Any number of people – Legal Eagle, Dave Bath, Jeremy Sear, Five Star Laundry, and the Law Institute of Victoria – have eviscerated MyViews@Justice_Vic, the Baillieu government’s purported attempt to survey Victorians about sentencing.
Legal Eagle lasted three questions before giving up in disgust. I lasted one – this one. In it, participants are asked to assess whether it’s appropriate to lock somebody up for a very long time, possibly for the term of their natural life, on the basis of a 100-word summary of a stabbing.
The fact that this isn’t a serious attempt to assess community attitudes to sentencing is obvious. But if it’s designed as a loaded survey instrument that will be of use in political debate to fit this government’s pre-existing priorities to lock more people up for longer, I wonder whether the government’s kicked an own goal here. Whatever your views on sentencing, the flaws in this survey are so obvious – and explainable within a sound bite – that it will be practically useless in political debate.
As such, I’m almost tempted to speculate that this survey was deliberately set up to be ridiculed; the questions then become how and why.
In any case, whatever the outcomes from this little stunt, it seems clear that the Baillieu government likes the idea of sticking more people in prison. Personally, I’ve never quite understood the conservative enthusiasm for this. Sure, they’re big on individual responsibility, but they also purport to be in favour of parsimony with government money. As I understand it, the overwhelming majority of evidence suggests that locking people up costs a fortune and doesn’t reduce crime. Or is this yet another case of the right finding that the evidence doesn’t match their prejudices, so they go with prejudice?
This article compares beliefs re memory with the reality:
The risk of distorted memories leading to false conviction and unfair sentencing must be considered.
There is no easy answer to the sentencing dilemma.
Judges, politicians and the public all have bias’s based on their life experience and the class they come from. We are also more likely to want to be harsh on crimes that have seen a lot of recent attention and crimes that have affected us or we believe could affect us.
We are also likely to want to be less harsh on crimes that have been committed by people we identify with more and crimes that we could easily have become mixed up in when we were younger.
What I don’t want to see though is politicians demanding harsher sentences because they think this is the smart thing to do politically.
Re. your last para Robert, the Baillieu government is obviously angling for some “proof” which they can point to to claim overwhelming community support for this:
http://www.theage.com.au/victoria/super-jails-to-cost-billions-20110610-1fx7r.html
Consider the fact that the same government is cutting funding to public education. What a MARVELLOUS set of priorities for a State government to have. Victoria, the place to be, because you’re locked up!
Out of curiosity I did the survey, if only to get my 2 bobs worth. Is stabbing and glassing in the same league as growing cannabis and screaming at your neighbour.
None of the scenarios concerned white collar crime – which is too hard to detect let alone gain a conviction
Helen thanks for the info on the planned prison. Yep, I agree the government, whether Liberal or Labor, commissioned this survey to justify expenditure on a new prison.
I used to imagine that prisons were full of violent thieving offenders, instead I discovered that many offenders were there for non payment of fines, many have mental illness etc. Yes prisons house violent offenders but these people are in the minority of the prison population. And I question the wisdom of jailing a man who has killed his mates in a car accident – he is not likely to reoffend.
The money could be better spent on half way houses for mentally disturbed and providing jobs for those who can’t pay their fines.
Q. A push poller attempted to whip up a moral panic, thereby poisoning intelligent discussion. What is the appropriate punishment?
A. Lock him up and throw away the key.
It’s worth remembering that the print version of this poll was published exclusively in The Hun which spruiked the poll in its news and editorial pages for a few weeks. It’s very specifically an exercise in finding out what Angry of Berwick and Disillusioned of North Balwyn think of sentencing policy.
That’s why the test for conviction is “beyond reasonable doubt”.
It’s a little bit late for that, don’t you think?
Sentences have been generally firming up in the last decade or so, mostly in response to political pressure.
If the Bailleiu Government really wants to do justice by vox pop, it ought to ask the voters whether they think political dishonesty should be a crime, and what the penalty should be. I seriously doubt it would like the answers.
I’m not sure how to make it work but it seems wrong to me to release an unreformed criminal from prison or to keep in prison anyone who no longer poses a significant threat to the community. I guess that means I’m in favour of long sentences but short no-parole periods and very tough parole assessments.
What I don’t like is the mid-term sentences such as two to 10 years. For somebody capable of going straight that is long enough to ensure they become a career criminal. For somebody with little prospect of rehabiliation it makes no sense to turn them loose until a parole board thinks they are ready.
John D @ 1 – Richard Fiddler’s interview with Paul Wilson on the reliability of memory and the court systems was very interesting.
http://www.abc.net.au/local/stories/2011/08/01/3282428.htm?site=conversations
He talked about a person who was identified by a woman of breaking into her house and raping her. It eventually turned out that he was on TV live around the time of the rape and due to the trauma of what occurred to the woman his face had somehow become confused with the rapist’s – she genuinely believed that she had identified the correct person. The wierd bit was that he was actually on TV discussing the unreliability of witness evidence with the police commissioner at the time!
Tim Macknay said:
I think if juries were made aware of just how unreliable people’s memories can be, especially under stressful conditions, what they consider reasonable doubt where the prosecution is relying solely on witnesses then the bar of reasonable doubt would be higher.
Paul Wilson claimed that the most conservative estimate for wrongful conviction is around 1% and is probably quite a bit higher. Thats a lot of innocent people sitting in jail.
To be fair, Helen, it seems that the bureaucracy has been angling for a new prison under Labor as well.
And if we are going to lock people up, we do need to build sufficient prison capacity.
That said, I wonder if you put the question to people “would you prefer to lock people up for longer prison sentences, or new roads/train lines/hospital beds/grand prixes” what the answer would be…
Robert @ 11 – how many prisoners/yr to the km of new road to you get? I’d guess that if you asked the population fear will normally win. Personally I’d prefer that they spend more money on prisons to put more of an emphasis on reform rather than punishment. Most of them are going to get out at *some* point so its in our interest that they come out better than they went in.
Jenny @ 9 – I wonder what just how reliable a parole board’s judgement of whether someone is ready to come out or not is?
I filled in the survey – bloody awful
The common mythology is that the prisons are full of whip smart criminals who are plotting and scheming elaborate crimes.
The reality is that a large proportion are not only illiterate but a great many are essentially intellectually disabled. Add to this a lot of the scarred, scared and brutalized who have been abandoned by responsible adults throughout their childhood, plus the just plain lazy and immature yobs and its hard to see what “being tougher on crime” actually means in any sensible society.
Chris @ 12
Provided it is sensibly staffed, I would argue it should be able to give a much more reliable evaluation than a judge’s or jury’s best guess from many years before.
It depends what you regard as the primary purpose of prison. If you see it as mainly for protecting the community and/or rehabilitation, then what you are saying makes sense. However, if the system were based on the principles you suggest it would potentially require a much larger proportion of the population to be imprisoned. It also poses some other problems – for example, many people convicted of manslaughter arguably don’t pose any threat to the community at all, as their offence was the result of negligence which the event itself will guarantee they do not repeat. If rehabilitation and risk to the community are the only considerations, such people would not be imprisoned at all. However, I suspect this would offend most people’s expectations of what is just, particularly the families and friends of the victims.
If you regard imprisonment as being primarily about punishment, then the key question becomes whether the term of imprisonment is proportionate to the offence, and whether or not the prisoner is reformed is a secondary consideration. In practice, rehabilitation isn’t very effective. Most criminals start their ‘careers’ in their teens and keep on offending until around the age of forty.
Yes. Where the case is dependent on witness testimony, a good defence counsel will focus on highlighting the unreliability of the prosecution witnesses’ recollection.
Chris @ 12 much of it depends on the justice worker (Juvenile, sorry Youff nowadays, or Adult) who prepares the report, crucial to their deliberations are the plans for accommodation and employment. I’ve seen parole knocked back because plans about those aspects of release are not considered adequate by the board.
Obviously they are not perfect, as a poet said of a US politician, “Willie Horton or will he not get elected” The electorate said no.
For all but the very simplest of potential parolees, there is a bucket load of work involved, the reports are not short and the workers have to anticipate the questions that the parole board are going to think important. Sometimes the hard work is getting the individual involved to cooperate with the extra services, counselling etc.
Disclaimer,
Parole boards are bodies complex
making decisions that often perplex
i worked in victoria
with little euphoria
and developed a grudging respect
Tim Macknay @ 15
I’m not sure that’s right – my idea would result in longer sentences for some and shorter sentence for others.
I don’t agree that those people would avoid imprisonment under my proposal. They should get long sentences on the basis that their criminal negligence poses a threat to the community and would only be released when a parole board is satisfied that that is no longer the case. For a deeply remorseful teenager whose drink driving killed his best friend, the period in prison might be very short, in other cases not so short. That is the way it is now, except that I would prefer regular assessment over a period of time instead of a judge’s upfront determination.
All the more reason for my suggestion, i.e. long sentence with short no-parole periods. If they come good, let ‘em out. Otherwise, keep ‘em in.
Tim @ 15 – One of Paul Wilson’s complaints is that there isn’t really a role in the court system for forensic psychologists like him are to give expert advice about the reliability of eye witness testimony. It seems to me that jurors should be given some training before trials, and this sort of information should be supplied to them. Most people seem to have a high confidence that they have quite accurate memories of events when this appears not to be true. Its not really just a pro defence thing either as the reliability of defence witnesses needs to be judged by jurors as well.
dylwah @ 15 – In cases where drug addiction is a factor in someone offending does the parole board to drug testing of prisoners to see if they still have an addiction before granting parole?
I think we should have Double or Nothing as a principle of sentencing and concurrent sentencing should be very limited.
How would Double or Nothing work?
First offence – sentenced as per the current sentencing.
Next time you go in front of the Beak, if found guilty, you get a minimum of double the time your were previously sentenced (including suspended sentences). If your second sentence is more than 50% of the Double or Nothing provision then you serve double your second sentence time. And so on.
This is contradicted by your remarks at the end of your comment – i.e. your agreement that the fact that most criminals continue to offend for around a 20 year period would mean that most people convicted of an offence should have long sentences. Under your proposal, given the assumption that imprisonment should be based on the period in which the person is at risk of re-offending, the majority of offenders would be incarcerated for around 20 years. It would also require many first offenders and people convicted of minor offences, who pose an ongoing risk to the community, to be incarcerated for that period of time as well.
I don’t see how you can claim that imprisonment should be based on the length of time people pose a risk to the community (which for most offenders is around 20 years), and deny that this would result in more people in prison.
What would be the basis for the assertion that the criminal negligence posed such an ongoing threat to the community as to justify a long sentence? The example I gave was specifically one in which there was no credible ongoing threat to the community.
Why would the term in prison be ‘short’, rather than zero?
The approach consistent with your model would be to imprison all young drink drivers and dangerous drivers (whether they kill or injure anyone or not – obviously dangerous driving poses a risk to the community) until they reach the age (i.e around 25 or so) at which risky driving behaviour tends to abate.
There’s also another difficulty – if a person is imprisoned because their drink-driving poses a risk to the community, while incarcerated they will be unable to either drink or drive, so how does the parole board make a rational assessment that they are no longer likely to commit this sort of offence?
Yep – concede defeat on that one.
I think it reasonable that the judicial system assume that anybody found to be criminally negligent poses an ongoing threat to the community until a period of time has passed or a parole board forms the conclusion that is no longer the case, based on evidence of remorse, willingness to accept responsibility, etc.
I also think the community would accept that it’s requirements for justice are met by my recommended long sentences so long as parole is only given to worthy recipients.
I have no disagreement with the view that many people think memories are more reliable than they really are, but I’m a little skeptical that jury training of the kind you suggest, or Paul Wilson-type expert witnesses, would necessarily lead to more reliable verdicts. It’s equally plausible that they would lead to an increase in false aquittals. Wrongfully convicted people have the option to appeal, at least. It’s much more difficult to reverse a false aquittal.
It seems to me that the principal reason for imprisoning someone ought to be to restrain the scope for that person to exercise his or her liberty in ways that harm the legitimate interests of others.
A secondary reason, which is related to the first is that it may deter others from engaging in similar conduct. Settling the cost of this deterrence one someone proven to have harmed others in this way seems entirely apt.
It seems to me that retribution (sometimes “expressing the outrage of the community”) is utterly illegitimate as a warrant for sanction. While all of us feel outrage when we see breaches of ethics, and especially criminal ones, I don’t agree that such salving such outrage can be outsourced to the state, even if one can derive momentary Schadenfreude from it and call it “just desert”. Ultimately, the desire to salve one’s own pain by seeing others suffer is an ignoble sentiment, and it would be better if we could all salve our pain by extending compassion to those wronged, understanding how the wrong arose, and by investing our emotional energy in ensuring that as far as it were practicable to restrain such conduct, that we would do so. That so few of us can consistently do this (and I’m not amongst those few either, let me concede, much as I think I should be) largely reflects the fact, IMO, that in practice, there are few means for us to solidarise with the wronged in any tangible sense, to interrogate the provenance of the wrong or to effect means to foreclose it in the future. Accordingly, our rage and disgust is channelled into the one thing we can see done — making the dirtbag who did it get what is coming to him. Of course, in the long run, when the shouting dies and with the exception of the victims, we’ve all moved on, there will be more dirtbags and no resolution and an enormous financial burden imprisoning people for very long periods of time. Sometimes this is needed, but it is always, arguably, a policy failure when it occurs. Those amongst us who buy into the punishment model of criminal justice, and allow law and order auctions to be conducted on our behalf really ought to step back and ask if such policy really serves any worthy purpose.
Chris @18, they don’t need to, Parole Boards are not juries, reasonable doubt doesn’t really enter into it, also, if there is a drug testing program in the institution, anyone failing a drug test in the lead up period wouldn’t even get to appear. I don’t know anything about the extent of drug testing in Victorian lockups these days. finally, drug tests are really just the incontrovertible proof that you present to the scratching, nodding dude in front of you who who is going “Nah duuude, I . . didn . . ‘t taaake any . . . thn”. they are handy bricks when you need a router.
That’s your view and you’re sticking to it, which you’re entitled to do. Still, I feel compelled to point out that, in the example I gave, there was evidence of ‘remorse, willingness to accept responsibility, etc’ immediately on commission of the offence. So the sentencing court would be equally as capable of forming the relevant conclusion as a parole board. Also, if there is no evidence of any ongoing threat to the community, it cannot be reasonable to assume that there such a threat exists, so according to your model there would be no basis to impose a prison sentence, let alone a lengthy one.
It seems to me that your desire for long sentences has less to do with supposed ongoing risks to the community than you think it does, and more to do with punishment. Which is fine – punishment is a perfectly sound basis for justifying imprisonment.
OBR, great proposal.
Now, can you explain what you’re trying to achieve by it, why it will work, and why it’s better than any number of other alternatives, given that it’s likely to be extremely costly?
IMHO peple should be imprisoned for
1. punishment and
2. to prevent them harming other people and
3. for deterence
Punishment when they have maliciously set out to harm someone else, whether its a school kid who attacks another kid at school or a drunk glassing another patron or baseball wielding thugs especially when the victim is disabled as a result of the attack.
Not keen on locking up drug users, growers or distributors.
Can’t see the point of revenge punishment of the driver who kills some one in a car accident, especially if the driver is ‘drunk’ with a blood alcohol reading of ’08′
The survey failed to discuss sentencing of white collar criminals who arguably cause more harm.
I understand where you’re coming from Fran, but I don’t accept that regarding punishment as a legitimate element of the goals of criminal justice is misguied, or that it inevitably leads to ‘law and order auctions’. The ideas of punishment and deterrence are also closely linked. I think the natural human reciprocal response to wrongdoing cannot be ignored, even if one does regard it as irrational.
As a society we seem to have settled on imprisonment because it fulfils a number of different functions simultaneously – separation of dangerous people from the community, and as a form of punishment which is not (at least not necessarily inhumane by contemporary standards.
er, ‘misguided’.
It is also worth looking at the percentage of prisoners in remand. In Australia:
That is an awful lot of people who are locked up without guilt being established.
The time in remand is significant. In Vic the average stay was 85 days. Not a very nice way to treat someone who turns out to be innocent.
The full research report is worth reading:
Given the social bias of bail decisions, remand should be a major concern for those who believe in fairness.
OBR, you seem to have great faith in deterrence. Do you have proof it works?
Long periods of imprisonment provide training in crime and reduce the likelihood of employability and appropriate socialisation on release. And that’s before considering the fostering of resentment.
For many crimes, especially the violent crimes which seem to figure largely in the survey, rational balance of risk of imprisonment vs gain from the offence are unlikely. And from what studies I can recall deterrence has never really worked on crimes of passion which tend to be spur of the moment, rush of blood things, probably not on many crimes of negligence either.
And many criminals don’t expect to be caught, eg the drug distributor in the survey may pay higher protection if the penalties go up but may not be deterred.
I think someone in a thread here months ago had some evidence that money spent on education was far more effective at reducing crime rates than money spent on punishment. It’s not as satisfying of a thirst for vengeance though.
Tim @ 22
“Wrongfully convicted people have the option to appeal…”
In that Paul Wilson interview he said that a convicted peson cannot introduce new evidence in his/her defence at an appeal. To a layperson that seems awfully unfair.
@1
Errol Morris’s “The Thin Blue” illustrates this in a particularly elegant fashion.
@Ronson Dalby, it’s an awfully long time since I did some basic Legal Studies units, but I always thought that the discovery of new (exculpatory) evidence was one of the primary movers for lodging an appeal against a conviction.
tigtog, my recollection is that juries decide on evidence, judges on law. Appeal judges can’t overturn findings on evidence but they can order a retrial if there appears to be a clear problem with the evidence from the trial. So i think you’re correct but Ronson may be kind of correct too.
That makes sense, @paul of albury: the new evidence provides just cause to ask the appeals judge for a retrial, on the basis that a jury might well come to a different verdict if they had had access to the new evidence.
I may have my jargon regarding retrials and appeals arse about in several ways, but the general principle holds: if new evidence in the defendant’s favour is found, it’s definitely grounds for a new trial and the chance of having one’s conviction overturned.
When the matinee jacket turned up, Lindy Chamberlain was released by executive order. Subsequently, her sentence was remitted. No legal appeal was required.
This course of action depends upon the willingness of an executive to admit that a mistake has been made. When the executive remains obdurate, the path to justice is a difficult one.
Indeed, Katz – I remember it well. So what Paul Wilson was saying about no new evidence allowed in an appeal against a verdict might well be correct, but that doesn’t mean that new evidence cannot overturn a verdict. It just doesn’t happen through the appeals process…
The whining hive mind of LP fails to see the acute econmomic judgement behind this poll; every economist of account for years has been saying that the future of employment is in the service sector and what are prisons if not services? The sunny future of Victoria is one in which fine defaulters will be extensively remediated behind bars. If only the Feds would get on board with this sort of thinking; instead of outsourcing the gaoling of reffos to Malaysia they should boldly expand the onshore facilities. Flogging detainess? Hell, Australians oughta be giving lessons in flogging. Colonial S.A., for example, should simply be razor wired in entirety and turned into a giant outdoor prison. Plenty of employment for the native population filling in forms and counting heads. Huge potential going undeveloped here for want of vision.
Tim Macknay said:
While I’ll have trouble proving “inevitably” to the satisfaction of someone like Hume, the record does seem to bear this out fairly strongly. Yes, there are a handful of countries, mostly in Scandinavia where this doesn’t seem to be the case, but here where we live and in the English-speaking world more generally, that slippery slope at least seems well-established.
As we know sometimes ‘natural’* human responses are not the best ones. What makes our species distinctive is the capacity to develop a paradigm within which to make choices, and to strive for consistency, and the maxcimisation of “good”. When we see things that seem to be anomalous or subversive of good, we should work out whether this is real or merely apparent, and respond accordingly.
It’s common behaviour to scratch at mosquito “bites”, and such conduct does bring momentary relief, but it’s counterproductive nonetheless.
* I’m demurring on the use of this word, and assuming you mean “common” or “normative”
LOL @Reverend Marsden #39. Perhaps we could convert (revert?) the majority of the continent to one big prison, with a couple of tiny excised areas – equivalent to what prisons are now – for the non-prison population?
That’s right Madam Helen. The technology of gated communities is already so well advanced that the leafy suburbs could be rapidly transformed to free redoubts while the rest can simply be pentitentiaries. What could be more prison like than residing in a hot, dry outer western suburb anywhere? We already have the means to keep them in: no public transport and the price of fuel rising daily.
Tim @ 22
Its possible, but a minimum of 1% of people in prison being wrongly convicted seems way too high.
And since both defence and prosecution rely on eye witnesses its also possible that putting less weight on eye witness information would not lead to a greater rate of false acquittals.
But Chris, the laura norder mob would actually prefer to have innocent people in jail than have guilty people unpunished. Provided those people are not like them, and most specifically not them – they’d change their minds if they thought they might be wrongfully accused but as upstanding citizens they believe it will always be others.
But if there’s people of the criminal classes running free they’re scared.
It’s much the same as the pro torture argument – they balance the torture of people who may be innocent against the potential benefit to the public.
Up until about 2001 the conservatives used to tell us we should be grateful we were colonised by the British and not some other country without the benefits of English law. Ever since 2001 they’ve been trashing those principles.