protection provided by detention is almost always time-limited, we need a paradigm shift. Here we return to the debate about raising the age of criminal responsibility.

This proposal should not be mistaken for the main reform game. Rather than focussing solely on keeping young offenders out of prison, let us aim higher – and seek to prevent them from committing a crime in the first place.

A key predictor of offending by young Australians, and the key predictor for Indigenous children, is involvement with child protection. In Victoria, one in ten Indigenous kids are in care today. Many then engage in crime.

Among the huge proportion of young children known both to Victoria’s child protection and youth justice systems, fully one in four are Indigenous. To put this appalling over-representation into context, fewer than one in a hundred Victorians are Indigenous.

While these statistics are worse in Victoria than elsewhere, the broad problem is national. Hence, the faith of those on the Left in the capacity of the State to change hearts and minds is just as wrong-headed and hubristic today as it was in the early 19th century.

Only individuals themselves, supported by strong families and communities, can enact change. Yet state governments, most notably in Victoria, have no plan to support vulnerable families early.

To have such a plan is doubly important right now. Vulnerable families have been impacted even more than others by Covid restrictions. For example, here in Victoria, the Murdoch Children’s Research Institute has consistently pointed to the impact of the world’s longest lockdown and school closures of more than 170 days. These heavy-handed measures have precipitated both a learning and mental health crisis, while greatly exacerbating disadvantage.

Two remedies present themselves. Firstly, we must radically reorient child protection systems (and funding) away from crisis management to prevention – investing in evidence-based programs to be run by non-government organisations. Numerous such programs were identified by Social Ventures Australia in a major report in 2017.

The efficacy of several such programs, like intensive family therapy, is supported by much empirical evidence.

Secondly, we need to hand over significantly more power to Indigenous-led community organisations in the administration of these programs. Cultural competency and understanding matters; something the advocates of centralised, government-led responses perennially fail to understand.

Indeed, it is widely recognised – most recently by Victoria’s Commissioner for Children and Young People – that Indigenous-led organisations have a much better chance than governments of delivering good outcomes for children.

The evidence, therefore, clearly shows that a decreased direct role for governments, and a much-expanded role for charity groups and community organisations, would help keep many more children and young people out of jail.

When Conservative Michael Howard said ‘prison works’ he showed a misunderstanding of the historic role of the centre-Right.

As progressive politicians in the 19th century championed the power of the State, through penitentiaries, Conservatives like Lord Shaftesbury and Sir Charles Adderley pushed for reforms to prevent crime in the first place.

As one Home Office official said, ‘The jails would have been full if it had not been for the efforts of Mr Adderley in reformatory work.’ That is the main reform game.

Dr Matthew Bach MP is the Victorian Shadow Attorney-General and Shadow Minister for Child Protection and Youth Justice.

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