What cost the loss of an eyeball? The thumb of the right hand? Your sense of smell? The power of speech? As macabre as it was efficient, certain courts until recently used a hierarchy of disability, a “Table of Maims”, that set out levels of workers’ compensation for the loss of various body parts, or their effective use. With the unironic poetry of the law, existential questions were parsed down to the conventional weights and measures usually reserved for selling groceries.
A modern form of the table is still used in many workers’ and transport accident compensation schemes. But in criminal law, sentencing judges have no such table to evaluate the full spectrum of harms it is possible to inflict on another person and society. The contextual judgment required in sentencing is beyond the scope of reductionist tables because blameworthiness is a more nuanced matter when the most awesome power of the state – to take liberty – is at play. Sentencing demands practical answers to excruciating questions: How can the loss of a loved one and a communal sense of basic safety be reflected in units of time? Is Evil an element or a function? How should the answer matter?
Many legal and factual considerations are balanced to devise an appropriate sentence; a fact that will likely be drowned out in the popular response to whatever sentence Adrian Bayley receives for the rape and murder of Jill Meagher.
Public confidence in the criminal justice system is maintained, in part, by sentences that are in step with community values. This inevitably raises the questions of who speaks for “the community” and how its values can be ascertained. There are letters to the editor. Comment sections. Facebook pages. Tweets. Online forums. There are the results of government surveys appearing in the tabloid press, as they have in Victoria, giving minimal details of crimes committed and asking the reader to judge an appropriate sentence.
The sheer volume of public opinion that we have access to through the Internet and social media does not, however, mean that the majority of that opinion is well informed. Public confidence in the criminal justice system is also related to the level of understanding about the sentencing process. However, much of our media – social, online and print – concentrates on reporting or commenting on aberrant cases, with minimal detail, as representative of public safety. Explanations about how the sentencing process works – and why – do not sell as well.
The impact of the offence on the victim is a major consideration in sentencing. Because of the nature of their daily work, sentencing judges are perhaps most acutely aware that behind the black letter of the law there lies a human trauma. However the seriousness of a crime, and the sentence it therefore warrants, is measured not just by the harm caused but also by the degree to which the offender is culpable for it. For all offenders, regardless of the heinousness of their crime, the evidence and arguments presented at their sentencing hearing will go into an assessment of their blameworthiness. These will include victim impact statements and any prior criminal history on the one side; psychiatric reports and the practical value of a guilty plea on the other.
In each case, the judge must choose how to best achieve the purposes of sentencing – punishment, denunciation, deterrence of the offender, deterrence of others who would commit similar crimes, community protection, rehabilitation. These purposes often point in different directions.
The sentencing process also requires the judge to balance the need to tailor a sentence that is individualised to the particular circumstances of each case with the need to ensure equality before the law through a sentence that is reasonably consistent with sentences given previously in similar cases.
These considerations of punishment, equal justice, proportionality and community protection are each essential to the legislative requirement to impose a sentence “to an extent and in a manner that is just in all of the circumstances”. Legislation too is the product of community values.
The community’s abhorrence of the crimes in question will inform the court’s assessment of the seriousness with which it should be treated. However, public sentiment cannot supplant the other considerations which also go into devising a fair sentence. This balancing act required of sentencers is the difference between lynching and the rule of law. While sentencing policy can react to public outrage following a particularly violent crime (usually through a knee-jerk legislative response), individual sentences are rightly quarantined from these spikes in sentiment. These protections afforded to the unpopular are precisely what gives the sentences imposed for their awful crimes legitimacy and force.
Even from the point of view of an academic observer, it can be seen that sentencing is a task as unenviably difficult as it is thankless. The social media vigilantes who came out in unprecedented force and fury will be satisfied with nothing less than blood. The victim’s family will, regardless of the sentence and forever, be too aware that the absence of a loved one is a presence like dark matter or black holes. Women will continue to walk tensely home in the dark, their heart speeding up when they hear footsteps behind them.
This highlights that, without contradiction, the instrumental purposes of imprisonment are frustratingly limited. It can achieve the re-assertion of social norms through public condemnation of unacceptable behaviour and it can incapacitate particular offenders after the fact. The difference between populist claims about what judges “should” do and the reality of what sentencing can do, shows that sentencing policy cannot be made the straw man for larger issues of public safety.
Questions of why people offend, how imprisonment and parole should be used and when community protection is best facilitated through rehabilitation programs are questions of social and health policy as much as criminal justice policy. Their answers require an evidence basis. The good news is that such evidence exists. It is generated and explained by specialist research bodies like the Victorian Sentencing Advisory Council, also charged with community consultation and education. However, evidence-based policies require willing governments for implementation. This is not always forthcoming, as recently demonstrated by the Victorian Government’s recent dismissive response to the empirical evidence that, for certain offenders, imprisonment causes further offending.
The danger of the widespread, vigilante social media response to Adrian Bayley is that it will spill over to lower level offenders. Our punishment as a community for caring en masse about our sentencing system only in a superficial way – and, even then, only when awful but statistically-rare cases arise — is that we risk getting the law and order policy we deserve from politicians seizing on the momentum. We risk getting policy predicated on tabloid news reports and the number of “likes” on Facebook hate pages, policy that is extraordinarily expensive and does nothing to increase public safety.