Friday, September 28, 2012

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.


  1. Last night I heard media quotes to the effect that a man helping Victoria Police with their enquiries did not have a criminal record. This morning I commented to my wife that I'll be surprised if someone had vaulted straight from 'no convictions' to 'public enemy number one' without ever having come before a court...

  2. And as for all the other rape victims, many of them ethnically targeted... well we'll just right on keeping schtumm about them, OK?

  3. At a higher standard than 'beyond reasonable doubt' the death penalty is attractive for other than 'personal relationship' murders of jealousy etc.

    Pitch it at the Backpackers / Cobby murders level of offence and you can't go wrong.

    Another item, along with ceasing 3rd world Muslim immigration for a couple of decades, that can never be allowed to be put to a referendum because it will get up in a canter

    1. Life without the possibility of parole is sufficient to protect the community and preferable to the death penalty.

    2. "preferable to the death penalty"...

      In your opinion, alas not in mine or in a majority of voters. Let's have a referendum, where I'll give you 2:1 and take your money.

    3. I do not bet, because I do not have to bet; there won't be a referendum on the reintroduction of the the death penalty.

      Anyone who believes that state sanctioned killing is a proper response to criminal acts of violence is in principle no different to the people who they would condemn. Violence is either acceptable, or it is not; and I am afraid you have to chose. And If the state kills, it has no moral or ethical basis to judge those who do.

    4. When everyone chooses "anonymous" as a screen name it makes it hard to keep track - here are four in a row?! Why not at least enter a screen name, go to "NAME/URL", you don't need an email addy or anything, but at least start calling yourselves "Anon1" "Anon2" "Anon3" or something!

    5. what a pompous load of crap. do you say its ok for the state to lock someone up forever, but not to administer the death penalty? what is the essential difference? please don't tell me its because life is sacred, because that is manifestly not true - not true for the murderer, not true for the state. the state reserves the right to kill in war or when policy suits, be it euthenasing the old or aborting the unborn.
      indeed, for you to suggest the execution the murderer after a proper trial is the same as the murder it serves to punish and the further murders it prevents not to mention those untold numbers it deters, makes you an apologist for, if not an enabler of, murder. you treat the life of the victim as cheaply as the murderer which means in principle you are no better than the murderer (see, anyone can play your game)

    6. Rubbish.... state sanctioned violence is neither unusual nor counterproductive.
      The Police and Military exercise that option as a matter of course.

      You didn't mention why there will be no referendum on an upgraded death penalty, did you, because as you know it would get up by the length of the straight.

      Sigh, pity the vast majority of citizens cannot be heard and instead have their wishes ignored by the handwringing elites....a sad indictment and non-democracy.

    7. The military and the police have rules of engagement. They don't kill other than in necessity and direct response to ongoing violence; and they certainly don't kill once the subject is subdued. You on the other hand advocate the state sanctioned killing a person who has been captured and who can be contained to prevent other acts of violence against the community.

      The essential difference between life without the possibility of parole and the death penalty is that the state doesn't perform the same act that that it seeks in punish. I didn't say that life was sacred; but I do value equally all lives. It is inherent in your position that you do not, because you demand the right to kill in certain circumstances.

      If you are so certain that the death penalty is appropriate then I have two words for you; Timothy Evans. Look it up mate; and then ask yourself whether the death penalty is worth what happened to him. And don't give me any BS about being sure before the death penalty is available. I have worked in the court system for the last 27 years and I know that the system is not sufficiently reliable or free of police / prosecutorial misconduct or political interference to ever contemplate the re-introduction of the death penalty.

    8. "The essential difference between life without the possibility of parole and the death penalty is that the state doesn't perform the same act that that it seeks in punish."

      By your reasoning, it's also immoral for the State to arrest and imprison those who kidnap people and hold them against their wills.

      For if the police smash their way into a premise where a man who has snatched a child is holding her prisoner, and then the cart him away and hold him prisoner, is that not the State "performing the same act that that it seeks in punish"?

      I am not an advocate for capital punishment either, but smarmy and jejune arguments such as yours are not helpful to the debate.

  4. The crime was one of appalling, fatal brutality - like many others, over the years, which have had a similar chilling effect on all who were involved in any way with it.

    Who can forget the horrific death of Anita Cobby at the hands of a pack of male animals?

    I hope that you are correct, Professor - I hope that this murder - so close to the sensitivities of so many card-carrying members of the left intellectual heartland - will indeed generate deep soul-searching and vigorous discussion on effective sentencing for criminals who prey on the weak and defenceless.

    And I hope, Professor, that the discussion includes re-introduction of the Death penalty.

    Gobsmacked of Gippsland

    1. My blood oath!!
      Well said Gobsmacked.
      Of course the great truth of the death penalty is that they can't come back and do it again.
      I will concede there must be no shadow of doubt as to their guilt but I dare the pollies to hold a referendum.

    2. While our ABC left-liberals are pondering Deterence vs Punishment it might even occur to them that thugs in jail cannot rape and murder anyone out in the community. The longer the jail term, the longer we are safe. But I don't expect that logic would strike any chord at Media Watch.

      Pedro of Adelaide

  5. Crime statistics plainly show that people who commit sexual offences have a very high rate of recidivism and escalation. The man charged in Melbourne seems to fits that profile. The risk of recidivism by sexual offenders suggests that both the rate and length of incarceration should be significantly greater than current sentencing profiles. The simple reality is that convicted sexual offenders are a continuing post imprisonment risk to the community.

    1. Statistics show there is NIL recidivism and escalation amongst those who have been executed for their crimes.

  6. Keep fighting the good fight Prof.

    This is appalling.

  7. So if recidivism is high, the logical conclusion is to put criminals who will re-offend back on the streets sooner, right?

    Also, that lengthy excerpt does not once mention the victim of the crime but rather paints the crimimal as the victim, failed by the poor soul's mental illness.

    The disconnect between the mainstream public view and sentencing judges is that the public would like to see a little more emphasis given the to the real victims of the crime in the sentencing deliberations. But what do we know?

  8. Here in WA (my town) we have seen a man sentenced to 10 years for "manslaughter".
    He beat a woman to death at Christmas, he will be lucky to serve more than 8.
    It is difficult for anyone here to view any of the details of the case due to this rather high handed bit of Bumf from the learned few..
    "Only a limited number of criminal decisions are available online. From time to time the Court will publish sentencing remarks, which are available under the Criminal Sentencing Remarks tab. These remarks are kept on the website for a limited period of time, and are then removed"

    So in effect WA justice operates in a cone of silence. Unless its reported, or sighed "in action" you wont know the paticulars of a case.
    Im absolutely certain this is to stop people ridiculing some of the more bizarre convolutions presented as facts.

    And with all due respect to the ABC "family" I hope the perp is as lightly sentenced as the WA muderer, unless they start to see outrageous sentences on "their own" nothing will change.

    1. I have a hunch this was featured on 4 Corners on their recent domestic violence/killing episode.

      If I'm right then it's the martial arts guy who married a Japanese tourist and beat her to death because she left him.

  9. Punishment has more to do with receiving one's just deserts. Deterrent effects are a welcome by-product. German soldiers in Greece thought shooting all the males in a village for an attack on a German soldier would be a good deterrent; how just is that?

    1. No one is proposing shooting all tattooed 41 year old men to prevent future rapes mate.

  10. So if incarceration is no deterrent how about we bring back first the lash then capital punishment for rape and murder? Or is supposed blasphemy of the Prophet Mohammed the only offence to warrant death,because it seems that even the very young of one faith are being taught so and our own Australian cowards in coward's castle dare not denounce them!?
    I am seriously leaning towards the capital punishment argument now,after this heinous crime

  11. Dog, allegedly domesticated, bites ABC journos

  12. Long sentences are not just about deterrence, they're about prevention.

    A violent sex fiend locked up in prison is not going to rape, bash or murder any other women!!

    Of course if the six women you previously raped were ONLY PROSTITUTES rather than ABC luvvies..........

  13. It is with great regret that one conclusion is that we can no longer trust the judicial processes of the Western world to adequately protect the public from those who repeatedly demonstrate an utter distain for common decency.
    Perhaps it is time to consider ex-judicial extermination of those who patently demonstrate a total lack of contrition for behaviour that is unexcuseable and remains unpunished by a misguided judiciary.
    Perhaps those justices that are proven to be inadequate to the task of protecting the public should be relieved of their positions

    1. "Perhaps it is time to consider ex-judicial extermination of those who patently demonstrate a total lack of contrition"

      No. Just, no.

  14. What a load of pap!
    Sentencing not a deterrent?, Let the criminals disprove that after serving a full sentence, more appropriate to community expectations, (10,15,20 years etc, for serious crimes).
    Crimes committed during periods of diminished capacity?, They had to be sober/lucid when they decided to partake of alchohol/drugs in the first place - RESPONSIBILITY!!!
    Cost impost on the community - Simple!, look for ways to make prisoners pay a significant proportion of their own way, whilst serving their sentence, (additional deterrent value).
    All it takes is something academia fails to and life succeeds in teaching you - LOGIC & COMMON SENSE!

    1. The law does not operate on common sense solutions and relies on interpretations of the law by highly paid individuals who are so far removed from the reality of crime and its effects on its victims, that they may as well be making their determinations from the planet Mars.

  15. Castration, no, the full works, let them piss through a drinking straw.

  16. My thinking is that the sentencing thing is back to front. Instead of maximum sentences with time off for good behaviour or a shitty upbringing the law should set minimum times and add extra for increases in the severity of the crime.

  17. What is the name of the judge who in the rape case concerning a woman raped and left for dead in parkland in Wagga (I think) with her throat cut, decreed that she didn't suffer as much becuase she was nearly dead and unconscious?
    Sorry, can't find the reference to it, it was some time ago.

  18. Maybe if serving time became more a deterrent than what it is today, treated as an inconvenience by the career criminal, re-offending would fall away.

    When indictable offences (Felony requiring stiff prison sentences after being found guilty by judge and jury) such as Break, Enter and Steal in private homes or workplaces, can be dealt with summarily (local or County Courts that generally fine rather than impose maximum sentences of two years imprisonment only) it doesn't take long for the would be career criminal to realize, that the law is really an ass that has no deterrent value to his/her career.

    Locking someone up for three to six months for burgling several people's castle's, when if they were tried at a higher court for an indictable offence and found guilty, they could expect up to 14 years jail, is it then any wonder why soft sentencing rules have no deterrent value and are treated as an inconvenience, rather than a form of punishment, by those who prefer a life of crime than to work at an honest living.

  19. The luvvie article quoted suggests that if there is a 'perception' of an increase in incarceration, this can have a 'significant deterent effect'. OK - job for the men and women of the media to get that perception level up, once the Courts have decided they will get tougher.

    Some people will always act irrationally and make stupid decisions: I offer you the Bali Nine. However, more information about consequences might help.

    Personally, I can't support capital punishment. Da Hairy Ape and I disagree strongly on this, and I know him to be the best of men, whom I love and respect. Nevertheless, as a people, I do not think we should not kill in cold blood ourselves, it is not moral (for me), and too much like revenge. Also, such killings can occur on an unfair and poorly applied sliding scale. Also, you cannot bring those later found innocent back to life.

    A problem I have is that the hell of an endless incarceration seems to me to be much worse; I have no solution there because morally that is sometimes all that can be done. To say nothing of the costs, and the rights of victims and their families to feel a sense of closure. I am very conflicted on this issue and am sure I am not the only one.

    1. Elizabeth (Lizzie) B.October 1, 2012 at 10:21 PM

      oops Prof, in review later, I see a wrong double negative there. "I do not think we should kill in cold blood ourselves' is the correction.

  20. In the light of an above post's link:

    I've never been a "hang 'em, flog 'em" type but, Jesus Christ!, there are some people who should not walk on this earth.

    Why was this animal *ever* allowed on the streets again?

    I'd just like *someone* (after this is over) in the legal/government system to very publicly say "We got it wrong and need to change the way we deal with such people".

    Otherwise... why the hell do we pay these people?

    What use are they?


  21. suppose the penalty for murdering your average citizen was life in prison [meaning imprisoned until d.e.a.d], but the maximum penalty for killing a judge be only 15 years. then let's see if the judges think their own lives should be treated as cheaply as they currently treat that of the citizenry

  22. Here is my learned dissertation on the topic "Does Imprisonment Deter?"

    It does if you keep them in long enough and they come out in a Tobin Brothers station-wagon rather than a Taxi.

    Here endeth my thesis

    The Irish Lion

  23. I heard Faino last Friday on 774 and no doubt he and his colleagues are severely impacted by this tragedy.
    However, he seemed to almost immediately revert to the mantra of his alumni from inner-city legal services …. and sadly, many of this alumni are now on the bench. Using the guise of “sub-judice” there was an immediate shutting down of any discussion of crime, punishment, inadequate sentencing and the bench stacked with gullible bleeding hearts.
    Faino’s recurring theme was about what we do in a “civilized society”.
    Well …. Newsflash Faino ….. We cease to be a “civilized society” when we tolerate repeated barbaric and uncivilized acts and subjugate the rights of innocent citizens to the rights of the depraved recidivists to repeated shots at a rehabilitation which will never come.

    Rule 303