The Attorney-General correctly described the
relationship between the executive and the judiciary this week
when he said that "the legislature makes the laws, the judges'
job is to interpret and apply to the laws."
However, the mandatory sentencing laws proposed
by Mr Bleijie are a clear attempt to remove the judiciary's duty
to interpret and apply legislation.
Mandatory sentencing laws require a judge to
deliver a sentence without considering the particulars of the
case in question.
The judicial power of discretion is essential
to a fair and democratic justice system.
Mandatory sentencing offends the principle of
proportionality - that the punishment must fit the crime.
The absence of proportionality in a sentence
is considered in some Western countries to be indicative of
cruel and unusual punishment.
In removing any judicial discretion, mandatory
sentencing leads to unjust outcomes.
Minor offenders, offenders with mental
illness, and young offenders all go to jail for the same period
of time under mandatory sentencing laws.
For decades, studies have consistently
demonstrated that mandatory sentencing is not successful.
In October this year a statement from 32
leading researchers in the US stated: “Decades of empirical
research, including a recent meta-analysis reviewing over 29
separate studies of the effectiveness of policies and programs
that attempt to reduce firearm violence, have established that
“policies [like enhanced prison terms] rooted in the deterrence
theory framework . . . have been shown to have little empirical
A group calling itself Right on Crime, with
members such as former Republican Governor of Florida Jeb Bush
and leading small government advocate Grover Norquist, is
campaigning to reduce reliance on mandatory jail terms in the US
because on a cost benefit analysis they are a dismal failure.
Advocates for mandatory sentencing, including
the Queensland government, maintain that crime rates decrease as
a result of a "tough" approach on crime.
The logic they employ is that the longer a
criminal is incarcerated, the less likely they are to reoffend
once they are released.
This thinking is a dangerous misunderstanding
of human behaviour.
An American review of four decades worth of
studies on reoffender rates found that longer prison sentences
were associated with a 3 per cent increase in reoffending.
Particular discrepancy was noted between
prison and community based sentences.
There was also an increased likelihood that
low risk offenders would reoffend if they served long prison
The severing of ties to the community and loss
of opportunities which result from a long prison sentence
increase the likelihood that an individual will reoffend.
Given the impact of a prison sentence on both
the individual and the community through possible reoffending,
it is prudent that the circumstances of the offence are
considered before determining a sentence.
Mandatory sentencing does not deter crime for
the basic reason that humans are not as rational as policy
Most criminals do not believe that they will
be caught and many crimes are committed while an individual is
under the influence of alcohol or drugs, or otherwise impaired.
When these factors are considered, it is only
logical that the threat of mandatory sentences proves an
ineffective deterrent to criminal acts.
By implementing mandatory sentencing, the
Queensland government is not blithely ignoring international
pragmatism but also internal reports on the state of the
Australian judicial system.
A recent Senate report by the Legal and
Constitutional Affairs References Committee noted that the
economic costs of imprisonment in Australia are "enormous".
The Report on Government Services 2013 stated
that in 2011-12, the total cost per prisoner per day was $305.
The former report also noted the indirect
costs created by the lifecycle of offending that often results
from juvenile detention.
This cycle leads to the loss of skill
development and a life of permanent employment.
These figures indicate that increased jail
sentences will come with a hefty price tag.
The facts and history speak for themselves.
Mandatory sentencing and the concept of 'the longer you do the
time the more you'll learn', don't work.
In fact, in most instances they're a
As a state, we can do better in getting the
balance right between ensuring that sentences fit the crime, but
also serve the purpose of helping to minimise re-offending in
Michelle James is a Brisbane Lawyer
and Queensland President of the Australian Lawyers' Alliance.
Greg Barns is a barrister and a former National President of the
Australian Lawyers' Alliance