Opinion: It is time to move sentencing beyond the Dark Ages
This is an opinion piece by Mirko Bagaric, Professor of Law, Swinburne University of Technology that was originally published in The Australian
In the lead-up to the Victorian state election next week, law and order is a key voter issue. In response to an increasing incidence of violent and sexual crime during the Andrews term of government, Labor is now purporting to get tough on crime. Part of this approach includes mandatory prison terms for assaults of emergency services workers.
The proposal has been slammed by the Law Institute of Victoria, which opposes any mandatory sentences on the grounds that they prevent courts according individualised justice.
This criticism is egregiously flawed. A central problem with Victorian sentencing is not that we have too many mandatory sentences; rather we don’t have anywhere near enough.
The reason we need mandatory terms is that too often judges, in seeking to provide individualised justice to offenders, exacerbate the suffering of victims and endanger the community.
Judges regularly impose inadequate penalties on offenders because as with all humans their decision-making is influenced by their emotions and subconscious biases.
They won’t like the suggestion of mandatory penalties, but paradoxically mandatory sentencing will assist to preserve the standing of the judiciary by immunising it from attacks such as those by Home Affairs Minister Peter Dutton earlier this week.
He stated that the nature of judicial appointments in Victoria and soft sentences were in part to blame for the spate of violence in the state.
Sentencing is the legal domain where judges have the greatest latitude to give effect to their personal sentiments. Sentencing is a rule-free domain where the only irreducible constraint is the maximum penalty, and there are over 100 aggravating and mitigating factors which courts can invoke to shape their reasoning to nearly whatever conclusion they feel is correct.
In legal terms, the sentencing decision-making process is termed the “instinctive synthesis”. This is a nonsensical jargon which really means intuition. And the problem with intuition is that no two people’s are alike and hence we get the deplorable inconsistency and lack of transparency which is an intractable feature of sentencing decisions.
And when judges exercise choice, it often favours offenders given that offenders are the focus of the plea hearing and have unconstrained capacity to influence the emotional receptors of judges.
The suffering of victims and the interests of the community are at best (from a time and legal perspective) a mere footnote in the sentencing inquiry.
And to the extent that judges are not influenced by their emotional assessment of the offender’s situation, the evidence establishes that judges (like all people) sometimes give effect to their subconscious biases.
Hence we see that indigenous offenders are twice as likely to be imprisoned for the same crime as other offenders. Overseas studies show that more lenient sentences are imposed on attractive offenders and that judges give harsher penalties as they become more tired during the day.
The reasons that mandatory penalties are nearly universally disliked by lawyers stem from a fundamental misunderstanding regarding the design aspect of such penalties. Lawyers criticise them because they are supposedly too harsh, don’t deter offenders and don’t allow judges to accommodate mitigating factors.
These concerns are misplaced in the context of a properly designed mandatory penalty scheme. The key to implementing mandatory penalties is to ensure that the sanctions are (i) proportionate to the minimum degree of harm caused by the relevant offence, and (ii) factor in all appropriate mitigating factors which can foreseeably apply.
Thus in setting the penalty for, say, sexual penetration of a child under 12, the guiding determinant is the likely suffering inflicted by this type of offence and this needs to be reduced by the mitigation that should be conferred on an offender who has no prior convictions, pleads guilty, has had a deprived social background, is young (say 20 years old), has depression (or some other mental illness — short of insanity) and a dependent child and good prospects of rehabilitation.
The empirical evidence establishes that victims of sexual offences suffer immensely, sometimes physically but nearly always psychologically. Crimes of this nature need to be met with stern sanctions; not because they will deter other offenders, but simply because the law commands an approximate calibration between the harm caused by an offence and the hardship inflicted on an offender. If a legal system violates the proportionalism requirement, the integrity and authority of the law is undermined.
Thus, even if every possible mitigating factor applies in relation to the offence of sexually penetrating a child under the age of 12, a term of no less than five years’ imprisonment must be imposed.
Instead, in Victoria the median penalty for this offence is four years and (remarkably) 20 per cent of offenders receive no prison time. This is a brutal repudiation of the welfare of victims and their human right to individualised justice.
To provide another example, using the same approach, in all cases when a person commits an act of terrorism which results in the death of a person, they should receive no less than 25 years’ imprisonment.
Ultimately, the debate regarding mandatory sentences concerns whether as a community we should leave the crucial task of sentencing serious criminals to the individual predilections of ex-lawyers who manage to get a job on the bench, who have no training in sentencing and whose decision-making necessarily suffers from the fallibilities of all human beings, or law-makers guided by dispassionate experts.
Ad hockery for good reason has been abandoned in all other areas and it is time for sentencing to move beyond the Dark Ages.
This of course assumes politicians can be influenced to impose proportionate fixed sentences. To date they have generally failed.
But when they do finally listen, the objective should be to ensure that all offenders who commit sex offences and serious violent offences are always imprisoned, while driving down total prison numbers by imposing other sanctions on most other offenders.
And if lawyers still want to maintain their simplistic and fanatical opposition to fixed penalties, they need to start with non-fairy tale scenarios where an adult who penetrates a child under 12 should get less than five years or a murderous terrorist should be out in less than 25 years.
Mirko Bagaric is Director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University of Technology. This opinion piece was originally published in The Australian.
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