"MANDATORY sentencing might sound
attractive, but it's a nonsense."
So wrote my
Courier-Mail colleague Des Houghton, hardly a fellow
traveller with civil libertarians and bleeding heart lefties, so
it must be right.
However, it is possible he might have changed
his views since he wrote that in August 2011.
After all, if Attorney-General Jarrod Bleijie
speaks for the Government, it would seem that Premier Campbell
Newman too has had a heart bypass on the issue.
WHAT DO YOU THINK OF MANDATORY SENTENCING?
HAVE YOUR SAY BELOW
In June 2011, Newman was reported to have
ditched the Liberal National Party's policy of mandatory minimum
sentences, warning that it could lead judges and juries to let
guilty offenders go free to avoid the tougher terms.
"We don't want to go down the route of
mandatory sentencing for the reasons that I have said,'' he told
a Media Club lunch.
"But we hope therefore that the judiciary will
reflect community expectations.''
Bleijie, disagrees, petulantly declaring he
could extend the mandatory rules to ensure that criminals
convicted of burglary, car theft and sex offences go to jail.
Bleijie, who is yet to demonstrate he is
capable of drafting valid legislation to crack down on
littering, proposes the most reactionary laws since Ned Kelly's
mum was charged with "furious riding" in Benalla in 1875.
Rebuffed in the Court of Appeal in his bid to
become judge, jury and turnkey for sexual offenders, facing the
real possibility of having his bikie laws overturned in the High
Court and confronted with a judicial backfire on his
anachronistic solitary confinement rules, he has turned to the
base popularise of mandatory sentencing for property and sexual
And he has fallen back on the High Court,
which he noted had recently ruled that mandatory sentencing (for
people smuggling) is "valid and at the discretion of the
legislature to be introduced''.
True, but the court did not rule it was right
and it did not rule that it was effective.
It is wrong.
To quote Houghton again: "Sentencing criminals
is a complex, onerous task best left to experts trained to
examine each case on its merits.''
And it is ineffective.
The evidence from around the world is that
mandatory sentencing is, at best, a marginally effective but
hideously expensive way of reducing crime.
At worse, there is statistical evidence
(including from the Northern Territory) that its very
inflexibility can lead to an increase in property crime.
And it is difficult to find any evidence that
it reduces recidivism.
In the United States, the intergalactic leader
in banging up citizens, mandatory sentencing (particularly of
the three-strikes variety) has filled its prisons to overflowing
with no discernible benefit.
What it has done is establish an online
industry devoted to reporting terrible injustices and
demonstrating that such regimes are intrinsically
It has been such a dud that US
Attorney-General Eric Holder is moving to wind back mandatory
sentencing provisions that are stuffing federal prisons with
small-time crooks and junkies.
"Too many Americans go to too many prisons for
far too long and for no truly good law-enforcement reason,''
But, Queensland prefers to admire the petty
pink uniform initiatives of the posturing, possibly crooked and
definitely crackpot Joe Arpaio and his barbaric tent city penal
colony in Arizona.
Tough talk is seen to respond to voters' fears
but that, too, is problematical.
Australian researcher Peter Grabosky reported
that in the US a majority supported mandatory laws but, when
faced with specific cases, a similar majority favoured
exceptions to the rules.
However, there are no exceptions, not even for
larcenous grannies, under mandatory sentencing.
People, like pollies, are better at talking
the talk than walking the walk.
American lawyer and criminologist Frank
Zimring once wrote that "the problems with mandatory sentences
are not the result of 'sloppy drafting' but the fact that we
lack the capacity to define into formal law the nuances of
situation, intent, and social harm that condition the
seriousness of particular criminal acts.
"The tenor of these arguments is that just
sentencing requires an assessment of the special circumstances
of each case that only a judge is in a position to make."
Experience would suggest that in Queensland we
could not entirely discount the possibility of sloppy drafting.
Talk about double jeopardy for our civil liberties. Neil Morgan,
University of NSW Law Journal, concluded that mandatory
sentencing did not live up to its stated objectives but
pondered: "Perhaps the real question is nothing to do with law,
criminal justice or crime prevention.
"Perhaps it is whether the symbolic power of
mandatories is such that they help politicians win elections.''