Opinion: It’s not just jail for George Pell, this is torture

Monday 18 November 2019 by Mirko Bagaric, Bachelor of Criminal Justice and Criminology

Illustration from Mirko Bagaric oped for The Australian.

Illustration: Eric Lobbecke

In summary

  • Opinion piece for The Australian by Mirko Bagaric, Professor of Law, Swinburne University of Technology

People should be sent to prison as punishment, not for punishment. Research shows that prisoners subjected to long periods of solitary confinement often suffer irreparable long-term mental and physical harm. George Pell is being subjected to modern-day torture by his prison conditions. They are grounds for a strong argument that he should be granted bail pending the outcome of his appeal to the High Court.

Pell has reportedly spent all of the time he has been incarcerated (almost nine months) in solitary confinement at the Melbourne Remand Centre. He is let out of his cell for just an hour a day. That such a high-profile Australian is being subjected to these brutal conditions should be the catalyst we need to start the debate to abolish the use of this form of incarceration for all Australian prisoners.

The main purpose of prison is to protect the community from offenders and to impose punishment commensurate with the seriousness of their crimes. The principal hardship is the loss of ­liberty. Of course, there are incidental hardships that necessarily follow from the loss of liberty, such as the inability to associate with family and friends and severe work and study restrictions.

However, the pain of imprisonment should not extend to deliberately and systematically subjecting prisoners to inhumane conditions that will foreseeably have profound adverse effects on them. Yet this is what hundreds of prisoners experience in Australia. These conditions are either imposed by placing certain prisoners in solitary confinement or, more typically, moving inmates into ­supermax wings, effectively prisons within prisons. There are at least eight of them in Australia.

There is no consistency regarding the daily regimes of prisoners in supermax confinement, but it can include being locked in a cell up to 23 hours a day. When out of their cell they move to what is, in effect, another (larger) cell where they normally have contact with no more than one other prisoner. Often there is no fresh air, direct sunlight or educational facilities, and only limited visiting rights and access to communications.

Prisoners are generally placed in isolation or supermax conditions for disciplinary reasons or supposedly for their own protection, as is the case with Pell.

Studies show supermax confinement — particularly isolation of more than 15 days — has long-term detrimental effects on mental health of prisoners, including insomnia, panic, hallucinations, suicidal impulses, feelings of hopelessness and paranoia. The highest rates of prison suicide and self-harm occur among those in solitary confinement.

When inmates are placed in isolation or supermax units, they are also at risk of physical harm. Lack of exposure to sunlight can cause vitamin D deficiency, making inmates more susceptible to falls and fractures. The near total absence of movement and exercise exacerbates conditions such heart disease, diabetes and arthritis. The physical harm caused by solitary confinement often results in long-term disabilities and additional longer-term healthcare costs. This is especially the case with elderly prisoners. Pell is 78.

Now Pell’s appeal has been referred to the Full Court of the High Court, his prospects of bail are stronger. Appeal bail will be granted only in exceptional circumstances (Marotta v R [1999] HCA) and it is a hard test to satisfy. However, an important relevant factor is whether an acquittal would make the benefit of the acquittal hollow.

It is likely the circumstances of Pell’s confinement have already caused him significant psychological and physical harm. The extent of his suffering is likely to be exacerbated the longer he remains in isolation. That harm is probably irreversible.

The strength of any bail application would be enhanced by the fact there is a reasoned dissenting judgment by Justice Weinberg, and that Pell is not a flight risk.

Supermax and isolation units should be abolished. We can protect prisoners from other prisoners in ways that do not involve barbaric conditions: employ more prison officers. The additional cost would be less damaging than the moral stain stemming from the deliberate infliction of intense, ­unnecessary pain on inmates.

Professor Mirko Bagaric is Director of the Sentencing and Criminal Justice Project at Swinburne University. This opinion piece was orginally published in The Australian