27 February 2008

Mandatory Minimum Sentencing

A couple of sentencing decisions in the news recently have attracted a lot of public attention. Many people are calling for longer sentences in general, and for mandatory minimum sentences. Very few of these people are actually able to articulate why they would be a positive.

At the time of writing, 89% of people responding to the AdelaideNow Poll support mandatory sentences for Aggravated Cause Death by Dangerous Driving cases. The comments on the story in question follow similar themes - a couple are reproduced verbatim here:
"Crime i sgetting worse and worse and yet these criminals are getting such pathetic sentences"
"lock these criminals up for a lengthy term, show them we will not tolerate it anymore, before things get even worse."

Many of them talk about the fact that the victim was a "good" man - and there is absolutely no doubt that he was, but is that something that should play a role in sentencing? Maybe that is a whole topic in itself.

I want the Government to work at reducing crime.

Increased penalties only serve to appease a public baying for blood. They do not reduce crime. The penalty for stealing used to be transportation to Australia, and it did not stop crime - and that is long before Australia was the migration destination of choice for Brits!

I am told Denis Hood is a reasonably intelligent man, and therefore one would assume that he has read all of the research on the topic of "general deterrence." If he has, then the only motive for this must be political.

That's not putting the Family First.


Anonymous said...

Mr. Slade,

I came across your blog purely by accident and on noting you are from an Adelaide law firm, I decided to have a quick look at your blog.

Your comments on mandatory minimum sentencing caught my eye. Allow me to answer one of the questions you posed.

I'll preface my following comments by stating that i think our justice system should be primarily about punishment, with rehabilitation a secondary aim.

Longer sentences are a positive because firstly, people need to be punished for the crimes they committ. Secondly, the victims of crimes and their families should be entitled to some closure and a feeling of justice having prevailed. Thirdly, i have no doubt that increasing the duration of jail sentences would reduce crime. Only the most brazen/desperate of people would shoplift if they knew the minimum jail sentence they would receive if caught would be 12 months. Such a lengthy term would no doubt deter many if not all opportunistic criminals.

I think it is detestable that a criminal, regardless of the crime, can have their sentence reduced beacuse they are remorseful, or becuase they are terminally ill, or because their mother is disabled. These scum criminals should take these factors into account before they committ the crime, not the courts upon sentencing.

I will not criticise you for being a defence attorney, you have your part to play just as anyone else in the criminal justice system. But i will criticise your view on sentencing. Perhaps if someone you cared about were the victim of a crime, or indeed yourself, you may change your tune about the sentences handed out by our pathetic judges.

Simon Slade said...

@Anonymous - The retributive model of sentencing is one that has many advocates. It really comes down to whether people think that reducing crime is important, or punishing people after the event is more important.

In my life I have been the victim of two or three assaults, three housebreaks, three or four Illegal Interferences, one Larceny from the Person, and a "hit and run" when I was a pedestrian. Never have I felt the need for a person to be punished so that I could achieve "closure," whatever that may mean.

None of that matters though, because one of the reasons we have a system of justice is so that it is not my job as a victim of crime to pursue and punish those responsible.

Ironically, the processes that directly involve victims (like Family Conferences, where the victims must agree with the sentence) usually result in lower sentences than a Court would impose.

As I mentioned in my post, people did steal from shops, even when the penalty was transportation to Australia.

What has a greater tendency to reduce a crime is the perceived risk of getting caught. That is why speed cameras are effective at deterring speeding - people believe they are likely to get caught.

Tex said...

Whilst I understand the community sentiment that causes the switchboards to light up at talk-back radio stations or causes 'Media Mike' to give a 15 second sound-bite when justice is not 'seen to be done', as someone who was worked in the Justice System, I am glad that penalties are NOT handed down by members of the public.

They generally have somewhat... aggressive... view of what constitutes an appropriate sentence. (Pillory, stocks, branding and hanging being common themes.)

Of course, it is very easy demand longer, harsher penalties... But, one should always be careful what you wish for. Because, it certainly could be a case of 'there, but for the grace of God™ go I'.

(Personally, I have the view that custodial sentences serve one purpose and one purpose only. To isolate the serial offender so that he cannot prey upon the ordinary citizen. I don't believe the prisons should be places of punishment, though they should be places you want to avoid, nor do I see it as the place of the state to rehabilitate (except to supply the structure to do so, should one choose). Call me a cynic, but, by the time someone hits prison, they have had ample opportunity to divert themselves from their criminality. Clearly, they want to be criminals. The chance for rehabilitation has long since passed.)

Harsher sentences would also mean more Trials. Which (as I am acutely aware) would mean more acquittals. I'm not going to ask you to confirm this, but I imagine that 'instructions' currently go along these lines...

"Well, here's the Prosecution case... ID is a bit on the flimsy side and maybe we can attack the chain of evidence on the DNA. But, it looks strong and you heard what the Magistrate said at the Pre-Trial. What do you want to do?"
"I just don't want to go to Prison. Will I have to go to Prison?"
"Hmm... This is no guarantee, but, I will ring the Prosecutor and see if they are going to push for a custodial sentence if you plead guilty. I might see if we can swing a suspended sentence. First offence and all that, I think we'd be sitting pretty."
"That'd be great! Where do I sign?"

If there were harsher, mandatory sentences, the instructions might be along these lines...

"Well, here's the Prosecution case... ID is a bit on the flimsy side and maybe we can attack the chain of evidence on the DNA. But, it looks strong and you heard what the Magistrate said at the Pre-Trial. What do you want to do?"
"I just don't want to go to Prison. Will I have to go to Prison?"
"Hmm... Well, there's a mandatory 2 years imprisonment, even for a first offence. So, even with a contrite plea, you'll still have to do some time inside. But, they'd have to set a non-parole period and with time served... You'd be looking at about 9 months."
"&*%^ that! I'll go to Trial!"
"You realise that you could still be found guilty. And you wouldn't get the minimum."
"&*%^ that! Like you said... ID is flimsy! She was miles away, she couldn't've seen it was me. Plus, she's old and wears glasses! Confuse her when you cross-examine her. Make her cry! I'm not going to jail! I've got nothing to lose!"
"Okay, Trial it is. Sign... here."

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