Should Policy Makers Listen To The Experts Or To The Public?


Public opinion about crime and punishment is playing an increasing role in Australian justice policy. The trend towards policy-makers seeking to understand what the public want and using this information to shape policy is, broadly, to be welcomed. This is democracy at work after all. The criminal justice system is a public service and it is right and proper that justice policy responds to the public.

Public perceptions of crime and punishment, however, are often at odds with the evidence as Paul Farrell’s article on NSW prison statistics clearly indicates. The rate of imprisonment in NSW is almost twice that of Victoria and has been increasing since 1999.

In spite of this tough approach, people in NSW feel no safer than residents of other states and the evidence suggests that the tough approach isn’t working. Recidivism rates in NSW are markedly higher than in Victoria.

A wide discrepancy between the views of the public and the practice of the justice system undermines the legitimacy that institutions of criminal justice rely upon, not only to justify their very existence, but also to foster public cooperation and ultimately compliance with the law.

NSW has, over recent decades, experienced many electoral auctions based on the theme of law and order — a battlefield from which few winners generally emerge, particularly among the citizens of NSW. Despite having the toughest bail laws and the longest relative prison sentences in Australia, increased police powers time and time again, a high rate of imprisonment per capita and a growing prison population, citizens still express relatively low levels of confidence in our criminal justice institutions.

A 2008 NSW Bureau of Crime Statistics and Research report found that a large proportion of a NSW sample did not trust the criminal justice system to deliver justice to victims of crime. Only 34.7 per cent of respondents thought that the criminal justice system met the needs of victims, while 29.7 per cent thought the system dealt with cases promptly and 43.7 per cent thought the system worked efficiently.

Yet the shrill pitch of law and order auctions only has the effect of ramping up fear and anxiety about crime, thus — ironically — eroding the very confidence in criminal justice that policy-makers suggest they are seeking to increase.

A striking finding from criminological research is that, while many people report lacking faith in the sentences that judges hand down, they also have little knowledge and awareness of actual court sentencing. When they receive more information their faith can be restored and when tasked by researchers to choose a suitable punishment for a given criminal case, people tend to be in agreement with most legal judgements. At the heart of low public trust in the courts may therefore be a complex mixture of low trust in experts and low knowledge of criminal justice.

There are dangers when governments respond too quickly to public pressure. Criminal justice risks becoming vulnerable to shifts of public mood and political reaction, adopting populist currents for short-term electoral advantage rather than their actual value in reducing crime or promoting justice. As the US-based criminologist David Garland has observed, the emotional temperature of policy-making increases with the constant invocation of an angry public — tired of living in fear — demanding strong measures of punishment and protection.

Early in 2009 the Sydney Morning Herald reported that NSW Opposition spokesman on justice, Greg Smith, had called for a truce in "law and order auctions". He noted that hard-line sentencing and prison policies — including those put forward by his own party — had failed, and he was right.

But unfortunately, the actions of both the Opposition and the Government since then suggest that they are again falling for crime’s strong and seductive electoral appeal. They are not alone.

In 2008, UK Justice Secretary Jack Straw wrote an op-ed in The Independent which argued that the "criminal justice lobby" had forgotten about victims. There was, Straw declared, a need to refocus the system to increase public confidence in its function: "It begins with the language we use. Punishment and reform. Two simple words. Let’s have them back." Earlier this year, Straw launched a National Victims’ Service with a speech that reiterated this tough "punishment and reform" approach. 

In other words, the default political position to reinstate public confidence in criminal justice is to get tough. It need not be so.

As any policy-maker or justice professional in the field knows, such a response is likely to result in limited short-term gains at best and catastrophic long-term results at worst.

While prisons may work well as sites of incapacitation, they are not particularly successful sites of rehabilitation. Prisons are also expensive for a state like NSW whose financial woes need no rehearsing here. Due to the nature of their offences the vast majority of inmates will serve sentences of less than five years despite tough NSW truth in sentencing legislation. On release there will be an approximately 60 per cent chance of reoffending within two years.

US academic Vivien Stern has described the international move towards mass incarceration as a "sin against the future" due to its far-reaching social consequences. In NSW, when the indirect costs of imprisonment, like health and impacts on families, are added to the high tangible costs, the effectiveness of this response to crime is drawn into stark relief.

So how should policy makers balance the evidence and public pressure to get tough on crime?

First, making harsher policy simply because of low trust makes no sense: people are as harsh as current policy and they do not trust experts so they will likely not believe reports of harsher policy.

Second, trust and confidence should be important not because they tempt policy-makers to pander to the public when they judge trust to be low, but rather because trust is intimately related to compliance with the law and cooperation with the police and courts. When citizens view the police and courts to be effective, fair and to share the values of the community, they are more likely to abide by the law and support the justice system to fight crime and promote justice.

The criminal justice systems should be seeking to treat citizens with respect and dignity, to increase efficiency and enhance their effectiveness, and work to ensure that they pursue the means and ends of diverse communities across Australia. And if a message about criminal justice policy needs to be heard in the population, let that message not be one of how tough and punitive the system is, but how fair and transparent it is.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.