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A ban on cigarettes in NSW prisons sparked fears of insurrection, but questions have arisen over the effectiveness of such policies and the greater problem of overcrowded facilities. By Mike Seccombe.

Smoking ban set to inflame larger issues in prisons

Maybe it was the threat of the riot squad. Maybe the offer of nicotine patches. Or perhaps the provision of playing cards and other distracting activities that averted the explosion, so eagerly anticipated in the media, when New South Wales jails went smoke-free on Monday.

We’d certainly been led to expect more. Ever since the spectacular rampage by prisoners at the Metropolitan Remand Centre in Melbourne’s Ravenhall six weeks ago, the tabloids, radio shock jocks and NSW Minister for Corrections David Elliott had been preparing us for the worst.

To hear Elliott talking on 2GB, you would hardly have thought this was a public health measure, done for the good of prison inmates and guards. It was all about being tough in the face of prisoner intransigence.

As Elliott told Ray Hadley: “If you want personal freedoms, don’t go to jail. Jail [is] a place to be punished…”

NSW would not be diverted from the plan to make the state’s prisons smoke-free. Not by the reality of a recent riot in Victoria, nor by the prospect of one. The state was ready for them.

And no doubt it was prudent to be prepared. The Melbourne riot was big. It lasted 15 hours, involved 300 inmates and caused extensive damage. Some reports estimated the cost at $10 million.

A smoking ban was to begin the next day. But the fact two things happen at the same time does not necessarily indicate causation. While media reports focused on the impending smoking ban, they also reported that the trouble began between two rival groups of bikies.

Multiple inquiries are afoot to determine the cause and who was involved. We’ll see. But it’s worth noting that similar bans have been brought in in many other countries and Australian states, including Queensland, Tasmania and the Northern Territory, mostly without significant problems.

In only one detention facility in one state has a smoking ban coincided with mass violence.

Still, more sober-minded people than Elliott had issued warnings the ban could set off things in NSW. Notably the state’s inspector of custodial services, John Paget, in his report into the conditions of the state’s prisons, released a couple of months earlier.

In an already volatile environment, he said, “even small additional pressures can make the difference between conditions that are uncomfortable and those that are intolerable. This will need to be acknowledged when smoking in correctional centres is banned from August 2015.”

Notwithstanding Elliott’s talkback bombast, the introduction of the smoking ban has not been undertaken in a punitive way, with various measures in place – most importantly nicotine replacement therapy – to ease the change.

And it is a big change.

Depending on whose figures you take, about 15 per cent of people in the broader Australia community are smokers. In NSW jails, according to statistics from the Justice Health & Forensic Mental Health Network, 76 per cent of inmates smoke.

Nor is smoking just a bad personal habit. As the Australian Institute of Health and Welfare noted in its 2012 report on the health and welfare of prisoners: “Tobacco is an integral part of prison culture, acting as a currency within prisons and being exchanged for goods, as debt payment and for gambling.”

So it looks as though big change has happened surprisingly smoothly.

Well, maybe. But there are several caveats to that.

The first comes from Brett Collins, co-ordinator for Justice Action and a spokesman for the Prisoners Action Group, who has an alternative explanation for the smooth introduction of the ban.

There’s been no trouble, he says, because prisoners are still smoking.

“The prison officers on the ground have not been taking away the tobacco,” he told The Saturday Paper the day after the smoking ban came into force.

“They have left people able to smoke at the moment in their cells. At the moment they still have tobacco and papers. It will be a while before it really bites.”

If he’s right – and Collins is well plugged into the system – problems may merely have been deferred until either the tobacco runs out or the nicotine patches do, in a couple of months’ time.

Then again, it may be that the tobacco never runs out, but simply becomes more valuable, given its new status as contraband.

“The fact is, experience shows that prison smoking bans are not very effective,” says Anita Mackay, a researcher in the human rights in closed environments project at Monash University law school, who has studied what happened when smoking was banned in prisons elsewhere.

She cites one prison study in the United States, which showed 76 per cent of inmates continued to smoke despite a ban. Another in Quebec found 93 per cent continued the habit.

“And in NSW, 58 per cent of inmates in juvenile detention continue to smoke despite a ban,” she says. 

“They have tried to keep hard drugs out of prisons and that hasn’t worked either. There is a lot of data showing people still have access to things like heroin in prison. It’s just another example of authorities not being able to stop contraband items.”

Indeed, it is likely to be more than that. Prison staff also have high smoking rates, several times those of the general community. Evidence elsewhere suggests they are thus more sympathetic to tobacco addicts than others, and to turning a blind eye.

While Mackay recognises the importance of discouraging smoking, and particularly the rights of non-smoking inmates and prison staff not to be exposed to second-hand smoke, she thinks a total ban goes too far.

Apart from the personal rights issue – no one else in society is banned from smoking in their own home, which is what a prisoner’s cell amounts to – there are practical problems.

“When you have a situation where smoking is not banned, then a non-smoker is more able to go to staff and say they don’t want to share a cell with a smoker.

“The research in other jurisdictions where it’s been banned shows that smoking tends to continue, but because it’s driven underground the non-smoker in that situation can’t go to staff and say anything. That would be deemed to be dobbing. It goes against the code that operates in prisons.”

Instead of protecting non-smokers, a ban may simply force them to suffer in silence or alternatively cause some to take matters into their own hands.

This shapes as a particular problem in NSW because, not to put too fine a point on it, the state’s prisons are an overcrowded, under-resourced shambles.

That was driven home by John Paget’s report “Full House: The Growth of the Inmate Population in NSW”, tabled in state parliament on May 6.

It also warned of riots, yet oddly received far less attention from the shock media than did the prospect of a riot over smoking, perhaps because it sheeted blame home ultimately to the government’s failure to anticipate the consequences of its law and order campaign.

In the two years to May 2014, the state’s inmate population was up 13 per cent, with the result that prisons are now chronically overcrowded. Almost half the state’s 44 facilities were operating above their capacity. Long Bay jail, for example, was about 70 per cent over capacity.

In some cases, two or three inmates were in cells designed for one. People were being “rotated every 14-28 days in order to meet public health regulations that required such floor space ratios to be temporary”.

Newly remanded inmates – that is people who were unconvicted, 55 per cent of whom will ultimately be found innocent, statistically – were being placed in units with hard-case violent offenders. 

Between 2010-11 and 2013-14, the average time out of cells had fallen from 11.4 to 8.2 hours a day.

More than 82 per cent of inmates were placed in a centre outside their home region, “making the maintenance of family and community ties extremely difficult”. 

The average waiting time to see a GP was more than one month. Instances of self-harm were up 10 per cent. Drug and alcohol programs met barely half of what was needed. Aggression and violence programs met only 27 per cent of the need. Only a third of eligible inmates were able to participate in educational and vocational training.

The litany goes on. Space prevents us detailing its full list of failures.

Paget’s report warned darkly: “Increasing the punitive nature of the custodial experience was a deliberate feature of correctional policy in NSW in 1989, and it resulted in entirely predictable prison disturbances. But many have now forgotten what a prison riot looks like, or understand its costs and consequences.”

The irony, says NSW Greens justice spokesman David Shoebridge, is that the expert advice and evidence shows the expense and the misery is quite unnecessary.

“A number of BOCSAR [Bureau of Crime Statistics and Research] studies show the length of sentences has almost no deterrent effect. A realistic risk of being apprehended and a realistic risk of doing some jail time have a marginal effect on crime, but a far lesser effect than broader economic parameters and social equity measures.

“Increasing jail sentences has no statistical impact on reducing crime. It’s a complete and utter waste of public funds. Crime rates are at a historic low, yet our prison population is at a historic high.” 

It’s all down to politics, Shoebridge says, and the perceived political advantage of being seen to be tough on crime. “We had positive bail reform pass the parliament in 2013, implemented in early 2014 and broadly supported in legal circles, the law reform commission and most stakeholders who actually understood the system,” he says. “It lasted two months.”

As a result of one dubious decision to grant bail, seized upon by the tabloids and shock jocks, it was overturned.

It’s an expensive business, placating the populist media. The most recent NSW budget included $315 million towards addressing jail capacity problems.

Says Shoebridge: “They’ve made allowances in the budget to build more privatised prisons.

“So you have corporations that benefit from jailing citizens. As we’ve seen in the United States, those corporations become major political donors [to] a dysfunctional law and order system in order to maximise profits.”

The new jails are yet to be built. In the meantime, the overcrowding problem in NSW prisons continues to grow.

“It’s just waiting to explode,” says Shoebridge, echoing the findings of the Paget report.

That’s not to say it will happen. But if it does, it won’t be a cigarette that sets it off.

This article was first published in the print edition of The Saturday Paper on Aug 15, 2015 as "Where there’s smokes…". Subscribe here.

Mike Seccombe
is The Saturday Paper's national correspondent.