Mandatory sentencing – Throwing away the key is not the answer

By Legal Eagle

In The Age today, it has been reported that the Victorian government is considering mandatory sentencing for young offenders of violent crime:

The Baillieu government plans to introduce mandatory minimum jail terms for youths aged 16 and 17 convicted of violent offences, despite concern among the legal profession.

Attorney-General Robert Clark has asked the Sentencing Advisory Council for advice on sentencing protocols for serious-injury offences that involve ”gross violence”.

He has committed to introducing a mandatory two-year minimum sentence in a youth detention facility for 16 and 17-year-olds found guilty of recklessly causing serious injury and intentionally causing serious injury when committed with ”gross violence”. The proposal to remove judicial discretion comes despite warnings from the president of the Children’s Court, Judge Paul Grant, who has publicly stated there is ”no simple connection between ‘locking them up’ and stopping offending behaviour” and that detaining young offenders had no apparent impact on the crime rate.

In my opinion, mandatory sentencing is a very bad idea. It’s natural to sit there and be outraged when you read a brief newspaper report of a 17-year-old who bashed an old grandmother and does not serve a jail sentence. I’d be particularly outraged if it were my relative who was bashed, of course. However, we must always remember when we are reading press reports that we are only seeing a very small part of the information which was brought before the judge, magistrate or jury. And usually, the report is liberally splashed with quotes from the victim’s family saying that they are unhappy with the short length of the sentence. I suspect that most families of victims of crime feel this way, which is entirely understandable, yet one of the points of our criminal justice system is that we do not let it descend to retribution based on personal feelings for the victim.

Some years ago, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing. In the executive summary to the report it is stated that:

  • In the abstract, the public thinks that sentences are too lenient;
  • In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient;
  • People have very little accurate knowledge of crime and the criminal justice system;
  • The mass media is the primary source of information on crime and justice issues;
  • When people are given more information, their levels of punitiveness drop dramatically;
  • People with previous experiences of crime victimisation are no more punitive than the general community;
  • People with high levels of fear of crime are more likely to be punitive;
  • Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment;
  • Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions;
  • Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts;
  • Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders; and
  • Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture.

[emphasis added]

So, when people actually sit through a trial and have access to all the same information as the courts do, rather than reading a newspaper article, they tend to come up with sentencing decisions which are very similar to those a court makes.

What is more, there is very little evidence that incarcerating young offenders deters them from committing such crimes in the future or leads to rehabilitation. All it does is keep the perpetrator out of society for a time: but they may then emerge more hardened and bitter, and more likely to commit further offences.

How do we deter criminals then? Steven E Landsberg applies an interesting analogy between people who enter the lottery and criminals (in an argument against the mandatory death penalty in the US):

Lotteries are attractive when they offer big prizes or (relatively) good odds. If you’re running a lottery and you’re going to pay out $10 million, you can offer a single $10 million jackpot or you can offer 10 prizes of $1 million each. Which is more appealing to the players? Usually, the former. For the most part, lottery players prefer a small chance of a big payout to a bigger chance of a smaller payout. That’s because the people who prefer a bigger chance of a smaller payout are buying certificates of deposit, not lottery tickets. So if you want to make the lottery more attractive, it’s better to double the size of the jackpot than to double the number of winners.

(More precisely, doubling the number of winners makes the lottery more attractive to the sort of person who never buys lottery tickets anyway, while doubling the jackpot makes it more attractive to the sort of person who might actually be tempted to play.)

Now let’s apply the same reasoning to criminal deterrence. For the most part, criminals prefer a small chance of a big punishment to a big chance of a small punishment. That’s because the people who prefer a big chance of a small punishment go into punishing careers like construction work or coal mining instead of crime. So if you want to make crime less attractive to criminals, it’s better to double the odds of conviction than to double the severity of the punishment.

Thus, it is better to increase the chance of being caught than to merely increase the punishment if one wants to deter criminals. It’s not simply a matter of “throwing away the key”. Perhaps, too, we’d be better off trying to head problems off at the pass by attempting to identify and alleviate the societal conditions and triggers which lead to young people committing violent crimes. Of course, this is hard to achieve, much harder than some kind of “throw away the key” approach which looks effective and tough and is readily encapsulated in a newspaper headline.

A further concern for me with mandatory sentencing is my general concern about any system which removes this kind of discretion from judges (proceeds of crime legislation is another one which deserves an angry finger pointed at it for removal of any discretion). What is the point of having judges if they simply rubber-stamp determinations which have already been made by statute without any regard for the circumstances of the case? Isn’t the whole point of our justice system to weigh up the circumstances of the case? I think there should always be some room for mercy.

(Hat tip – Miss Candy)

19 Comments

  1. Patrick
    Posted June 1, 2011 at 10:17 pm | Permalink

    Candy, that’s nice, but I actually don’t think it adds that much – if you follow the cases, this is not about gangs, let alone US-style gangs (which are quite rare in Australia, thanks mainly to our lower minority unemployment and consequent lack of a (large) ‘permanent underclass’).

    This is about violent sexual offenders – who (Muslims apart, maybe) typically act in small groups or, most often, alone.

    So whilst I agree about family, and I don’t support mandatory sentencing, I sympathise strongly with Robert Clark and the Liberals on this (especially if you read what they are actually doing, as opposed to the Age’s wet nightmare of what a chimeric liberal government might do (if it was a labor government, for example -see SA and NSW!))

  2. TJW
    Posted June 4, 2011 at 11:17 pm | Permalink

    Some years ago, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing. In the executive summary to the report it is stated that:

    In the abstract, the public thinks that sentences are too lenient;
    In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient;
    People have very little accurate knowledge of crime and the criminal justice system;
    The mass media is the primary source of information on crime and justice issues;
    When people are given more information, their levels of punitiveness drop dramatically;
    People with previous experiences of crime victimisation are no more punitive than the general community;
    People with high levels of fear of crime are more likely to be punitive;
    Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment;
    Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions;
    Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts;
    Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders; and
    Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture.

    [emphasis added]

    So, when people actually sit through a trial and have access to all the same information as the courts do, rather than reading a newspaper article, they tend to come up with sentencing decisions which are very similar to those a court makes.

    I quickly read through that report a while ago but I was unable to determine the accuracy of those claims because they depend upon a study/experiment that’s published in a journal that is not readily accessible to the general public. I’d be interested to see what method the experimenters used and how it allowed them to draw that conclusion. For example, what specifically do they mean by ‘information?’ Its a very broad term. Could they have left important details out? Were the subjects unduly influenced by what they perceived to be the ‘correct’ answers?

    I am not saying that the experiment is flawed but the report was uncritically accepted by a few Victorian judges in a number of recent decisions but none of the judges seem to have read the original study or studies on which the report was based.

    Maybe someone with access to an academic database could look it up?

  3. Posted June 5, 2011 at 9:57 am | Permalink

    Any comments on whether whether a lobby group of privatized debtors prison owners might have influenced debtors laws? Any possibility that the modern corporations running privatized prisons might offer donations to politicians to mandatory sentences longer and longer? Do the righties around here think even the possibility of such influence is a good thing? Who can deny that a privatized prison system creates this possibility?

  4. Posted June 5, 2011 at 3:53 pm | Permalink

    [email protected] The notion that public provision does not create its own lobbying interests and incentives is nonsense. This is not a specific feature of private provision, it is a feature of all provision, public or private. After all, the prison guard’s union and prison bureaucrats would have exactly the same incentives: Labor Party preselections anyone?

  5. Patrick
    Posted June 5, 2011 at 4:03 pm | Permalink

    Well it depends on what the privatised prison system participants are paid for, doesn’t it DB?

    What is wrong with our prisons is of course the war on drugs, first and foremost. Check this out for an emphatic statement of the need to reform that.

  6. Posted June 5, 2011 at 5:10 pm | Permalink

    (moving from [email protected] on the jury thread, to this more relevant post)

    [email protected]: Did you read the whole piece you linked to, or saw the headline 12-month study funded by the owner and stopped reading further to the longer studies? If you’d said “early but not later studies suggest” or qualified it by gender, I’d object less to your statement. If anything, your link suggests to me that post-release programs are worth greater attention. (So perhaps mandatory supervision, rather than mandatory detention, might be valid).

    I still think that mandatory detention makes more powerful lobby groups happy.

    The real thing to ponder is that calls for mandatory sentencing, along with increasing incarceration rates, seems independent of which of the major parties is in power. I’d see the rising crime rates over periods of decades as something that reflects poorly on both political majors – is it rising marginalized groups, poorer socialization during education… or a combination of all the things governments do or don’t do any more?

    I’d suggest that the rise of both crime rates and mental health problems might have common causes, and that both reflect failures to manage the causes of crime and mental ill-health, failures of the shift in policies of both major parties over recent decades. From this perspective, any call by a party for mandatory sentencing is really an admission of their own failure across all policy areas.

  7. Patrick
    Posted June 5, 2011 at 10:57 pm | Permalink

    That’s interesting, DB, in theory, but in practice crime rates have gone down for well over a decade in Australia. I guess it could be just the fruits of liberal government?

    OK, I don’t, but it would have been a more sensible proposition than your Chomskylite tosh.

    The problem is the war on drugs, not interest groups per se. IF you want an interest-group analysis, watch the Wire, and then read the paper I linked to earlier.

  8. Posted June 7, 2011 at 3:09 pm | Permalink

    [email protected] I will happily accept the later Bates study finding no difference between private and public prisons on recidivism rates, as that supports my larger point — there is no specific magic evil interests from private provision.

    Mandatory detention is about the dynamics of people having a sense of a say about migration in their society. The policy is far stronger supported down the socio-economic scale than up it. Possessors of both intellectual and business capital like high migration, because it makes capital relatively more scarce and so more valuable. This is especially true for possessors of intellectual capital the less migration weights cultural similarity positively.

    So the powerful interests are rather the other way. Hence the long-term push to make migration policy “bipartisan”, thereby eliminating any possibility that ordinary voters might have a say.

    I go back to my original point: calls for mandatory sentencing are evidence for lack of trust. More visibly effective policing seems to be one way of increasing such trust and so lowering the pressure for mandatory sentencing.

  9. Posted June 8, 2011 at 2:01 am | Permalink

    I’d suggest that the rise of both crime rates and mental health problems might have common causes, …

    In the USA there are just over 2 million people in jail and a further 10 million on probation with .5 mill in prison for drug crimes. Recent studies show that 1 in 10 USA children have been diagnosed with a psychiatric\psychological disorder. Studies on prisoners demonstrate extraordinarily high rates of behavioral disorders.

    In Australia most crimes have been falling since 1995 but assaults have doubled. Alcohol the most probable cause of that. In days gone by people had a few during the week, now they binge, keep going with amphetamines, and we wonder why violence is increasing. Doh!

    While there clearly is something insane about putting people in a dysfunctional environment that would drive most law abiding citizens to despair and rage, we have no choice. What we continually fail to do is investigate other means for addressing this problem. For example, a psychologist I knew in Britain developed a new incarceration method for sex offenders. The pilot study demonstrated potential but it was abandoned in favour of “talkie therapy”, which is next to useless.

    Hepatitis C is rampant in our prisons. These people will be released into the general population, I just hope all released prisoners are tested for hepatitis C because it is now the leading cause of liver transplants, liver cancer, and adds greatly to medical bills.

    Mandatory detention is simply the old ideas rehashed. Australia may have low crime rates but then why …

    http://newsroom.melbourne.edu/news/n-354

    A national research report released today by the Australian Bureau of Statistics (1351.0.55.031) showed a dramatic increase in the national prison population between 1994 and 2007 of 3.7% per year, and an increase in prisoners with prior imprisonment increasing at a rate of 3.2% per year.
    ——
    So if you’re looking for a good investment, look at the prison industry.

  10. Patrick
    Posted June 8, 2011 at 7:12 am | Permalink

    No, John H, look at the drug industry. Honestly if I didn’t have a young family I’d give it serious thought myself.

  11. Posted June 9, 2011 at 10:30 am | Permalink

    Note this post answers today’s Age 1 across “- Why, Ray, we take the crook, made sure he was locked up permanently”

  12. Posted June 9, 2011 at 3:42 pm | Permalink

    [email protected] Don’t get me started on talk therapy. It generally makes narcissists worse, has an awful track record with trauma (“debriefing” tends to make the trauma worse) and is a major contributing factor to the Catholic Church’s paedophile priest debacle — where, in more robust past days, they would have just locked them up in a monastery, they were instead packed off to “therapy” which was utterly ineffectual and assigned to new parishes to prey on children all over again.

    While only a fairly small minority of priests were abusers, a majority of bishops participated in such facilitation and cover up.

    Talk therapy is lots of people paying for pseudo-friends under the delusion that it is medically proven to be beneficial.

    Old-fashioned parish priests probably did much better — they saw people in context and so had much chance of realising when they were being bullshitted to (intentionally or otherwise).

  13. Posted June 9, 2011 at 4:31 pm | Permalink

    No, John H, look at the drug industry. Honestly if I didn’t have a young family I’d give it serious thought myself.

    Yes, the psychiatric drug industry. They seem to be addicted to drugs.

  14. Patrick
    Posted June 9, 2011 at 5:30 pm | Permalink

    well yes, but they make much less money from them than smart careful ruthless people do from real drugs.

  15. Posted June 9, 2011 at 6:15 pm | Permalink

    Ah but Patrick what is happening is the increasing medication of prisoners, probably with antipsychotics and antidepressants. Growing prison popn. Wait and see but I wouldn’t be surprised if the next big “breakthrough” in prison management is psychiatric drugs. It won’t work, it will be a disaster, the emerging evidence of antipsychotics is very disturbing.

  16. Posted June 10, 2011 at 6:32 am | Permalink

    [email protected] Emphasis on smart and ruthless: most participants do not make much money at all.

  17. Patrick
    Posted June 11, 2011 at 10:52 am | Permalink

    yes, L, I know, but that is because most of them use themselves, which wouldn’t be an issue – i.e. I back myself on smart 😉

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