I believe the Liberal Party must take back ownership of the conservative value of redemption.

In an age when incarceration rates are rising, it is time to appeal to our better selves, and the good in our fellow citizens, by exploring innovative ways to combat the root causes of crime.

The key task for reform of the criminal justice system is to differentiate between the people we are afraid of, and the people that we are just mad at.

When discussing this policy area, one thing which the ideologues on the left always misunderstand is that to achieve community support for any reform, community safety must always remain the priority. Always.

The bipartisan reform of the justice system can never be achieved if the public does not have confidence in the system to keep dangerous criminals behind bars. 

As Liberals, we have a proven track record of keeping the community safe that we should be proud of. However, we should also be honest enough to learn from previous elections that sometimes the ‘tough on crime’ mantra can go too far. 

For those on the right, we should want to see reform for a greater purpose than the left. We must make the case on good policy, not simply ideology, as we so often see from the left.

Reducing high rates of incarceration means a greater number of Australians can become productive members of society. Achieving this through employment, supporting their families and becoming active members of their local communities. 

If we abhor ‘cancel culture’, as we should, we should also apply those same principles to our justice system. People are better than their worst moments. And those who have followed the wrong path should always be helped onto the right one where there is an opportunity to do so. 

For too long, the justice portfolio has been quarantined from the smaller government agenda on the Liberal side of politics. But the strain on the prison population, and the growing need to build more prisons, is costing governments billions. That should worry conservatives, classical liberals and libertarians alike. 

We know from the Productivity Commission’s 2021 report, The Prison Dilemma, spending on prisoners and prisons closely aligns with rates of incarceration. Therein lies the growing need for economic conservatives to engage with criminal justice reform. 

The numbers consistently seem starker in Victoria. The Productivity Commission found that Victoria had the highest average annual growth in the real level of prison cost from 2011-12 to 2019-20 at 7.3%. Victoria also boasts the highest yearly expenditure per prisoner of any State at $154,000. More than one and a half times the average annual full-time wage. 

According to the Sentencing Council of Victoria, Victoria locked up 109 prisoners per 100,000 people in 2021, an increase of 2.1% on 2020. And as of 30 June 2021, Victoria’s prison population was 7,248, an increase of 1.4% from the previous year.

While these numbers reflect the government of the day and their approach to the justice and corrections portfolios, they also present an opportunity for reform. We should look at the system as a whole and come up with evidence-based policies to keep people out of prison who should not be there. It is a positive policy reform that would save millions of scarce taxpayer dollars in the process. 

New Victorian Liberal Leader John Pesutto sees this as an opportunity. And has appointed Brad Battin to the Liberals’ first-ever criminal justice reform portfolio. 

As Mr Pesutto has said: 

Finding ways to give young people, especially those growing up in the most disadvantaged of circumstances, the opportunities to pursue a fulfilling and productive life through education, training and employment, will be a key feature of Brad’s role.

Developing pathways to ensure that fewer people interact with our justice system is more important than ever.

The Sentencing Council also found 43.6% of prisoners released during 2018–19 returned to Victorian prisons within two years. This rate is slightly lower than the Australian rate of 45.2%. The Northern Territory had the highest rate at 58.9%, and South Australia had the lowest rate at 33.2%.

The rate of people returning to prison following release is not the only measure of recidivism. Another measure of recidivism is the proportion of prisoners who return to corrective services. This measure includes people who return to prison, as well as people who are subsequently placed on community orders.

That number is significantly higher in Victoria at 52.5% in the two years to 2020–21. However, was similar to the national rate of 53.1%.

Victoria has the lowest rate in Australia for community-based sentencing, which represents fine orders, supervision in the community, parole, bail and sentenced probation orders, at 159.2 people per 100,000 adults. Depending on your perspective this can be seen as a positive or a negative. In the United States, Republican States achieved extraordinary success by punishing offenders who were not a threat to the community in alternative ways like community-based orders.

The Institute of Public Affairs, where I was previously employed, recently released a report by the Dean of Law at the Swinburne University of Technology, Professor Mirko Bagaric’s, Australia’s Emerging Incarceration Crisis. Proposed Reforms of the Australian Sentencing System, that found Australia could release almost one-third of its prisoners with little risk to community safety. 

According to Professor Bagaric’s work, reform proposals should secure the following objectives; crime reduction; appropriate punishment of criminals; minimising the cost of the system; and, ensuring that the system does not violate important moral norms.

To improve the sentencing system, Professor Bagaric wrote it is necessary to reassess the current aims of sentencing; give content to the principle of proportionality; harmonise aggravating and mitigating considerations, establish standard penalties for key offence types and introduce new criminal sanctions.

As Professor Bagaric said: 

The model is loosely based on the systems in Scandinavian countries. The prospect of lowering crime rates and reducing prison numbers is achievable. The imprisonment rate in Scandinavian countries is half of that in Australia and the victimisation rate is less by a factor of approximately one-third. A proportionality-focused sentencing system driven by empirical data can confer profound benefits to the community, in the form of a fairer and less expensive sentencing system and safer community.

Federal Labor Assistant Minister, the Hon Andrew Leigh MP, has been a long-term advocate for criminal justice reform in Australia. In a speech to the Australian Institute of Criminology in October 2022, Dr Leigh pointed out that Australia’s incarceration rate has doubled since 1985, despite a dramatic fall in the number of serious offences like murder, car theft and robbery.

Dr Leigh says that stricter policing, tougher sentencing and more stringent bail laws are the main drivers of prison population growth, calculating that governments could have saved $2.6 billion if incarceration had remained at 1985 levels.

The easiest thing to do as a conservative is just to accept that anyone who critiques the current trajectory of the justice system in Australia as ‘soft on crime’. What might be more difficult for some is to acknowledge that Dr Leigh has a point.

Framing is key. Dr Leigh is right to pursue criminal justice reform as an economic issue because it is. If you frame reform as saving the taxpayer billions of dollars, you are much more likely to win over a larger share of the population. 

The book Prison Break: Why conservatives turned against mass incarceration by John Hopkins University academics Dr David Dagan and Associate Professor Steven M. Teles provides extraordinary insight into how Republicans, over time, went from tough of crime, to smart on crime. 

Grover Norquist, head of Americans for Tax Reform, and influential Republican intellectual said, as far back as 2011, that criminal justice is conservative’s “Last Sacred Cow”. Norquist said:

Spending more on education doesn’t necessarily get you more education. We know that - that’s obvious. That’s also true about criminal justice and fighting crime.

Newt Gingrich made an incredible personal policy reversal on criminal justice reform, once an advocate for using the ‘tough on crime’ mantra in congressional races, in 2011 he acknowledged that:

There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential. The criminal justice system is broken, and conservatives must lead the way in fixing it.

Former Texas Governor Rick Perry has triumphed corrections reforms as a signature accomplishment, he reflected:

One of the most important things we did in Texas while I was governor is reform our drug-related sentencing laws, so that non-violent offenders could stay out of prison.

Perry successfully made the case for “second chances and human redemption”.

The legacy of the reform effort in Texas has been the closing of 10 prisons in the past decade, and the prison population has dropped by 17,000, saving the taxpayer tens of millions of dollars.

Perry was late to the party though, and a lot of credit must go to people like criminal justice reformer, and former Republican representative Jerry Madden, who was one of the first to champion a lot of these reforms. 

Madden has said Democrats tend to focus on changing lives. Republicans such as him tend to focus on saving money and cutting taxes. So started a bipartisan reform effort. As Madden said:

I’m a conservative politician who’s saying let’s save taxpayers some money, but if I can change things so crime goes in a different direction, then I can in fact change lives. If I could do that at the same time as saving money and spending smarter, wouldn’t that be a great thing?

We should be looking to these successful criminal justice reform efforts like those in largely Republican states in America like Texas and Georgia, where they have prioritised community safety, given people a second chance at life through alternative punishment and work programs, keeping people out of prison for good, and received a fiscal dividend through being able to close prisons, rather than open new ones.

The key to achieving this was by differentiating those who are a threat to the community, and those who are not. We must draw a clear line in the sand between violent and non-violent offenders. 

As a matter of principle, I believe low-level drug possession, defaulting on fines and even some white-collar crime should not be valid reasons for Victorians going to prison.

If they are not a threat to community safety, then they do not belong in prison. 

That does not mean that these crimes should go unpunished. We can, and must, prioritise community safety, and also find alternative punishments for people that should not be in prison.

We know that it is far more rational economically to spend a nominal amount, say $100,000 or so, at the start of someone’s interaction with the justice system to rehabilitate them, including substance treatment and educational programs, than spend upwards of $150,000 a year, every year for the rest of their life, to keep them in prison.

It is a proposition that makes sound economic sense, but it is importantly, a better outcome for society.

As has been put to practice in the United States, this means money saved on keeping people out of prison, can then be invested in rehabilitating citizens, and ensuring serious violent and sexual offences are punished appropriately in our criminal justice system. 

Finding good in people, and rehabilitating them towards a better life, is not a progressive idea. It is a conservative one. We cede ground over compassion to the left at our peril. 

The left uses the mirage of compassion as a blunt force to make government bigger, and people less free. 

One only has to see how the Black Lives Matter movement in the United States morphed into the ‘abolish the police’ movement, which has proven a monumental failure. 

As Liberals, we should be reluctant to use mechanisms that take away the power of judges to make proportionate sentences. This is why on principle, as a personal view, I do not agree with the use of mandatory minimum sentences. However, it is blatantly clear, on too many occasions, the decisions of courts have simply been out of line with community expectations. But I don’t believe proper criminal justice reform is possible with so many clogged in our justice system. 

Campaigns in Australia like ‘raise the age’ which seeks to raise the age of criminal responsibility to 14, in the same way, take power away from our courts to decide the proportionate punishment. Some of the most hideous murders and sexual offences have been carried out by those between the ages of 10-14.

Judges and courts should decide the proportionality of the offence, especially if that individual is a threat to community safety. This ongoing conversation requires a level of discussion far greater than slogans.

This is why the Liberal side of politics should engage in a broad ongoing discussion about criminal justice reform.

A solution to the ‘raise the age’ policy debate, just might lie in following what reformers in the United States were able to achieve. This could involve differentiating violent and non-violent offences for those aged 10-14. If someone has committed a serious violent offence, then they are a threat to the community and should not be allowed to walk free purely based on their age. 

Likewise, if a 10–14-year-old has committed a non-violent offence, this means they are not a threat to community safety and should be punished in other ways. In addition, it is in our economic interest to ensure that the state provides the necessary rehabilitation programs to prevent them from becoming repeat offenders.

I firmly believe there are good human qualities in every Victorian, even those that have followed the wrong path. We should always seek out the good in our fellow Victorians and find a pathway to redemption.

Criminal justice reform should be seriously engaged with by Liberals, it not only makes sound economic sense, but it is also morally the right thing to do.

Evan is a Member of the Legislative Council in the Parliament of Victoria. Before that he worked for the Institute of Public Affairs as the Director of Communications.