There are fault lines in all forms of government. Democracies are as vulnerable as any other to one of them: the charm of the easy and emotionally attractive answer to multi-faceted problems.
This is not to say that reason and logic lead inevitably to perfect solutions. Emotion is an element in the human condition and, as a general rule, reason and logic must, on pain of being wrong, find a place for it when decisions affecting the governed are made. But if that place is one from which emotion trumps the logical application of evidence, mistakes will almost inevitably follow. That is certainly true of a subject as fraught as the sentencing of offenders.
It is, as these things often are, an issue of the benefit of a particular approach against its cost. Both cost and benefit, when sentencing is the subject of examination, contain elements of the subjective heavily overlaid with the fierce ardour of the tabloid media and the willing submission of politicians. The result is a failure of rigorous analysis; this in turn is followed by the adoption of policies that are seriously inimical to the wider public good.
It is a measure of good governance that its decisions satisfy the reasonable desires of the governed. That end cannot be met unless those desires are known. Democracies are more likely than other forms of government to identify the wishes of their publics.
Knowing the facts changes opinion on penalties
When criminal law is the topic of relevance, the wish of the public is for more punitive sentences than those which the courts generally impose. But there is a catch.
Criminologists from around the democratic world have conclusively demonstrated that members of the public who are in a position to judge the merits of a particular sentence – for example, jurors who have found an offender guilty after evaluating the evidence produced at the trial – consistently accept the sentences imposed in these particular cases as appropriate.
Thus, a 2011 Tasmanian survey of 698 jurors from 168 trials revealed that 90% were satisfied that the sentence imposed in the case over which they presided was either “appropriate” or “very appropriate”. And 52% of the jurors would have imposed (had the decision been theirs) a more lenient sentence that did the judge.
So the premise that the public is more punitive than the judiciary is both true and false. In general, a clear majority favours more severe penalties. But, given knowledge of the particular facts of the particular case, that punitiveness dissolves.
The tabloid media proclaim the case for ever greater severity. There are compelling commercial reasons why it should. Nothing attracts attention as readily as anxiety and outrage; it is that reaction which the tabloid media cultivates. Outrage is easy to generate when a sentence can be portrayed, accurately or otherwise, as lenient.
The effect of the search for the sensational is journalism and radio commentary that, rather than advancing the public’s right to know, not only distorts the truth but also withholds information without which informed views cannot be reached.
It is absolutely in character with the tabloid media’s approach that, despite their importance, the results of the Tasmanian study were not reported in Melbourne’s Herald Sun until six weeks after their release, in a small paragraph on page 38.
If the consumer of news was aware of the mass of criminological opinion, which holds that an informed public is not punitive, the tabloids’ calls for harsher penalties would be shown to be misplaced. But such opinions are reduced to near invisibility.
The result is a conglomeration of widely held and highly questionable views. Crime is increasing, and this is the fault of the leniency of the courts. Harsh sentences deter. Imprisonment protects. Victims’ voices are given insufficient weight. Political parties that seek to govern must adopt tough law and order policies.
The truth about crime and punishment
The simplistic nature of the tabloid coverage of sentencing ignores the hard truth that the threat of punishment serves only as a vague general deterrent. Particular sentences, and even publicised increases in maximum penalties, serve almost no deterrent purpose at all. Witness, as an entirely typical example, the public brawl last May between James Packer and David Gyngell at the height of the publicity given to a new maximum penalty of 20 years’ imprisonment for a death resulting from a “king hit”.
Nevertheless, the hopelessly skewed message of the tabloids has its effect. The tendency to public outrage is fostered. The public’s desire for sterner punishments is born and then cultivated.
It costs about A$100,000 to maintain one prisoner for a year. With some 6000 prisoners in Victoria alone, this amounts to a yearly expenditure of some $600 million, excluding capital costs. And, so far as the evidence enables any conclusions to be drawn, the incidence of criminal behaviour is diminished not at all.
Given that most prisoners are incarcerated more than once, imprisonment fails not only to rehabilitate but also to deter and (except in the short term) to protect. Rather, incarceration has the opposite effect: while an essential weapon in the correctional armoury, it tends in many instances to exacerbate the problem.
Much of the money would be better employed on such public goods as education, health and infrastructure – and far more effective correctional policies, especially a concentration upon rehabilitation.
The need for a proper debate to be had is urgent. The law and order policies currently in favour do not make for good governance. They make for an inexcusable waste of scarce public funds.
David Harper retired in 2013 from the Bench of the Court of Appeal of the Supreme Court of Victoria.