Claudia is a third year Bachelor of Arts student at the University of Melbourne, majoring in Politics and International studies. She has declared no conflicts of interest in writing this opinion piece.
The criminal justice system has been widely criticised as a failure of both public policy and the welfare state, acting as a ‘band-aid’ solution for a wide range of social problems such as homelessness, drug addiction and family violence. Phrases like ‘mass incarceration’ and ‘the prison-industrial complex’ have become short-hand for describing the failures of the criminal justice system and play a critical part in this discourse. Community-based punishment has been posited as an ‘alternative’ to incarceration, allowing convicted offenders to be disciplined within the community rather than by a custodial sentence. American sociologist Stanley Cohen argued that ‘the development of alternatives to incarceration is synonymous with a widening 'net' of penal control’ (Cohen 1985). Should we make better use of this ostensibly more ‘lenient’ system?
A central contradiction of community-based punishment is that in order to present a viable alternative to incarceration, it must be punitive enough to be an adequate response to the judicial demand for sentences that punish and restrict. Thus, it often involves intrusive and invasive procedures such as drug tests, unscheduled home visits, and electronic monitoring devices. It has been suggested that allowing offenders to remain in the community helps them ‘avoid criminogenic effects of incarceration’, keeping them ‘employed, and engaged with their families, friends, and communities’ (DeMichele 2014). In reality, these enforced restrictions often prohibit offenders from maintaining employment and social support networks. Considering common risk factors for criminalisation, such as addiction and homelessness, many offenders struggle to comply with the restrictive conditions of community punishment. Additionally, community-based punishment is commonly implemented without any formal trial or adjudication of guilt; alleged offenders are required to admit they have committed an offence before they are eligible for community-based punishment. This is likely to encourage innocent individuals to plead guilty in order to avoid court proceedings.
The principle of community-based punishment has the potential to provide a constructive framework which might mitigate criminalisation. It could also provide an avenue to treatment programs and support for those who may not otherwise have access to these resources. Similarly, many incarcerated people would likely prefer community-based punishment to a custodial sentence. The challenge is to strike a balance between easing the ‘pains of imprisonment’ whilst not increasing the hold and reach of the criminal justice system on society. Therefore, community-based punishments should be beneficial to both offenders and the wider community, and lead to meaningful decarceration. For this to be successfully implemented however, significant transformation of the criminal justice system is needed. The existing model of community-based punishment has resulted in a growing population under the jurisdiction of the criminal justice system who may have otherwise avoided criminalisation. For example, in Australia, the number of people under supervision in the community has increased by 30.2%, since 2007, whereas the prison population has increased by 20%. Most of these ‘new’ offenders are ‘shallow-end offenders’, who are likely would not otherwise have been incarcerated.
Existing community-based punishment programs ‘mimic the very custodial features they set out to replace’. Hence, I argue that community-based punishment should only be used to supplement cases where individuals would otherwise be incarcerated. It should not be employed as a new form of punishment in cases where the individual would not have otherwise come into contact with the criminal justice system.