Hard on crime, without any hard facts

The high cost of locking up low-level criminals for long periods began to bite, writes Michael Clifford.

THE Supreme Court this week dealt a blow to the politics of acting the clown.

On Wednesday, the court issued a ruling about mandatory minimum prison sentences.

The court ruled that a mandatory minimum sentence for the possession of a firearm on a second offence was unconstitutional. The challenge to the law was taken by Wayne Ellis, Landen Road, Ballyfermot, in Dublin. He had received a five-year term, the minimum that could be imposed under a 2006 law, for possession of a shotgun.

The opinion of the judges was that the law “impermissibly crossed the divide” of the separation of powers. In other words, the politicians had taken it upon themselves to nip over to the courts and take up the role of judges.

And why wouldn’t they? The body politic foams at the prospect of imposing mandatory minimum sentences (MMS). They tie the hands of sentencing judges, obliging the imposition of a minimum prison term for specific crimes, irrespective of all circumstances.

To use the phrase de jour, mandatory sentences are the perfect instruments of virtue signalling. Uttering the phrase “mandatory minimum sentences” marks a politician out as somebody who is tough on crime, in solidarity with the victim, and mad as hell and not going to take it anymore.

Frequently, a TD will stand up in the Dáil and declare that a particular crime can only be properly tackled with the introduction of a mandatory sentence.

To disagree with such a declaration is to risk being labelled soft on crime”.

This, in turn, will lead to political opponents on the doorstep referencing the soft deputy’s softness.

So, it’s really a race to come up with the latest crime that merits an MMS and daring anybody to disagree with you. The fact that introducing such sentences will not, according to all research, make a blind bit of difference to the incidence of crime, or to those committing it, is quietly ignored.

It’s all about how things look, irrespective of what damage may be done to the idea of an independent judiciary in a functioning democracy.

The appetite for MMS has spread far beyond the Oireachtas. Garda associations frequently call for one for crimes against their members. Other organisations, representing emergency workers, have done likewise.

At public meetings about rural crime, there are repeated calls for an MMS for burglars. In recent years, following a spate of attacks against elderly people, the calls have focused on an MMS for violent crime against senior citizens.

The sentiment is entirely understandable. Violent crime is a visceral business. When, for instance, a report surfaces of an elderly person in a rural area being attacked for money, initial sympathy for the victim quickly morphs into anger at the perpetrator. These emotions are common to all of us.

And in a state of helplessness over a vicious form of crime, people will reach for the most instinctive solution: Keep ’em locked up. Teach them a lesson that they won’t be getting away with this any longer. The judges can’t be trusted. They’re not angry enough.

That was the kind of politics that introduced the MMS in the USA in the 1980s. Some bright spark decided that anger at the drugs epidemic could only be sorted through mandatory minimum sentences imposed on anybody caught in possession of illegal drugs. The policy soon spread to other kinds of crime. Politicians in all national and state forums expressed their anger at the drugs war and their satisfaction that the solution had now been found.

And nothing changed. The high cost of locking up low-level criminals for long periods began to bite. By the turn of the century, 23 states had begun reversing the sentencing policy. Others followed suit within a few years.

Those were the days when we were always a decade or two behind the Yanks.

In 1999, the government introduced mandatory minimum sentences of 10 years’ imprisonment for anybody caught with illegal drugs worth at least €13,000.

There was a catch. The strength of the Constitution meant there had to be a get-out clause. So the mandatory sentence couldn’t really be mandatory.

Judges were allowed to depart from the minimum sentence in “exceptional circumstances”. The mandatory minimum sentence was, in fact, a “presumptive minimum sentence”, but the latter phrase was never used, because it didn’t sound tough enough.

The outcome of that policy was that, for many judges, the “exceptional circumstances” became the norm because, presumably, in their opinion, the minimum sentence in no way reflected the circumstances of particular crimes.

None of it made any difference to the proliferation of drugs or associated crime.

Still, that was not the point. Sounding tough was what it wall all about. The media got in on the act, as well. One of the more ludicrous declarations in that respect was a headline in the Sunday Independent at the height of the Celtic Tiger.

“Mandatory minimum sentences are battle cry that will win crime war” it blazed. Substitute “votes” for “crime war” and perhaps there was some truth in it.

The culmination of all the fulminating was a new law, in 2006, for an MMS for possession of a firearm. This time, there would be no exceptional circumstances. 

This time, there would be no more Mr Nice Guy. And so it went, and so it ended this week, when the Supreme Court found that acting the clown was all very well, as long as you didn’t stray across the constitutional divide.

Despite this, there will, undoubtedly, continue to be calls for more mandatory minimum sentences, for the foreseeable future. Politics, particularly on crime, is all about perception. It doesn’t matter what the reality is. The only concern for the politician is to come across in such a way that voters can listen and nod and agree.

The irony is that there is a very obvious reform in sentencing that could have a major impact on, if nothing else, confidence in the tariffs handed down by judges.

Sentencing guidelines would not tie any hands and provide for an input from both political and civil society in recommending guidelines.

Judges would be constrained from flights of fancy, but still have discretion, depending on circumstances.

But sentencing guidelines is not a term that can be spat out in anger. So there has been little push in the body politic — apart from, perhaps surprisingly, Sinn Fein — for legislation in that regard.

So it goes at the interface of crime policy and politics. If only acting the clown in this regard was a harmless business, but, unfortunately, it’s not.

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