There were once days when fairness in the application of justice was a non-negotiable aspect of any common law-based legal system. Not anymore, however. The flexibility of punishment and sentencing options are no longer allowing the punishment to fit the crime. The rise of penal populism has been a vote winner for many political campaigns in recent years, the big characteristic being taking a harder stance on crime with the imposition of stricter sentencing. However, this mentality is often just a short-term vision to be recycled during the next campaign. It is an ironic cycle. After all, isn’t being tough on crime meant to stop it?
The short answer is no. To actually stop crime would require a massive and radical reorganisation of the justice system and taking more interest in offender reform, a prospect which, though effective, would take years to see its fruits flourish. In a four-year election cycle, such a thing is too long. Remember, politics is a game of staying in power for as long as possible, and democracy turns politicians into salesmen. If the public is worried about crime, a hard line is an easy option to keep or win power. Fairness makes a politician look soft on crime.
Now, throwing the book on those who deserve it is necessary. A serial-killer who is a clear and present danger to the community deserves life without parole. Sexual predators, they also deserve the maximum sentence. Repeat offenders? Why not? These are the upper end of the spectrum crimes, ones that are an affront to society and the values which it shares.
In the case of Sandra Dingard, convicted over smuggling drugs into a prison in Manitoba, Canada for her jailed boyfriend, this is where the problem with throwing the book at every offender becomes ethically questionable. Ms Dingard’s boyfriend, whom Winnipeg Free Press has referred to as having active gang ties, is serving sentence and has an extensive record not exclusive to drug and firearm offences.
Ms Dingard, on the other hand, had no prior convictions before and had made the effort to reform in the period between charge and conviction. The presiding judge, Justice Sheldon Lanchberry, acknowledged that, whilst duress in this circumstance was not an excuse, the fact that Ms Dingard had been manipulated brought into question the nature of mandatory sentencing, of which the punishment for this crime is two years imprisonment. Even the defence and the Crown Prosecutor agreed this was a crime which would be best served with house arrest.
Then there is also the case of Californian Jerry Dwayne Williams, the ‘Pizza thief’ who, on the back of previous criminal convictions including armed robbery and violating parole, was given a 25-year sentence for stealing a piece of pizza. Under California’s strict three-strikes law, only the first two needed to be violent, the third could be any ordinary crime. The attorney-general at the time, Dan Lungren, labelled it ‘A victory for the people of California.’ In reality, it was a dark pattern of what had occurred previously and what was to come.
In western countries, prison populations have increased dramatically over the past 50 years. In America, the population had risen from 750,000 or 161 per 100,000 to 2.3 million, over 700 per 100,000, though it had declined slightly during the Obama administration. Whilst imprisonment rates in Australia, Canada and the United Kingdom are closer to that of 1970 US rates, they themselves have trebled in comparison to similar rates around that time. What makes this even sketchier is the fact that in each of these countries, crime is decreasing.
So who are these people being locked up? Chances are they are petty thieves and drug addicts. Imprisoning them for what are generally non-violent crimes is a cop out to the ideas of prisoner rehabilitation western society prides itself on. For one, keeping someone in jail is quite expensive. For a minor criminal, that money could be better spent on rehabilitation. This leads into the second part, rehabilitation. Locking vulnerable people in jail with the violent thugs that belong in jail only does one thing – increase the reoffending rate. If politicians were true and honest about solving the crime, they would focus on rehabilitating minor offenders.
In an ironic twist, these laws actually encourage the judicial activism that it seeks to restrain. In the case of Ms Dingard, Justice Lanchberry reserved sentencing for several months to allow Ms Dingard the opportunity to make plans for the welfare of her children. In the Australian state of Victoria, Judges in many cases, even violent ones, refuse to apply the maximum, the ones that do are often done so on appeal.
Being tough on crime goes against every rational and moral attitude to justice. Of course, some criminals deserve the maximum. However, locking up minor and petty offenders is a sure fire way of creating an expensive criminal and penal crisis down the track. Of course, that doesn’t bother those responsible for making the laws – They are more than happy to play pass-the-parcel with future administrations.