TY - JOUR
AU - Godfrey,, Barry
AB - Abstract Between 1850 and 1868, a natural experiment in punishment took place. Men convicted of similar crimes could serve their sentence of penal servitude either in Britain or in Australia. For historians and social scientists, this offers the prospect of addressing a key question posed over 200 years ago by the philosopher, penal theorist and reformer Jeremy Bentham when he authored a lengthy letter entitled ‘Panopticon versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared’. This article answers the underlying tenet of Bentham’s question, ‘Which was best prison or transportation?’ by applying two efficiency tests. The first tests whether UK convicts or Australian convicts had higher rates of reconviction, and the second explores the speed to reconviction. 2018 marked the 150th anniversary of the landing of the last convict ship docked in Western Australia, and the end of transportation to Australia. Beyond the local commemorations and events in Fremantle and Perth, there has also been a wider academic re-appraisal of the global transportation system.1 The system of transporting convicts from Britain to Australia was only one part of an expansive trans-national system operated by the European Empires, as Anderson (2016) has shown, and convict transportation to Van Diemen’s Land (VDL, later renamed Tasmania) and New South Wales (NSW) has received a large amount of scholarly attention (Hughes 1987; O’Toole 2006; Maxwell-Stewart and Godfrey 2018; Maxwell-Stewart et al. forthcoming). However, the transportation of nearly 10,000 convicts to Western Australia has received far less attention (Gertzel 1949; Crowley 1960; Anderson 1964; Calvert 1894), and one could argue that the 19th-century British or ‘home’ convict system, which originated in the 1840s was vastly expanded in the 1850s and became the only convict system operating in Britain from the 1870s, has received the least attention of all (McConville 1981; Johnston 2015). However, using digital data held in the AHRC-funded Digital Panopticon (www.digitalpanopticon.org),2 it has now become possible to compare the effectiveness of the two convict systems that, between 1850 and 1868, operated in tandem with each other. The 1853 Penal Servitude Act created a natural experiment when thousands of men convicted of similar crimes could either serve their sentence of penal servitude in Britain or in Australia. Between 1853 and 1868, both in theory and in law, any man convicted of an indictable offence could expect to either set sail for the southern hemisphere or spend years in confinement behind British prison walls—a unique moment in the penal landscape when no man in the dock would know where they would serve out their sentence. For example, in January 1865, two young men walked into the Old Bailey. Thomas Osborne, aged 28 years, was convicted of burglary. He and a co-defendant had stolen some cloth and ribbons from a draper’s shop in Great Dover Street, Newington. Osborne pleaded guilty and was sentenced to seven years’ penal servitude, which would subsequently be served in an English convict prison. Later that day, George Grant, also aged 28 years, pleaded guilty to the burglary of a dwelling house at St. Pancras. He was sentenced to 10 years’ penal servitude, transported on the Belgravia and arrived in Fremantle in July 1866 (as convict no. 8055). For historians and criminologists, the newly digitized data in the Digital Panopticon offer the prospect of analysing the criminal careers for thousands of men like Thomas and George to finally answer a question posed over 200 years ago by the philosopher and penal reformer Jeremy Bentham when he authored a lengthy letter entitled ‘Panopticon versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared’.3 In Bentham’s opinion, his design for the Panopticon prison (which would in fact never be built) offered a better and more rational solution to the problem of criminality than ‘off-shoring’ Britain’s convicts in her colonies. Bentham explained, in a letter to Lord Pelham (http://discovery.ucl.ac.uk/10055298/1/3.%20First%20Letter.pdf), that he had evaluated the transportation system against what he identified as the ‘five ends of penal justice’, finding it falling short in every category. In Bentham’s opinion, transportation provided no example to the British public, and was therefore no deterrent; it did not aid reformation since it did not force the convict to reflect upon their evil acts; it did not incapacitate the convicts but allowed them to roam around at large; there was no compensation for the victim; and last, the system was not economic—because convictism yielded no produce (Bentham 1802: 103). On his last point, Bentham may not have considered the convict labour provided to the Australian colonies to be beneficial to the British Treasury, yet it is clear that the colonial enterprise, in Australia at least, rested and depended on convict labour (Gibbs et al. 2018; Tuffin et al. 2018). However, the publicly avowed aim of penal servitude was to punish and reform offenders and deter re-offending. We now have the data to answer the underlying tenet of Bentham’s question. Which system was most successful in curbing re-offending—convict prison or transportation to Australia? The Penal Colony in the West When NSW and VDL began to grow from a penal colony into a civil society, developing into successful communities and thriving business enterprises, agitation to end the transportation system increased. As a result of the anti-transportation campaigns, in 1840, the transport ships were diverted from NSW to VDL until 1856 when transportation ended there too for similar reasons (Calvert 1894: 17; Statham 1981; Kingston 1988: 161–2). On the other side of Australia, the Swan River settlement, which had never been intended to be a penal colony, was far less successful than the eastern colonies in the first few decades of its creation. Indeed, by the late 1840s, it was struggling (Statham 1981; Gill 2004/16). While transportation to the eastern colonies became less and less tenable, the colonists of Western Australia (renamed from Swan River in 1832) petitioned for convicts to be sent to them in order to build the settlement into a viable colony. Anthony Trollope later acerbically remarked that convictism continued in Australia because the ‘taste for slavery had not yet lost its relish’ (1873: 501). However, Western Australia’s need for labour also suited the British government who were only too pleased to have the prospect of another destination for their convicts (male convicts, as the Western Australian colony never received female convicts, as the eastern colonies had), and so the new penal colony was established in May 1849 at Fremantle. Were the men who were transported to Western Australia similar to the men who would serve out their sentence in the United Kingdom? Based on a small sample, Edgar (2012) suggested that men transported to Western Australia had been convicted of more serious crimes compared with those transported to the eastern Australian colonies, and it has long been a popular trope in Western Australia that the colony had been ‘duped’ into accepting weightier offenders while less-dangerous men remained behind in the British penal estate. The impression was keenly felt that the British government were expelling their most dangerous men to the other side of the world (something they had promised the Western Australian authorities that they would not do). Comparing Like with Like Using a larger sample than that available to Edgar (2012), analysis shows that the two groups of men had similar age ranges and were both drawn from the labouring poor or the marginal working classes. Obviously, the sentences were similar, both sets of men had been given lengthy periods of penal servitude. Of course, sentencing was an idiosyncratic exercise in the 19th-century courts, and, although there is a relationship, there is no direct link between severity of offence and length of sentence that was finally imposed on the convicted—there were a number of factors that might produce different length custodial sentences for apparently similar crimes (age and gender of the defendant, gender and status of the victim, number of previous convictions, socio-political or moral preoccupations of the sentencing Judge and so on). Similarly, the same sentence could be imposed upon a wide range of different offences. However, analysis shows that the offence profile of men sentenced at the Old Bailey between 1853 and 1868 was similar in terms of the offences they had committed. Theft and deception made up approximately three-quarters of the offence profile for both transported convicts (to Western Australia) and those who served out their time in Britain (see Figure 1). Although there may have been some selection at work, the Western Australians desired skilled labour and people who could be made useful, and prisoners who were ill would not board a ship, but the men who served penal servitude in Australia and Britain were effective of the same ilk. Western Australia did not receive more than its fair share of more-serious offenders, and when we compare transported men with those serving their penal servitude in Britain, we are indeed comparing ‘like with like’. Fig. 1 View largeDownload slide Offence profile of men who were either transported to Western Australia or served their penal servitude sentence in England and Wales, 1853–68. Old Bailey Online, 1853–68 (https://www.oldbaileyonline.org). Fig. 1 View largeDownload slide Offence profile of men who were either transported to Western Australia or served their penal servitude sentence in England and Wales, 1853–68. Old Bailey Online, 1853–68 (https://www.oldbaileyonline.org). The only difference between the two groups of men was that most of the almost 10,000 convicts sent to Western Australia were not newly sentenced prisoners; the bulk of those who were sent to Fremantle and Perth had already been held for several years in hulks (mast-less ships) moored in the Thames. The Shift Away from Transportation The ‘backlog’ in transported convicts had been caused by the ending of large-scale transportation to VDL in 1853. This ending of transportation to VDL also had considerable impact on the disposal of men on penal servitude. In 1853, nearly 1,864 men were sentenced to transportation and 500 to penal servitude ‘at home’ (and over 11,000 men were transported to Western Australia that year), but the following year only 325 men were sentenced to transportation, and over 2000 consigned to the British convict estate. Between 1857, when the option of transportation had virtually been removed, and 1867, a mere hundred men were sent to serve their time overseas.4 During the same period, however, over 26,000 men were sentenced to spend their time on penal servitude on home soil.5 Overall then, a relatively small number of people were sentenced to transportation after VDL had closed for business. This reduction was compounded by the 1853 Penal Servitude Act, which stipulated that shorter terms of ‘penal servitude’ were to be served in Britain, further reducing the number of men who were actually transported. Fewer than 300 men were transported from England and Wales between 1854 and 1856, just 224 in 1859 (Shaw 1966: 355). The British government then suspended the regulation that had stipulated that convicts serve half their time on hulks or inside prisons before sailing south, and there was an increase in convict traffic from 1861 to 1868 when the last convict ship docked in Fremantle. The Western Australian Convict System Western Australian convicts passed through a number of progressive stages journeying towards release, each with a larger measure of autonomy and liberty (Kerr 1984; Braithwaite 2001). Following a period in Fremantle Depot and serving on the work gangs that were constructing parts of the colony, convicts were licensed with a ticket-of-leave as a form of conditional early release. Even when in receipt of their ticket—which they were required to carry around with them for inspection by police constables—convicts were confined to a geographical area, were required to make regular reports to the local resident magistrate, had restrictions on their drinking of alcohol, could not apply for civil service posts or could serve on juries (although they were permitted to prosecute cases and act as witnesses in court). They were subject to curfew at 10 pm, which Vivienne (1902: 39) says was still in operation in the 1890s, when very few ticket-of-leave men would still be wandering around the streets of Perth and Fremantle, and they remained under the supervision of the police (in a similar way to the British convicts who were subject to habitual offender legislation passed in the 1860s and 1870s). However, ticket-of-leave holders were eligible to earn money on assignment with local employers. Assigning convicts to employers had been considered a failure in the eastern Australian colonies and was discontinued in the 1830s (Winter 2013). Nevertheless, the scheme was popular in the west, as a way of supplying labour to geographical areas where free labour would not venture (usually geographically dispersed settlements in Western Australia). Because they had already served time in British prisons or prison hulks, approximately a quarter of the convicts had already been issued with tickets-of-leave on entry to Western Australia, and so they were able to take employment assignments from the start of their life in the colony (Crowley 1960: 33; Kercher 1995: 41). By December 1852, over half of the transported men were working for private employers (Shaw 1966: 355). However, when the government removed the stipulation that convicts had to spend half their sentence in Britain prisons before being transported, new arrivals were forced to spend more time on road gangs and government work before being eligible for tickets-of-leave (Kercher 2003, 548). When the period under ‘ticket’ had been successfully completed, convicts were issued with Certificates of Freedom. The ticket-of-leave was only an intermediary stage towards freedom or emancipation. Convicts who had their tickets revoked (for committing new offences or breaching some regulations) were required to spend additional time in the Convict Establishment before being re-issued with another ticket. Their perambulations up and down the progressive stages varied, of course, on ‘offences’ being detected, and the willingness of the authorities to take action (bribery and corruption must have been a factor). As Marshall notes, the Australian progressive system ‘was frequently circumvented in the pursuit of productivity goals. Although Fremantle’s labor hierarchy was officially conceptualized as a promotional pathway for the well-behaved and a descent mechanism for incorrigibles, in practice the degree of punishment a convict suffered depended more upon the skills he possessed than the level of reform he had achieved’ (2018). So, it could take many goes around the conditional-leave merry-go-round before convicts finally left the system. As ‘expirees’ they were then considered to be free, although men sentenced to transportation for life were not allowed to return back to their motherland. Penal Servitude ‘At Home’ In anticipation of transportation ending, British convict prisons had been increasing their capacity from the 1840s. Existing penitentiaries had extensions added to create more beds, and new public works establishments were constructed (Brodie et al. 2002: 122–5; Johnston 2015: 106–13). Three years before VDL refused new convicts, the 1853 Penal Servitude Act replaced sentences of 10–14 years transportation to 6 to 8 years penal servitude in the United Kingdom; 7 to 10 years transportation was replaced with between 4 and 6 years penal servitude; and only those sentenced to over 14 years transportation could still expect to be transported. In 1857, the calibration changed once again; longer periods of penal servitude were imposed on people who would previously have been transported. The tide had turned. These changes were reflected in the growth of the British convict population, which had averaged around 6,000 between 1856 and 1868, but with the end of transportation, rose to nearly 10,000, before falling back in the late 1880s and 1890s (see Figure 2). Fig. 2 View largeDownload slide Number of convicts in England and Wales, 1856–1914. Judicial Statistics, 1856–1914. Fig. 2 View largeDownload slide Number of convicts in England and Wales, 1856–1914. Judicial Statistics, 1856–1914. As with their Western Australian counterparts, British convicts found themselves entering into a system structured with progressive stages. Penal servitude in the United Kingdom involved just three stages during the 1850s and 1860s, the first of which was designed to isolate convicts from their environment so that they could focus on their moral redemption. They were left in complete silence for a number of months with only a meagre diet and the spiritual guidance provided by the Prison Chaplains to sustain them. When taking exercise, or in chapel, prisoners wore masks so that they could not see or talk to other inmates. In the public works stage, British convicts then laboured on dock-building schemes, fortifying the coastline defences, quarrying stone, or by aiding the running of the prison in the laundry, kitchens, or prison farms. The work was hard, the conditions dangerous, and accidents frequent (McConville 1981: 381–431; Johnston et al. 2013). The last stage was when the convict was issued with a Ticket-of-Leave and given conditional licence (after 1857 when the scheme was introduced). As previously noted, ticket-holders in Western Australia were restricted to the places they could go, the times they could wander the streets, the type of behaviour that was permitted (not too drunk, not too resistive to authority, not too louche), but they were allowed to own property, to earn wages and to marry, in the same way as were British convicts released on licence (Shaw 1966: 355). Both Australian and British convicts could progress through the stages with good behaviour or they could fall back to a former stage if they resisted the system. As noted earlier, the Western Australian system was a supply-and-demand labour system, which sent skilled workers to the market as soon as was practically possible. The stock-in-trade of the British system were those people for whom the market had no need or use. The Australian system was driven by labour-need, but the British system was focused on controlling surplus labour—not extracting labour from convict bodies but removing ‘unproductive’ labour from the market (Melossi and Pavarini 1981). Once back at liberty, in the United Kingdom, released convicts were closely supervised, as it was assumed that they would soon be back in trouble. From 1864, prisoners released from prison had rigorous reporting conditions, and from 1869, any prisoner subject to habitual offender legislation could be stopped at any point by a police constable and asked to prove that they were not living a dishonest life. Those deemed to be deviating from the path of honesty could be imprisoned for up to 12 months by a magistrate. However, in tandem with official measure, informal sanctions applied. Employers were often told by police officers that their new employee had a record, word spread around the neighbourhood and so on. Not only was life made uncomfortable for released prisoners, but capacity for gaining employment and securing social opportunities was degraded (Godfrey et al. 2010). The Problem of Recidivism The systems were also intended to produce a regime that would deter potential offenders from committing crimes and to further convince existing inmates that they would not want to return to custody (McConville 1998). When transportation was still the main punishment imposed by the courts, the problem of recidivism was moot for the British government. Despite common tropes about leopards never changing their spots, and old offenders being habitual thieves and drunks, conceptions of the recidivist offender were undeveloped in Britain until the 1850s. When convicts on tickets-of-leave were released to wander British cities rather than the streets of Sydney and Hobart, concern grew about the ability of prisons to bring about the reform of their inmates. By the time transportation was coming to an end, there had been a number of ticket-of-leave scares; reoffending was beginning to be seen as an acute, indeed almost intractable, problem (Bartrip 1981; Stevenson 1983; Sindall 1987; 1990). This feeling intensified with the publication of annual statistics of recidivism. From the mid-19th century, the British government became assiduous in collecting criminal justice process data, and increasingly used them as a tool of government (Shoemaker and Ward 2017). Statistics were recruited to inform penal policy and drove many of the reforms to the criminal justice system that proliferated in the later 19th century. One measure of success and failure were the recidivism figures. While transportation was still in operation, the British State cared little for measuring recidivism, and only when the prison estates grew in both the metropole and the colonies, did recidivism come to ‘count’. Indeed one could argue that the concept of recidivism was paid very little attention by governments, penal theorists and proto-criminologists until transportation came to an end. The annually published judicial statistics showed an unsettling increase in the numbers of repeat-prisoners from the 1850s to the 1870s, and by 1885, the proportion of recidivists had overtaken the proportion of first-timers (Godfrey et al. 2010). Prompted by the alarming statistics, public and media conceptions imagined recidivists as predatory repeat-burglars, incorrigible garrotters and inherently violent offenders—men who persisted with lives of serious violence. However, the published statistics were not sophisticated enough to reveal whether this was true or not—were recidivists being repeatedly imprisoned for committing serious or non-serious offences. The majority of people who were captured in contemporary recidivist statistics (see Figure 3) may have been low-level habitual offenders who experienced repeated short-terms of imprisonment. These kinds of habitual offenders did not become the target for law and order campaigners until the 1890s. Excessive use of alcohol, public drunkenness and ‘roughness’ were not only very prevalent among ex-prisoners and convicts but was also fairly endemic in society. In the later 19th century, when moral entrepreneurs and the Temperance Movement targeted male working-class violence and female drinking (Braithwaite 1989, Wiener 1990; Davies 1999; Morrison 2009; Archer 2011; Stafford 2018), concepts of rehabilitation may have embraced sobriety as a measure of ‘going straight’. By then, public drunkenness was seen as a moral failing rather than part of normal working-class life and leisure as it had been in the 1850s and 1860s. In the mid-century, drinking and masculinity were so closely bound together that it would have been a utopian fantasy to aim for abstinence among the working classes (or, indeed, among ex-offenders). Just under 45,000 people were convicted of being drunk and disorderly in England and Wales in 1857. That figure doubled over the following decade, and by the First World War, it had reached over 180,000 convictions.6 At the same time, there were nearly 10,000 convictions for drunk and disorderliness in Western Australia (which had a population of around 184,000).7 Drunkenness, fighting and low-level public order incidents were ‘common-or-garden offences committed by men across the British Empire’ (Godfrey and Cox 2008: 243). Rather than measuring the number of everyday-offending convictions, if the Victorians had really wanted to investigate whether prison worked, and for whom (and if we wish to re-pose that question in regard to imprisonment and transportation today), a better measure is the prevalence of repeated serious offending. Today, we have the data available to do what the Victorians could not. Fig. 3 View largeDownload slide Numbers of prisoners with previous committals to prison, 1856–1914. Fig. 3 View largeDownload slide Numbers of prisoners with previous committals to prison, 1856–1914. Data Today, we have the data available to do what the Victorians could not. We now have sufficient data to examine the rate of recidivism for a large group of male convicts and ex-convicts for both the United Kingdom and Western Australia. England and Wales Licence data For the analysis of British convicts’ reconviction rates, the primary sources were the caption documents held in the National Archives (PCOM 3 and PCOM 4), now digitized. The bundle of documents that followed each individual convict around the system while they were under sentence recorded antecedent offending history, behaviour inside the prison, and also any offences committed while on the period of their conditional licence. The Digital Panopticon contains digitized data on 3,000 male convicts, who were at some point in their lives convicted at the Old Bailey and were given a licence between 1853 and 1887. Western Australia Magistrates Court registers Records of all cases dealt with at Fremantle Magistrates Court in the years 1854, 1870 and 1880, all held in the State Archives of Western Australia, were entered into an excel/SPSS spreadsheet, and categorized by offence (minor violence, minor property, major violence, major property, public order and regulatory) and by status of defendant (free men, expirees, ticket-of-leave). The database has 5,060 entries. Convict records The digitized Western Australian Probation Registers, Character Books and General Registers recorded the name and convict number of nearly 10,000 transported convicts. By linking the data at nominal level, these records provide information on each convict’s age, crime for which they were transported, details of previous convictions, ship they came to Western Australia in, marital status, number of children they had, where they were assigned to, literacy level and ‘character’ prior to and during sentence.8 It is possible to ascertain the ‘offences’ they committed while subject to convict regulations (such as refusal to work, insubordination and possession of contraband) and because the General Register continued to be updated until the convict received their Certificate of Freedom, died, or was transferred to another institution (many convicts were housed in hospitals and asylum, especially as they became elderly and infirm in a colony that had no poor relief outside of institutionalization), they continued into the post-transportation period (the 1870s and 1880s).9 Fremantle Prison records The Fremantle Prison registers (1858–68) held in the State Archives of Western Australia have been collected and transcribed.10 These records contain details of ‘status’ (convict or free settler), as well as their name and age. Because of the years they cover, analysis of these records has extended our knowledge of re-offending up to the 1890s and also allowed a comparison between convicts transported to Western Australia and those who arrived as free men. To analyse whether the number of convicts entering the courts and prison was proportionate, population data were extracted from the Annual Reports of Western Australia (1842–1902). Supreme Court records Registers of the Supreme Court of Western Australia (1861–93) in the State Records Office of Western Australia have been collected and transcribed. These records contain details of ‘status’ (convict or free settler), as well as their name and age. Convicts and free settlers were identified by their status and also by their assigned ethnicity/cultural identity, i.e. ‘Native’, ‘Chinaman’ and so on.11 Excluded data In order to make a true comparison, certain data were excluded from the database. Status offences Many convicts were prosecuted offences, which only applied to people serving sentences (Finnane 1997: 20). For example, in 1870, nearly 500 (473) serving convicts were convicted of absconding from their masters or other breaches of ticket-of-leave regulations (1870 Western Australia Reports). Similarly, in the United Kingdom, convicts were regularly punished for breeching prison rules. The ESRC project ‘Costs of Imprisonment’ found that over half of all British convicts committed prison offences.12 All of these offences are recorded on the penal record, but there is no settled view on whether these offences should count as re-offending. It seems clear that someone who damages a part of their cell, sings during divine service, talks during exercise periods and so on is only kicking against restrictive prison rules. None of that sort of behaviour would warrant prosecution by the authorities if it had not involved prisoners. Master and Servant Master and Servant legislation was used to enforce contractual obligations and discipline workers in both the United Kingdom and Australia. Although there were times and places when the legislation was used extensively in England (against the textile workforce in Yorkshire from 1777 to 1840 in particular, see Godfrey and Cox 2014), but it was disproportionally used in Australia throughout the whole 19th century on a routine basis. In order to make a closer comparison between the two sets of ex-convicts, master and servant offences were stripped out of the database. Research Methods The most comprehensive analysis of reconviction would be achieved by searching for the name of every Western Australian convict (nearly 10,000) and a similar number of UK convicts, searching every extant petty sessions and higher court record for evidence of reconviction, and constructing a whole-life offending record (in the same way that Godfrey et al. 2007; 2010) did for offenders in north-west England 1880–1940) or Johnston et al. did for 600 English and Welsh convicts. This would take a significant amount of time and labour, even if it were possible. Court records are not complete for the United Kingdom, newspapers in the United Kingdom and Australia do not report every case, identification is difficult, and the collecting a significant sample would be virtually impossible. It is therefore very difficult to trace re-offending across the whole lifetime for very large numbers of UK convicts. Nevertheless, the British and Western Australian licence/ticket-of-leave records provide sound data for reconvictions during the period each convict was under licence, and the Fremantle Prison/Supreme Court records facilitate analysis of reconviction when the licence period had concluded. The combined strength of data in Western Australian records is very robust. For example, in Fremantle Prison registers, 545 (36 per cent) convicts gave their convict number to the prison authorities; 804 (53 per cent) gave their ship name; and 1,394 (92 per cent) revealed their age. In the Supreme Court records, 857 (92 per cent) gave their convict number, and only two convicts refused to give the name of the ship they arrived on. Only eight convicts did not reveal information (other than their name) in either set of records. So, by linking the data from both sets of records together across the categories of ‘name’, ‘age’, ‘convict number’ and ‘ship name’, it was possible to identify 96 per cent of the convicts (out of nearly 1,500 convicts and expirees, less than 50 remained unidentified).13 This is a remarkably high identification rate and made it possible to construct two substantial databases. The first database contained details of all the men who had received a sentence of transportation and were sent to Western Australia between 1850 and 1868 (n = 9,434) as well as all the men who had received a sentence of penal servitude at the Old Bailey between 1853 and 1868 who stayed ‘at home’ in English convict prisons (n = 1,938). The second database contained details of everyone sentenced at Western Australian Supreme Court between 1861 and 1893 (n = 1,684) and everyone imprisoned in Fremantle Prison between 1858 and 1868 (n = 2,052). By analysing these two databases, it was possible to make a comparison between transported convicts and those serving their penal servitude in the United Kingdom in terms of rate, and also speed, of reconviction. Additionally, it was also possible to compare the offending and reconviction records of both convicts and free settlers to Western Australia. Findings: Reconviction Rates UK data The records show that nearly half (48 per cent) of licence holders were reconvicted of further offences during their period ‘at large’ on licence. The vast majority of these people had their licence revoked and were returned to prison to serve out the remainder of their time, plus any extension of their sentence for the new offence. This fits with previous research by Johnston et al. (https://www.researchcatalogue.esrc.ac.uk/grants/RES-062-23-3102/read) who analysed re-offending in men and women released on licence between 1856 and 1887. That study found that 80 per cent of the 600 ex-convicts in their sample were reconvicted at some point in their lives (some were highly convicted).14 Magistrates Courts data Analysis of Magistrates Court records confirmed the research findings of Edgar (2012), Battye (1924) and Shaw (1966). Their respective studies found that approximately one in every three ticket-of-leave holders were reconvicted, mostly for drunkenness. Only a fifth were reconvicted of serious offences. Three-quarters of defendants at Fremantle Magistrates Court were convicts or ex-convicts, and only a quarter were free settlers. Convictions for drunken disorder, and breeches of convict regulations predominated, with most of the low-level offences being committed by a small number of habitual offenders. On average, there were 1.6 offences per transported man, with a small number racking up a considerable number of convictions for drunkenness and vagrancy after they arrived in the colony. As Godfrey and Cox (2008) noted, transportation hit many men so hard that all they were left with was a washed-up life, alcoholism, drifting through life and through the colony as vagrants and occasional inmates of the prison and the asylum. Not surprisingly, many of these men fetched up in the magistrates on multiple occasions. Expirees were actually four times more likely to be vagrants than free settlers during the convict transportation period (Fremantle Prison Registers, 1858–68). Supreme Court data Just over 8 per cent of men who arrived in the colony between 1850 and 1860 appeared in the Supreme Court before 1900. We would expect the figures from 1861 onwards to be higher, since the analysis was conducted on data from records which start in 1861, and that is the case. Nearly 1 in 10 men who arrived in the colony between 1861 and 1867 appeared in the Supreme Court before 1900 (see Figure 4). Fig. 4 View largeDownload slide Percentage of convicts, by year of transportation, who were convicted in the Supreme Court between 1861 and 1900. Note that Figure 4 does not indicate that they were reconvicted in the year they arrived. Fig. 4 View largeDownload slide Percentage of convicts, by year of transportation, who were convicted in the Supreme Court between 1861 and 1900. Note that Figure 4 does not indicate that they were reconvicted in the year they arrived. Over three-quarters (77 per cent) of convictions against convicts were for property offences, as opposed to 42 per cent of cases against free settlers. Free settlers were less likely to commit acquisitive crimes as they were more likely to arrive in the colony with both capital and the means and skills to make money. Desperately poor convicts with few prospects were much more likely to commit property offences. Around a sixth (15 per cent) of cases against convicts involved violence, as opposed to 50 per cent prosecutions being against free men. This disparity is not as surprising as it first appears. Half of prosecutions for violence were prosecutions of ‘aboriginal natives’ (recorded as free men in the records), rather than prosecutions of ‘free settlers’—making it a little clearer. Indigenous men were disproportionately vulnerable to arrest and prosecution in the Supreme Court (especially if the victim was European). We should not forget, however, that indigenous communities also suffered considerable violence (collectively through the colonial experience, and as victims of individual acts of violence). Fremantle Prison data Shaw suggests that the Western Australian consignment of convicts was too well behaved to fill Western Australian’s prisons. However, by the 1860s, it is apparent that they were entering Fremantle Prison (which opened in 1855) in large numbers. In fact, just under three-quarters (74 per cent) of Fremantle Prison’s inmates between 1858 and 1868 were transported men. William Smith (convict number 13) was one of seven men who were still offending in the 1860s, having all arrived on the first convict transport, the Scindian, in 1850; his shipmate John Larcombe was still being convicted in the 1880s. The ‘Right’ Proportion of Recidivism? The last analysis that was made possible with this data was to compare the reconviction rates of transported convicts with conviction rates among free settlers. Because we do not know the date when each free settler arrived, it is not possible to assess speed to conviction data. The only way to compare the propensity of both free and transported men to commit offences is to examine whether each group was proportionately or disproportionately represented in the criminal justice data. In 1854, just over half of the population of the colony were convicts (54 per cent) and just under half (46 per cent) were free settlers or children of free settlers (Van Den Driesen 1986a; 1986b). Therefore, we should expect roughly half of the people appearing at court to be free settlers and roughly half to be convicts. By the 1860s and 1870s, the older convicts, those who had been transported in the 1850s, were thinning. More than half of defendants should be free settlers. By the 1880s and 1890s, many of this cohort of convicts were dying out, and the convict population was generally diluted due to the massive waves of immigration that followed the finding of gold in the west. We should expect ex-convicts to make up a very small proportion of those appearing at court. However, it is not possible to gain a very accurate assessment of the convict population as annual figures were not kept. For the creation of Figure 5, the estimated convict and expiree population has been calculated by the cumulative addition of numbers of transported men from 1850 to 1868, then reduced by an estimated annual attrition rate (through death or migration to other colonies or emigrating abroad) of 10 per cent. Given that the colony was a dangerous place, it is entirely possible that the attrition rate was much higher, and therefore, it would be reasonable to assume that the convict population in Figures 5 and 6 is, if anything, an over-estimate. Fig. 5 View largeDownload slide Estimation of expiree pop in Perth. Fig. 5 View largeDownload slide Estimation of expiree pop in Perth. Fig. 6 View largeDownload slide Proportion of convicts and expirees in Western Australia, in the Supreme Court, 1861–68, and in Fremantle Prison, 1850–93. Fig. 6 View largeDownload slide Proportion of convicts and expirees in Western Australia, in the Supreme Court, 1861–68, and in Fremantle Prison, 1850–93. If the picture in Figure 6 is accurate, convicts and expirees were significantly over-represented (by nearly 100 per cent) in the Fremantle Prison registers and Supreme Court records. Over 80 per cent of people sent to Fremantle prison between 1858 and 1868, and 60 per cent of men appearing in the Supreme Court, had arrived by way of a convict ship. Re-offending was rife in both Western Australia and Britain. In the United Kingdom, 8 out of every 10 released convicts were reconvicted; nearly half were reconvicted while on licence. More than 1 in 10 of all of the transported men were reconvicted in the Supreme Court after arrival in Western Australia, 75 per cent of cases heard by Perth magistrates in 1854 were against transported men, and many expirees were still being prosecuted in the lower courts in 1880s (Godfrey and Cox 2008). This was 12 years after transportation to Western Australia had ended. In fact, 4 per cent of convictions in 1880 were against men transported between 1850 and 1855—more than 30 years after they had landed in the colony. According to the latest available figures (2014/1515), in Western Australia today, 38 per cent of released prisoners reoffend, and, in the United Kingdom today, 59 per cent of prisoners on short-term sentences reoffend.16 So, even against very concerning modern re-offending statistics, both convict systems operating in the mid to late 19th century look far worse. Findings: Speed to Reconviction Using the same data and data sets, we can also measure speed to reconviction (the time elapsed between capacity to offend and reconviction). Speed to reconviction should be slower for the most effective regime. It has been possible to compare the speed to reconviction for four groups. The first (A) were UK habitual offenders who had committed more than two indictable offences, whose offending record was recorded as part of the habitual offender legislation to which they were subjected (long sentences with an extended period of police surveillance after release). The second (B) are a sample of convicts who were released on licence, then had their licences revoked due to a reconviction. The third (C) are the convicts who appeared in the Western Australia Supreme Court, and the last (D) are men who served time in Fremantle Prison. The results are interesting (see Figure 7). Fig. 7 View largeDownload slide Speed to reconviction in the United Kingdom and Western Australia. Figures for Habitual Offenders taken from sample of MEPO 6 and PCOM 2 both held in the National Archives, London, with some records transcribed as part of the Digital Panopticon. Fig. 7 View largeDownload slide Speed to reconviction in the United Kingdom and Western Australia. Figures for Habitual Offenders taken from sample of MEPO 6 and PCOM 2 both held in the National Archives, London, with some records transcribed as part of the Digital Panopticon. In the United Kingdom, of those who reoffended after release from custody, approximately half of British ex-convicts subject to habitual offender legislation (under the 1869 Habitual Offenders Act and 1871 Prevention of Crimes Act) were reconvicted within a year of release from prison. It is not surprising that men subject to its provisions quickly reoffended. Their life chances were slim, and they were subject to close scrutiny by the police, and they already had significant antecedent histories (Godfrey et al. 2010, Kehoe et al. forthcoming). For convicts who were not subject to the provisions of habitual offender legislation, speed to reconviction was also high. Nearly 4 in 10 (39 per cent) ex-convicts also reoffended within a year of release; over 6 in 10 were reconvicted within two years (64 per cent). In contrast, during their first 12 months of release, only 4 per cent of Australian convicts were convicted of serious offences at the Supreme Court (although many would have been convicted of minor offences, see Godfrey and Cox 2008), and only 4 per cent were imprisoned in Fremantle prison. Recidivist British convicts got down to criminal work quickly. Indeed, British convicts were over ten times as likely as Western Australian convicts to be reconvicted in the first two months of their release from incarceration (see Figure 7).17 The Western Australian system performed much stronger in terms of speed to reconviction—although the system seemed not to be able to curb offending over the long term. There was a long tail of re-offending. Whether this can really be seen as a sign of the success of the Australian convict system is somewhat moot. Conclusion In the 200 years since Bentham wrote to Lord Pelham in 1802, there have been numerous attempts both to explain and to recruit the history of punishment to support different theoretical perspectives. The rise of the prison, if not the decline or transportation, has provided rich evidence, although little consensus as to why particular forms of punishments take shape. Transportation has been described by some as a labour-supply scheme and as a kind of engine for desistence, a system that laundered criminals into valuable colonial entrepreneurs. In comparison, imprisonment has been characterized as a system for warehousing the poor—not so much providing a reserve pool of labour, but an unwanted residuum of people who could not be made useful to capitalism. Rather than facilitating rehabilitation, prison has been long condemned for ‘making bad people worse’. However, in the last 20 years, researchers have changed the focus away from the regimes and penal institutions themselves, and the experiences of prisoners while under sentence, towards processes which took place away from the sites of punishment (resettlement, reintegration, desistence and persistence). Researchers have identified the mechanisms by which released prisoners avoided re-offending through relationship-formation, gaining education, training and employment, and the support of family and peers (Farrall 2002; Laub and Sampson 2006). Historians have followed this lead to replicate similar results (Godfrey et al. 2007; 2010; 2017; Cox et al. 2014; Rogers 2015). Had time and resources allowed, it would similarly have been possible to correlate the court and prison data used in this article with records of individual convicts getting married, having children, securing employment. We may then have found evidence to further confirm modern desistence theories. We would then have been in step with many of the historical studies of the lives of Australian convicts. Researchers have uncovered startling success stories for individual Australian convicts who made relationships, made money and made a good life in their new homeland (Hasluck 1959; Erickson 1983; Dunstan 2000; Maxwell-Stewart 2001; Maxwell-Stewart and Hood 2001; Hyland 2004). There are, however, very few success stories for British convicts. This dichotomy may reflect a conscious or unconscious keying into the two cultural and national identities that developed in the 19th century. Whereas Australia’s foundational myth insisted that, once convicts had left behind class-bound and declining ‘Old England’, the ‘Lucky Country’ rewarded their energy and ingenuity with bountiful natural resources, a ‘clean slate’ and a second chance. British narratives of imprisonment, however, seemed to portray a country that was ‘stuck with’ a growing convict population who made no contribution to the economy (rather the convict estate was seen as a significant drain on the Treasury) and whose recidivism was a constant public and media concern. British and Australian convicts were therefore released into different social, cultural and economic environments—structural as well as individual desistence and persistence factors were at work in both countries (Farrall et al. 2009). The popular belief that ex-prisoners were likely to reoffend, in itself, might have produced higher rates of recidivism in the United Kingdom. The culture of surveillance, especially for habitual offenders, was significant and may have exceeded the culture of control over Australian released convicts. While British ex-convicts struggled to reintegrate themselves back into the economy, the opportunities for securing employment (and in some cases rising rapidly through the social and class structure) were much greater in Australia. Nevertheless, the differences between the two groups should not be over-stated. Both Australian and British convicts were highly recidivist. The research findings highlighted in this article suggest that numerous, but statistically quite small, individual examples of Australian convicts ‘making good’ may have blinded historians and criminologists to the reality of life for the majority of transported convicts. Despite the notable successes of some convicts to reform, it is quite certain that the majority of Western Australian and UK convicts and expirees continued to appear in the courts for both petty and serious offences. If they did remake their lives, form relationships and secure employment, many still did so while managing an offending career at the same time. Given the high rates of recidivism in both systems, with a slightly lower rate for transported convicts, are there any lessons that we can learn from this historical data? It would be simplistic to make too close a comparison between the historical and the modern. Western Australian probation was different from modern probationary schemes, and processes of desistence are historically contingent. It would also be a mistake to label one system the winner in some sort of historical ‘Convict Ashes’ in a context when both systems so evidently failed. Western Australian convicts had lower reconviction rates and were slower to be reconvicted than British convicts, but the statistics for both systems are pretty damning. In the final assessment, we would say that both the Australian and the British convict systems were ineffective attempts to deal with complex socio-economic problems; ones that still consumes policy-makers today. Neither system achieved one of their main aims of significantly curbing re-offending. Many people who went through ‘the system’ (in the United Kingdom and in Australia) were reconvicted and many for serious offences. Alongside our analysis of the different rates of reoffending in each system of punishment, we should first note their remarkable efficiency in manufacturing such high rates of recidivism. Acknowledgement The author thanks John Braithwaite, Lucy Williams and Kim Price for their comments on an earlier draft. References Anderson , P . ( 1964 ), Economic Aspects of Transportation to Western Australia . Melbourne University Press. Google Preview WorldCat COPAC Anderson , C . 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Google Scholar Crossref Search ADS WorldCat Footnotes 1 See http://www.stateheritage.wa.gov.au/about-us/education-research-events/heritage-media/heritage-in-the-news/heritage-in-the-news/2018/01/19/convict-transportation-to-western-australia; http://fremantleprison.com.au/whats-on/transportation/; https://www2.le.ac.uk/departments/history/research/grants/CArchipelago. 2 See https://www.digitalpanopticon.org/About_The_Project. 3 See http://oll.libertyfund.org/titles/bentham-the-works-of-jeremy-bentham-vol-4. 4 Annual Judicial Statistics, 1857–67. 5 Just 420 were sentenced to death during this period. Another 124,104 were sent to prison for less than two years; nearly 300 youths were sent to reformatory schools; and all of these were dwarfed by the 156,000 who received fines rather than custodial sentences, Annual Judicial Statistics, 1857–67. 6 Judicial Statistics, 1857–67. 7 Western Australia, Report, 1860. 8 See https://www.digitalpanopticon.org/WA_Character_Books_and_General_Registers_1850-1868. 9 Western Australia retained its status as a penal colony until 1886 (Gibbs 2006). 10 The lengthy and labourious task of transcribing data from Fremantle Prison and Supreme Court records was completed by Dr Jane Richardson. 11 One hundred and seventy-nine indigenous men were also prosecuted in Supreme Court records; 127 (72 per cent) indigenous defendants were convicted, 38 of those were executed and 90 were confined in Rottnest Island (rather than Fremantle Prison). 12 https://www.researchcatalogue.esrc.ac.uk/grants/RES-062-23-3102/read. 13 Erickson and O’Mara (1994) was also useful. 14 https://www.researchcatalogue.esrc.ac.uk/grants/RES-062-23-3102/read. 15 https://www.sentencingcouncil.vic.gov.au/statistics/sentencing-statistics/released-prisoners-returning-to-prison. 16 http://open.justice.gov.uk/reoffending/prisons/. 17 Some may have been reconvicted after expiration of their licence period (usually between 12 and 24 months) and would not show in reconviction figures, see https://www.researchcatalogue.esrc.ac.uk/grants/RES-062-23-3102/read. © The Author(s) 2019. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Prison Versus Western Australia: Which Worked Best, the Australian Penal Colony or the English Convict Prison System?
JF - The British Journal of Criminology
DO - 10.1093/bjc/azz012
DA - 2019-08-12
UR - https://www.deepdyve.com/lp/oxford-university-press/prison-versus-western-australia-which-worked-best-the-australian-penal-nGl2Tg0Rs4
SP - 1139
VL - 59
IS - 5
DP - DeepDyve
ER -