There is something breathtaking about the audacity of it.
A former prosecutor with the Director of Public Prosecutions, now publicly aligned with reformist language about decarceration and the “failures” of imprisonment, while simultaneously advertising availability to prosecute. On one hand, we are told that “jailing is failing,” that the “system is broken”, that prisons do not deliver safety. On the other, briefs are accepted to secure convictions that feed the very machinery said to be failing.
Hannah March, you cannot stand in your position declaring that incarceration is a social disaster while walking into court to ensure it continues.
Justice Reform Initiative (JRI) who employ Hannah March as their Campaign Advisor might ask us to believe this is nuance. Professional independence. A sophisticated balancing act.
It is not. It is a contradiction.
A difficult contradiction to reconcile when the JRI’s own strategic plan speaks of halving the prison population by 2030, while simultaneously employing a barrister who continues to prosecute cases that can and do result in imprisonment. If the stated goal is decarceration, the question is unavoidable: how does maintaining a prosecutorial role sit alongside that mission?
The threshold that tells on itself
We are told there is a moral line.
“Hannah accepts briefs in criminal jurisdictions to appear for the prosecution or the defence but does not accept prosecution briefs if extradition, deportation, or conviction would result in any person being exposed to indefinite detention, torture, or the death penalty.”
That is the threshold.
Torture. Indefinite detention. Death.
But here is the question that sits heavy in this country:
What do we call what happens in our prisons?
What do we call it when Aboriginal people are being killed in custody after being prosecuted, convicted and sentenced through “ordinary” legal process? What do we call women sexually assaulted in prison? What do we call the daily psychological disintegration of people held in prolonged solitary confinement, a practice recognised internationally as torture when used beyond short durations? What do we call remand populations warehoused for months and years without conviction? What do we call the mass-incarceration of Aboriginal children?
If the moral red line is torture and death, Australia has already crossed it.
The refusal to prosecute only where there is risk of death penalty or internationally-recognised torture conveniently positions the problem somewhere else: offshore, authoritarian, extreme. It allows the local system to remain “flawed but acceptable.” It implies that what happens in Australian prisons does not meet that bar.
For the communities who live with the consequences, that is not a serious position.
The professional class that gets paid twice
There is a dark, almost absurd brilliance going on here, perhaps the most successful con the system has ever pulled.
For decades, a professional class like her have been paid to expand and defend the very machinery that produced the incarceration crisis: securing convictions, arguing for harsher penalties, legitimising policies that swept entire communities into cages. Careers, reputations and comfortable salaries were built on that foundation.
And now, in an almost seamless pivot, many of those same people, like Hannah March, are being paid again to “reform” the damage they helped engineer.
It is a closed loop of funding and authority so tidy it would be impressive if it were not built on so much human suffering.
Those who once prosecuted and punished now position themselves as the trusted guides out of the crisis, drawing new income, new legitimacy and often new praise. Meanwhile, the people who actually survived the system, the ones who lost years, families, homes and health to it, are still fighting for scraps of funding and recognition.
If this is not one of the most effective institutional scams ever run, it is certainly one of the most profitable: getting paid first to create the harm, and then again to manage the fallout.
And somehow, we are still the ones called criminals.
“Jailing is Failing”, so why keep sending people there?
Hannah, if you genuinely believe jailing is failing, there are only a few intellectually honest positions available:
- Stop prosecuting.
- Use your platform to refuse briefs that contribute to imprisonment.
- Publicly acknowledge your role in producing the harms you now critique.
- Relinquish power and shift funding to those directly impacted.
What you cannot do, without inviting scrutiny, is build a public identity around justice reform while sustaining the prosecutorial function that feeds incarceration.
Prosecutors are not neutral participants. They are not passive observers of systemic harm. They are key architects of outcomes. Every prosecution decision contributes to risk of conviction. Every conviction carries risk of imprisonment. Every imprisonment results in violence, psychological harm, institutional abuse and too often, death.
To say “I won’t prosecute if someone might face torture or execution” while continuing to prosecute in a jurisdiction where Aboriginal people are killed in custody, where women report sexual violence inside prisons, where solitary confinement is routine and regularly used to breach prisoner’s human rights, is to draw a moral boundary that protects professional comfort rather than human life.
It is a threshold calibrated to avoid discomfort, not harm.
Tell us how you justify it
Hannah, if you believe “jailing is failing”, explain how you justify participating in the process that cages people.
Explain how you reconcile reformist rhetoric with prosecutorial practice.
Explain why torture is only torture when it is extreme enough to be recognised by international law, but not when it is slow, cumulative and bureaucratically sanctioned inside Australian prisons.
Explain why death only counts when it is a sentence, not when it is a foreseeable outcome of incarceration.
Explain why Aboriginal deaths in custody are not within your moral calculus.
Explain why women’s daily exposure to sexual assault inside prisons does not cross your line.
Explain why prolonged solitary confinement does not.
You cannot market yourself as a reformer while operating as an engine of the system. You cannot stand alongside formerly incarcerated people and speak about the “failures of prison” and then walk into court to help produce it. That is not reform. That is reputational insulation.
And for those of us who have lived inside the consequences, the contradiction is not abstract. It is not academic. It is not a clever professional balancing act.
It is personal.
You do not get to prosecute us by day and reform us by night.
Pick a side.
The writers declare prison deaths happen ‘all too often’, that death ‘is a foreseeable outcome of incarceration’ and that ‘Aboriginal people are being killed in custody’. Very little unbiased research shows they are, to put it mildly, getting carried away.
If you follow large numbers of people over a year some of them will die. In fact the death rate in Australia is a tad over 5 per thousand. Last year there were over 44 thousand prisoners in Australia (over 17 000 Aboriginal). So of course there’s going to be prison deaths every year!
In fact prisoners have a lower death rate than the quoted 5 per thousand, no doubt because this population is light on for elderly people. The gold standard data comes from the AIC’s Annual Deaths in Custody Reports. The most recent year’s death rate was 1.9 per thousand, with non-Indigenous prisoners dying at higher rate of 2.2 as opposed to 1.5 for Indigenous ones. The lower Aboriginal death rate was no fluke: this has been the case for the last 22 years, perhaps because this group is somewhat younger.
Last year had the most Aboriginal deaths on record because we had record numbers of Aboriginal prisoners. But a look at table B7 shows that it was a long way short of the highest death rate of Indigenous prisoners which was 4.4 per thousand (over twice as high) in 1989-9.
As I wrote in a previous comment the death rate of prisoners in the first year out skyrockets to 10.1 per thousand. The writers replied this illustrates the malign influence of prisons but failed to explain how this resulted in low rates when they were in these supposedly ‘death peddling’ places but should explode when they were free from them.
So yes deaths in prisons do happen and usually deeply regretted. But they are not common (well under 1% a year) and the figures show they are more common outside prisons than in them – especially for Indigenous folk.