Deter or Punish?

ON ABC RADIO this morning, much moving and heartfelt mourning for the broadcaster’s slain employee, Gillian Meagher, whose body was recovered, and alleged killer arrested, after what appears to have been a first-class job of detective work by Victoria Police’s Homicide Squad.

During the course of the long legal process to come – more likely at its end, when commentators will be released from sub judice’s strictures and free to weigh in – we can expect to hear much about sentencing and the judiciary’s obligation to keep nasty specimens off the streets. Some of this talk may even touch on the wisdom of slapping violent career offenders with slight terms, including those with priors for sex offences. This was a topic which drew the scorn some 12 months ago of Media Watch’s Jonathan Holmes, who took exception to a Sunday Telegraph campaign for longer jail terms and less tolerance for repeat offenders. When the Herald Sun also wondered how well our courts are serving citizens who pay judges’ salaries, Holmes took the bit between those death’s head teeth and went to town.

The show can be watched here, but for those with little time or less stomach for Holmes’ smuggeries, the view he advanced could be summarised thus: The public, simple souls, are apt to be stirred to intemperate passion by cheap and nasty newspapers whipping up outrage in the service of base commercial motives. As is his custom, Holmes quoted authority, and why not? When climate-change sceptics criticise the warmist establishment’s methods and motives, Holmes finds it rejoinder enough to quote those same settled scientists on the topic of their own veracity. On the subject of sentencing, it was more of the same, in particular an address by Mr Justice David Harper of Victoria’s Supreme Court, which provided the touchstone for Holmes’ dismissal of the newspapers’ concerns. Harper’s speech, delivered just days after blasting the press from the bench for criticising one of his sentences (see paragraphs 25 and more), can be read in full here, but the excerpt below would seem particularly germane to the post-trial debate that is destined to erupt when unfettered, post-trial discussion of Meagher’s alleged killer becomes possible:

… The article fails to acknowledge research which strongly suggests that imprisonment is not a deterrent, and is a huge impost on the public purse. In April this year, two months before the Sunday Telegraph editorial, the Sentencing Advisory Council of Victoria published a research paper entitled Does Imprisonment Deter? The Sunday Telegraph ought to have known where to find it. The research paper makes the obvious but important point that, “if a sentencing purpose is intended to result in a reduction in crime, then in order to determine what weight should be given to that purpose, it is critical to examine the evidence of whether or not – or the extent to which – that goal of crime reduction is achieved.”

The research paper then examines that evidence. It shows that people are frequently irrational. Even if fully mentally competent, they do not always make decisions that are in their own best interests. Their capacity to make appropriate choices, however, may be - and for those who engage in criminal behaviour often is - clouded by mental illness, or mental disorder, or the effects of drugs. Indeed, a 2003 report for Corrections Victoria found that two-thirds of all first-time offenders had a history of substance use which was directly related to their offending. This rose to 80% for males and 90% for women sentenced to a second or subsequent incarceration. The lesson is clear. People who have difficulty thinking rationally are difficult to deter.

The research paper concluded that, for a significant number of offenders, imprisonment did not act as a deterrent. This is evident from the rate of recidivism. I have already mentioned the figures released by the Productivity Commission. According to the Australian Bureau of Statistics, almost half (49%) of all adult prisoners in custody on 30 June last year in Victoria, and 54.6% nationally, had been in prison before.

Another conclusion drawn in Does Imprisonment deter? was that, while increases in the perception of apprehension and punishment have a significant deterrent effect, the threat of imprisonment, although having a small negative effect upon the crime rate, is generally insignificant as a deterrent."

So, sentencing is about deterrence, according to Harper, and stiffer sentences don’t do much to promote it. A curious perspective to the non-judicial mind, it is not an uncommon one. In the US some years ago, the New York Times marvelled that, while Big Apple criminals were being locked up in record numbers, crime rates were going down. The liberal mind, fixated on deterrence and root causes rather than punishment, finds the relationship rather hard to grasp.

In view of the grief to be heard in Jon Faine’s voice this morning, as he lamented his co-worker’s murder, one wonders if the social engineers' mindset that prevails at the ABC is now being reviewed, at least by some. The primary urge to save miscreants from themselves might, just might, be replaced by an appreciation that victims of crime deserve a good deal more consideration and protection than those who perpetrate it.