Opinion & Commentary
Time to fit the crime
The first duty of government is to protect the citizen’s person and property, and to do so consistently, humanely and effectively. Balancing these requirements is not easy. Rising crime rates in Queensland, the call for mandatory sentencing, and the public approval it seems to have, suggest that governments and courts are increasingly failing to perform this most basic of duties to public satisfaction.
Punishing criminals after proper legal process has convicted them is intended to convey public outrage, to chasten and reform the criminal, and to deter the criminal and others of similar inclination from future offending. Consistency, humane justice, and effective deterrence, require that the punishment should be graduated to the severity of the offence to persons and property, that similar offences should receive similar punishments, and that there should be a relationship between repeat offending and the severity of punishment.
Yet case after case is cited in the press where the ordinary citizen would see gross mismatches between the severity of the offence, or repeated offending, and the punishment meted out. Where magistrates and judges have wide discretion in punishment, this may be inevitable when they, but not the public, have knowledge of the character and personal history of the perpetrator and the circumstances of the offence. This sort of background is often omitted in press reports, to the understandable irritation of magistrates and judges criticised for undue leniency.
'There can be no sensible penal system which does not start with the presumption of free will'
Nevertheless, in many cases there is a justification for public dissatisfaction when judicial discretion appears to be influenced by values and a world-view at variance with public opinion—especially in relation to personal responsibility for a criminal offence. This is illustrated, for example, in Justice Einfeld’s article on the subject of mandatory sentencing (Courier Mail, 20/11/00). In
denouncing penalties for petrol-sniffers who had stolen petrol in the Northern Territory, Justice Einfeld says: “…we are jailing kids not because they are dangerous criminals, but because they are ill”. Would most people accept the judge’s implication here that petrol-sniffers (or alcoholics? or drug-users? or habitual gamblers?) are to be excused ordinary responsibility for crimes committed in order to serve their habits, because they are “ill”?
In similar vein, Mr Andrew Boe (Courier Mail, 11/00) argues that being poor, or disillusioned, or affected by economic downturns, or under-educated, or a drug-user or alcoholic are “the most direct causes of crime”. One would think, however, that the most direct cause of crime is the individual intention and decision to commit one. So, again, the question of individual
responsibility (in the absence of mental incapacitation) is being put in the background and social circumstances foregrounded.
The essential point is that there can be no sensible penal system which does not begin with the presumption of free will and the individual responsibility of those who are capable of rational behaviour, and which does not recognise the empirical fact that criminal motives and behaviour are affected by imprisonment.
'Gaol does work in reducing crime and protecting the citizen'
Australian figures which plot the course of crime and punishment for virtually the whole of the 20th century, published in Rising Crime in Australia, (1997), “indicate that as the crime rate has gone up, the rate of imprisonment has gone down in a very consistent manner”, suggesting that “crime increases when incarceration rates are low”.
American evidence using sophisticated statistical techniques and covering a very large population are revealing. In the 1960s and 1970s, serious crime in the United States quadrupled. It then stabilised and began to fall through the 1980s and 1990s. A recent study by the US National Center for Policy Analysis shows that since 1993 the murder rate has dropped 34% as the probability of going to prison for murder has risen 54%; that robbery has decreased 35% as the probability of prison has increased 24%; and that burglary has decreased 22% as the probability of prison has increased 21%. And prison in America nowadays means longer sentences than in the 1980s.
It would seem that in America, gaol does work in reducing crime and protecting the citizen, and the findings are consistent with the more limited statistics in Australia dealing with crime and imprisonment from the beginning of the 20th century.
Prison, and a consistent and humane use of mandatory sentencing, have roles to play, and arguments that gaol does not deter, or that it is counterproductive, are contrary to the evidence and to common sense.
About the Author:
Barry Maley is is Senior Fellow of The Centre for Independent Studies and is director of its Taking Children Seriously research prgramme.
