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(Particularly) burdensome prison time should reduce imprisonment length — and not merely in theory

journal contribution
posted on 2014-01-01, 00:00 authored by Mirko Bagaric, R Edney, Theo AlexanderTheo Alexander
Imprisonment is the harshest sanction in our system of law. It is a sanction that is
increasingly imposed by the courts. The severity of imprisonment as a sanction stems
principally from the considerable restrictions it imposes on an individual’s liberty.
However, the deprivation experienced by a prisoner can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined and his or her state of health. Prisoners subjected to non-mainstream conditions almost invariably suffer more than those in normal conditions. There is no settled approach regarding the extent to which prison conditions should impact on the length of a prison term. The jurisprudence in this area is inconsistent. It is particularly unsettled when the additional burden stems from subjective matters relating to an accused, such as ill health. In this article we make recommendations regarding the manner in which prison conditions should impact on the length of a prison term. The main recommendation is that prisoners who spend time in particularly burdensome conditions should have their sentence reduced by a factor of 0.5 days for each day spent in such conditions. In this article we also recommend that Australia should adopt a model similar to those which exist in some Scandinavian countries, whereby the only deprivation stemming from imprisonment is the loss of liberty. This would mean that few prisoners would ever be subjected to particularly burdensome conditions. This would make many of the recommendations in this paper obsolete. However, there is no evidence that Australian prison conditions are about to fundamentally alter. Hence, the recommendations will remain pragmatically relevant in the foreseeable future.

History

Journal

Melbourne university law review

Volume

38

Issue

2

Pagination

409 - 443

Publisher

Melbourne University Law Review Association

Location

Melbourne, Vic.

ISSN

0025-8938

Language

English

Publication classification

C1 Refereed article in a scholarly journal; C Journal article

Copyright notice

2014, Melbourne University Law Review Association

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