Victoria’s new Premier Ted Baillieu is hitting the ground running, and one of the first pieces of legislation he wants to introduce is the abolition of suspended sentences and to introduce what he terms baseline minimum sentences.
The consequences of this action will not be what Baillieu blithely predicts them to be — lower crime rates. Instead the courts will be clogged with more trials, judges and magistrates will find ways to prevent cruelty, and if prison numbers in Victoria increase, so will crime rates.
Baillieu’s policy is to abolish suspended sentences because he thinks they are a free kick for offenders. Instead he would rather see offenders locked up. His party plans also to take Victoria down the American road of mandatory minimum terms of imprisonment, such as 20 years for murder or 10 years for commercial drug trafficking.
Both these polices will result in their being less capacity for the DPP and defence lawyers to cut deals that benefit the community. Why would a person accused of a crime agree to plead to a charge on the basis that if he or she is convicted they face certain jail because the courts hands are tied behind their back by a bunch of law-and-order zealots and their mates in the victims-of-crime lobby? Why not simply go to trial and see if a jury convicts you. This is exactly what happens in the US where similar laws have been part of the legal landscape for many years.
The Baillieu government’s plans also throw a gauntlet down to the judiciary in Victoria. What Baillieu and his would-be Attorney-General Robert Clark are saying to the courts is this — we expect you to send someone to jail for a long period of time even through to do so would be cruel and unjust. Take a young offender who is a small part player in a drug trafficking exercise. He is charged with trafficking a commercial quantity of drugs and faces a minimum of 10 years in jail under the Baillieu plans. This young person has no prior convictions, is battling an addiction to drugs and has simply been duped into participating in a criminal enterprise.
How can a judge whose ethical and moral compass demands that he or she accord justice, mete out a sentence that will destroy that young person’s life? Or what about the woman who faces years of abuse from her partner and murders him — should she have to go to jail for 20 years? Courts must and will find ways to prevent cruel outcomes.
Finally, and from the perspective of the Herald Sun, police, the DPP Jeremy Rapke and the victims-of-crime lobby the most important flaw in the Baillieu plan is that crime rates will not be reduced by sending more people to jail. In fact there is a direct correlation between increased prison numbers and rising crime. There is a wealth of data from the US and Canada that supports this thesis.
One reason is because the cost of incarceration and building new prisons means there is less money available for preventative programs such as those dealing with youth at risk or behavioral counseling facilities. Another reason is simply that jailing people, particularly for lengthy periods, increases the chances of them re-offending within two years of release.
As recently as September this year an article in the prestigious Cardozo Law Review in the US noted that the “claim of crime reduction has been contested as well, with most researchers finding no deterrent effect from mandatory sentencing laws”.
Baillieu’s plans on sentencing a sad testament to what happens when you allow populism and ignorance to underpin public policy.
*Greg Barns is a barrister and a director of the Australian Lawyers Alliance.
What a load of idealistic rubbish – could it be that this will mean less work for the lawyers ?
“Both these polices will result in their being less capacity for the DPP and defence lawyers to cut deals that benefit the community”
Deals that benefit the community ? Not even humourous – I’d like to see how you try to spin that one.
“Cruel outcomes” ? What about the victims ?
“Take a young offender who is a small part player in a drug trafficking exercise. He is charged with trafficking a commercial quantity of drugs and faces a minimum of 10 years in jail under the Baillieu plans”
Of course you’d let nhim out on a bond to hone his craft because let’s face it, there’s no punishment is there and of course if he’s stuck he can always put on “remorse” that works eh ?
” This young person has no prior convictions”
Ok so the first time is a freebie ?
” is battling an addiction to drugs and has simply been duped into participating in a criminal enterprise.”
Nice defence.
Sorry but the time of bludgers like you getting scum off and back onto tthe streets may be over, you’ll have to find another way to scab a living at the expense of public safety.
Greg,
Great piece, it’s a shame things like common sense and facts apparently don’t matter to the mandatory sentencing lobby. Higher sentences for rape have seen more pleas of Not Guilty, and therefore fewer convictions. Police know this, however supporting mand-sent and other “tough on crime” measures is the only way they can secure more funding for more police to *prevent* crime.
In Victoria as you know we have mandatory licence disqualifications for drink-driving. This, combined with a hopelessly loopholed Road Safety Act has led to an industry of lawyers who practice almost solely in the field (a friend of mine, when the Act was introduced in 1986, opined that it would buy him a nice retirement farm, and he was more than right), and reams of case law on what should be a simple piece of road safety legislation. Judges and Magistrates, faced with an apparently “good” accused person, will find a way to acquit, leading to an OPP appeal, when, if they had an option for sentencing, probably would have convicted (or the accused would have pleaded guilty at the first opportunity to obtain a discounted sentence).
Mandatory sentencing not only doesn’t work, it removes the independence of the judiciary.
Hi Greg,
I do think it needs to be managed too, but I can’t see the below possibly positive elements were considered when you wrote this and they possibly need to be acknowledged
– deterrence to commit crime when there is surety of a sentence
– less time for recidivism if more time is spent in jail
That being said of course there needs to be some flexiblity for scenarious you mentioned
Higher penalties do not necessarily deter crime because there is only a modest chance of being caught. The calculus is:
perceived likelihood and size of benefit from committing a crime – perceived likelihood and size of punishment from committing the crime.
Furthermore, many offenders do not think very far ahead, so the calculus becomes:
certain immediate gain – possible future loss.
Locking people up for a long time is an incredibly expensive way of reducing recidivism.
Indeed, Barns might have emphasised more that reducing suspended sentences and increasing goal time will require more goal beds which will cost much more in recurrent expenditure. Prisons will fill so more expensive prisons will have to be built. And of course more prisoners’ and their families’ lives will be made miserable for longer.
I do love your recidivism argument Sarah. Why don’t we just jail people permanently? It would eliminate all chances of reoffending. Case closed.