One-size-fits all sentencing has never worked
1 September 2017
Opinion piece by Fiona McLeod SC, President, Law Council of Australia, published in The Australian, 1 September 2017.
The case of Zak Grieve, admirably brought to light by investigative reporter Dan Box in The Australian, is complex — hardly uncommon for criminal cases. Yet this complexity contrasts markedly with the brutal simplicity of Grieve’s sentence: a one-size-fits-all mandatory 20 years.
The idea of a standardised mandatory sentence is appealing on a theoretical level: do the crime and the time is set in stone. But the real world, as Grieve’s case amply demonstrates, refuses to align with theoretical norms. In the real world, mandatory sentences can see a young man spend life in jail for a murder the judge found he did not physically commit.
So how is it we find ourselves with a broad spread of mandatory sentencing laws, from “one-punch” laws in NSW and residential burglary in Western Australia, to people-smuggling at a federal level?
The simple answer is that the reflexive logic of mandatory sentencing plays well to public concerns about actual or perceived lenient sentences. This is despite in-depth research demonstrating that when members of the public are fully informed about the circumstances of the case and the offender, 90 per cent view judges’ sentences as appropriate.
We all want to feel safe and we want our politicians to secure that safety within the confines of the rule of law. Mandatory sentencing, however, is a response that fails the community. Most obviously, of course, there is the demonstrated potential for blatant injustice. A 16-year-old with one prior conviction gets a 28-day prison sentence for stealing a bottle of water.
A first-time offender gets a 14-day sentence for taking a can of beer. A 15-year-old boy receives a 20-day mandatory sentence for stealing pencils and stationery, and dies in custody.
Mandatory sentencing laws have disproportionately hurt Aboriginal and Torres Strait Islander people, already imprisoned at a higher rate than any other ethnic group in the developed world. Aboriginal and Torres Strait Islander communities are in real pain as a result. As one Burnawarra elder stated to me, “I cry deeply in my soul” for the Maningrida community members in prison. Mandatory sentencing is entirely counter-productive. There is no evidence that suggests it is effective at driving down crime, but ample evidence of its long-term criminogenic effect. The US and other jurisdictions are winding back mandatory sentencing regimes because they don’t work.
In the Northern Territory, property crime increased during mandatory sentencing and decreased after its repeal. Indeed, mandatory sentences make it harder to prosecute criminals, by removing the incentive for anyone to plead guilty or to provide information to the police. There is every incentive to fight on and appeal against convictions.
We also know the best way to drive up crime rates is to expose people to prison, a learning environment for crime and reinforced criminal identity.
And then there is the cost. According to the Productivity Commission, each inmate in Australian jails costs the taxpayer an average of $283.19 a day, more than $100,000 a year. Our total spending on corrective services in 2015-16 was $3.9 billion.
So mandatory sentencing means we are spending limited justice-system dollars on putting people in jail who may not belong there, instead of equipping the system with the resources it needs to prevent crime from spreading.
Our research points towards other important community costs caused by over-imprisonment: the loss of productive output, forgone taxes, reduced employment prospects, the breaking down of social and family bonds, higher rates of reoffending, and entrenched intergenerational cycles of poverty.
There is also the risk of community resentment towards the legal system when it is seen to operate unfairly, which may undermine our institutions. All of this demonstrates why judicial discretion has long been a core principle of our justice system.
It is the courts, not parliaments, that deal with the reality, rather than the idea, of crime. When you take away the ability of a judge to take into account the seriousness of the offence, the degree of culpability of the offender, their personal circumstances or the explanation for offending, you generate disproportionate and, often, unconscionable outcomes.
Mandatory sentencing doesn’t so much abolish discretion as move it to other parts of the criminal justice system, most notably law enforcement and prosecutors. So inconsistency in sentencing remains. Of course, politicians will always be keen to be seen to be tough on crime, but this can be achieved through increased maximum sentences to target the cases that require it.
There are also several other ways to prevent crime. “Justice reinvestment” is an alternative to imprisonment that diverts funds from incarceration to community-based programs that address underlying causes of criminal behaviour, such as substance abuse or a lack of housing.
In the US, it is the traditionally conservative and hardline politicians who are advocating justice reinvestment as a more effective response to crime, in terms of costs and outcomes.
It has made for unlikely bedfellows across the political spectrum, including high-profile Republicans Jeb Bush, Newt Gingrich, Rick Perry, Marco Rubio and Ted Cruz, alongside Democrats Barack Obama, Joe Biden and Hillary Clinton. Similar initiatives are gaining traction in Australia, with justice reinvestment trials under way in Bourke and soon to start in Cowra, the ACT and South Australia. Other options — such as community service orders, restorative justice and diversionary programs, specialist courts (such as drug or indigenous sentencing courts), and rehabilitation programs — may be more cost-effective ways to drive down crime.
It is also important to invest in early prevention strategies, including civil and family legal assistance services, to help people resolve disputes before they escalate. For Aboriginal and Torres Strait Islander people, the Redfern Statement handed to the Prime Minister in February included a call to support community-led solutions, which are essential to reduce imprisonment rates and promote community safety.
Change the Record’s Blueprint for Change provides an array of solutions in this regard, starting with introducing the Council of Australian Governments’ Closing the Gap justice targets. The blueprint’s principles include investing in communities, not jails, and recognising that local communities are often best placed to provide answers. Such approaches may not be as simple to sell politically as mandatory sentencing but they may have the considerable advantage of working to reduce crime and improve community outcomes.
Fiona McLeod SC
President, Law Council of Australia