Today the NSW Premier Barry O'Farrell proposed a range of mandatory minimum sentences in response to widespread concerns about alcohol related violence. In short, his government wants to change the criminal law to say if a person commits a violent offence while intoxicated then, regardless of the circumstances, they must go to jail.
This is the kind of politics that plays well on talkback radio, but will it work in practice to reduce violence on our streets? The simple answer is no. In every jurisdiction where they have been tried mandatory sentences have not only failed to deter offenders, they have had a disproportionally negative impact on already marginalised and vulnerable people.
Across NSW, the rate of alcohol related violence is trending down, but that does not mean policy makers should not act. Every life that is lost or damaged from alcohol related violence is one too many. That’s why we have an obligation to pass laws that will actually work to reduce the violence.
But the fact is that tougher sentences only come into play after the violence has occurred, when the real work needed is to stop alcohol related violence happening in the first place. Most fundamentally, mandatory sentencing involves a prison sentence being determined by politicians in Parliament before the facts of any one offence or the circumstances of the offender are understood. Given the wide variety of circumstances in which assaults occur, mandatory sentencing will inevitably lead to unjust outcomes.
The rationale for this move appears mainly punitive, but there are also many in the media claiming that this is the only way to stop an increase in such offences. After two decades of pushing mandatory sentences in a never-ending war on drugs, the United States is now seeing bipartisan support to wind back these laws whose main impact has been more prisoners rather than less crime. As the US Attorney General Eric Holder said in a speech late last year, mandatory minimums:
"oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They — and some of the enforcement priorities we have set — have had a destabilising effect on particular communities, largely poor and of colour. And, applied inappropriately, they are ultimately counterproductive.
Closer to home, the Northern Territory began experimenting with mandatory sentences in 1997. The NT experience was that crime actually increased when mandatory sentencing was in effect, and went down when it was repealed. This makes some sense when you understand that it is not the length of sentence that has an effect on offending, but the likelihood of getting caught. There is a role for smarter policing, but not longer sentences, in deterring crime.
The evidence also shows that mandatory sentencing disproportionately impacts on Aboriginal offenders. In the NT for example there was a 223 per cent increase in the number of Indigenous women incarcerated in the first year of operation of the mandatory sentencing legislation. In fact in 2008 the UN Committee Against Torture recommended the abolition of mandatory sentencing because of its “disproportionate and discriminatory impact on the Indigenous population”.
It is not just Aboriginal people, but young people, poor people, the homeless and mentally ill who will bear the brunt of mandatory sentencing if it becomes law. It is no surprise that a conservative government is moving to amend the criminal law to single out these groups for special attention.
The arbitrary nature of mandatory sentencing means that such sentences easily become disproportionate to the crime committed. A one size fits all approach means that the sentence given is not tailored by the court to match the seriousness of the offence despite the fact that the court has heard the relevant evidence and understands the context of the offence.
Just one element of the Premier’s reform package, a two year mandatory minimum sentence for any person convicted of assaulting police while intoxicated, highlights the issue. At law an assault can amount to as little as a slight push or a non-consensual touching. This change alone will inevitably see many of the most disadvantaged, who already regularly come into contact with police, facing harsh and unjust prison terms.
Of course NSW was founded as a result of a mandatory sentencing regime gone mad. In England at the end of the 18th Century death and transportation were the standard mandatory sentences for a range of property offences. It didn’t reduce crime rates in England but it did send thousands of convicts to NSW. These mandatory sentences were largely abolished in England in the mid-19th century when a more rational approach to crime and punishment was taken. So it makes for a nice historical turn of the wheel to see the former convict colony founded on an inherently unfair mandatory sentencing regime, move to bring its own post-colonial version.
Mandatory sentencing is unfair, discriminatory, expensive and it doesn’t work to reduce crime. An approach that relies on mandatory sentencing to “be tough on crime” does nothing of the sort, and rational lawmakers need to stand up and make it clear that this will not be tolerated.
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