The continuing outcry over Western Australian and Northern Territory laws on mandatory imprisonment typifies the sad state of debate about public policy in this country. Reasoned discussion invariably takes second place to moral posturing, misinformation and a dash to the United Nations.
First there is the rhetorical overkill, as prominent people compete to make the most outlandish statements. The Human Rights Commissioner, Chris Sidoti, always a strong performer in this arena, said that Prime Minister John Howard's statements on the issue "lump us in with the worst human rights offenders" such as China. But this time he lost out to NSW magistrate Pat O'Shane, who has suggested that there could be "a hidden genocidal intent in the Northern Territory's mandatory sentencing laws".
Then there is the neglect of important details. For instance, most Australian states, including Queensland, have mandatory imprisonment for people who are convicted more than twice for certain serious traffic offences, such as driving under the influence of alcohol, or dangerous driving.
However, this does not seem to upset the righteous. Maybe this is because they think that private vehicle ownership is rather wicked, and something that should be discouraged. Certainly, it is hard to see Opposition Leader Kim Beazley or Greens Senator Bob Brown calling for a United Nations investigation into whether Australia's traffic laws infringe international human rights conventions.
And despite claims that Johnno -- the Aboriginal youth whose suicide in a Darwin detention centre triggered the current outrage -- was killed by Northern Territory's mandatory sentencing law, Aborigines convicted of an offence are actually less likely to die in prison than outside. The Royal Commission into Black Deaths in Custody reported that the "death rate of those Aboriginal people on non-custodial orders is approximately twice that of Aboriginal prisoners". The commentators who condemn governments for not following through on the Royal Commission's work carefully ignore this distressing finding, thus giving the lie to their supposed concern with Aboriginal welfare.
The mandatory sentencing laws have been widely condemned by the judiciary and the legal profession. Obviously recognising that the laws have a considerable degree of public backing, four senior judges from NSW signed a letter claiming that this "provides a disturbing insight into the practical operation of the simplistic notion that democracy is merely the majority will". Their letter provided an even more disturbing insight into an increasingly common attitude amongst judges that it is they, rather than the people's elected representatives, who should be making the laws.
Social workers and psychologists attached to courts like to tell us that juvenile crime is a "cry for help". Be that as it may, perhaps they and their colleagues should consider whether popular support for mandatory imprisonment might also be a "cry for help"; a sign of widespread disquiet about the ability of our legal system to strike an appropriate balance between the rights of criminals and the rights of society as a whole.
Few people still believe that large numbers of delinquents and criminals are likely to be rehabilitated in jail, despite the lip service that is given to this desirable goal. Whether the threat of imprisonment acts as a deterrent is more complicated. Opponents of mandatory sentencing argue that a great deal of crime is impulsive and that most individuals don't stop to weigh the cost and benefits before breaking the law.
Nevertheless, American statistics examined by the National Center for Policy Analysis indicate that as the expected punishment increases, so the amount of crime decreases. However, this relationship does seem to apply more to adults than to juveniles, suggesting that the deterrent effect of jail may be greater with adults.
But rehabilitation and deterrence are not the only purposes of imprisonment. Although incarceration may be expensive, locking up criminals removes them from circulation -- or as criminologists say, it "incapacitates" them. A recent study focusing on NSW by the Australian Institute of Criminology concluded that "a sentencing policy oriented towards incapacitation of juvenile violent and property offenders would reduce the supply of juvenile violent offenders by 28 per cent, and that of property offenders by at least 46 per cent"; significant reductions indeed.
And as Michael Duffy pointed out in the Courier-Mail last month, for many people the most significant aspect of imprisonment is that of punishment -- it is a way of making criminals receive their just deserts. The educated middle class, increasingly in thrall to dubious sociological notions about the causes of crime, take a more lenient view and revile as "rednecks" those who believe in the importance of retribution.
But there are a couple of ironies here. The educated middle class usually thinks that traditional indigenous law should be recognised and celebrated, even though these traditional legal systems place considerable emphasis on the attainment of moral balance through retribution.
Furthermore, the "redneck" position is actually based on a more generous view of human dignity. The "redneck" sees the criminal as a moral agent who makes a choice to break the law, and demands that he or she face the consequences of such actions. The "caring" member of the educated middle class effectively treats the criminal as some kind of automaton, acting under the influence of social and psychological forces largely beyond individual control.
Personally, I have serious reservations about mandatory sentencing. I certainly do not see it as a panacea, particularly for young offenders. But if judicial discretion in sentencing is to regain the support that it should rightfully receive, the culture of the legal system needs to be changed so that it is more in line with public values. Instead of asking the United Nations to condemn Australia, our judges and lawyers should be asking themselves what they can do to recover public trust.
ADVERTISEMENT
No comments:
Post a Comment