LRC move no surprise

The Law Reform Commission report into mandatory sentencing found the system to be a cod, writes Michael Clifford

IN THE end, there wasn’t as much as a whimper from the usual quarters. Last Tuesday, the Law Reform Commission issued a report on the use of mandatory sentences. The report included extensive research, and examined practices and results in other jurisdictions. One of its main recommendations was that the system of so-called mandatory minimum sentences should be discontinued.

This system was first introduced in 1999 in relation to drugs offences, but was extended eight years ago to include firearms offences. The drugs offences, where it was primarily used, stipulated that possession of at least €13,000 worth of illegal drugs would attract a minimum prison sentence of 10 years, unless special circumstances applied. The latter provision meant that the sentences were “mandatory”, but actually “presumptive”, but mandatory sounded tougher so it was the term that was most frequently used by both politicians and media.

Over the last decade or so, mandatory minimum sentences were all the rage among the political and media classes, frequently wheeled out as the most appropriate response to crime in all its guises.

Yet, the LRC report was the first real attempt to conduct extensive research into use of the system. And it found the whole thing to be a cod.

Among its primary recommendations to the Government was the following:

“The commission recommends that the presumptive sentencing regime that applies to certain drugs and firearms offences should be repealed and should not be extended to any other offences. The report notes that the presumptive drugs offences regime has had the following results: the adaptation of the illegal drugs trade to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the illegal drugs trade, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent increase in the prison system comprising low-level drugs offenders.”

For anybody familiar with the operation of this system, the result from the LRC would have come as no surprise. Mandatory minimum sentencing has been a disaster, and the research from the US, which had first introduced such sentencing in the 1980s, bore out such a result.

As a tool in the criminal justice system it was blunt, and largely useless in doing the job for which it was designed. Apart from that, it was abhorrent to any concept of natural justice.

Politically though, it was long regarded as the sharpest tool in the shed when the objective was to present oneself as tough on crime. Anytime an outrage hit the headlines, politicians and large elements of the media lined up to declare there was only one way to tackle this particular crime — mandatory minimum sentences (MMS). Whether it was violent crime, or sex crimes, armed robbery or rural crime, burglary or corporate crime, a shrill chorus usually followed news of an offence, screaming that the only way these people would get the message is if they were made aware they would serve a minimum sentence irrespective of the circumstances.

I recall being in a radio studio on one occasion a few years ago when a broadcaster suggested that the only way to stop welfare fraud was to impose a mandatory minimum sentence for the crime.

On a human level, this instinct to lash out in the wake of a violent outrage is entirely understandable. Particularly when somebody is brutally assaulted in the course of a crime, a sense of rage and impotence compels many to seek a quick solution. And with MMS having gained currency among the political and media classes, here was the answer, the only real way to teach the criminals a lesson.

Of course it was all hokum. There was no evidence that holding MMS like a stick over criminals might compel them to think twice before acting. All research into crime shows that the only real deterrent to potential offenders is the prospect of getting caught.

But it sounded tough and that was the main thing. As with much to do at the interface of criminal justice and politics, the imperative was to position oneself on the side of righteousness, armed with the best solution against crime.

THIS garbage wasn’t just confined to the tabloid pages or to dumb politicians. Michael McDowell, an accomplished barrister, who had practised in law, made a song and dance of his belief in MMS when he was minister for justice In 2004, he chided judges for failing to apply the minimum tariff in the majority of drugs related cases. By then, many judges routinely invoked one of the special circumstances to impose less than the 10 years’ imprisonment.

One typical case to come before the courts was that of Sophie Malric, a 30-year-old French woman who was caught transporting €210,000 worth of cocaine from Senegal in 2010. She was given the so-called mandatory 10 years. She had been in reduced financial circumstances and was paid €50 for doing the run, and told she would receive €2,500 when it was completed. She had no previous convictions and was described as being very naive.

While she had obviously done wrong, did she deserve a sentence that was greater than one that might apply for a violent rape, armed robbery or unlawful killing?

The court of criminal appeal didn’t think so and reduced her term to seven years with the last four suspended. Last week’s LRC report found that it was minor criminals such as Malric who were mainly affected by mandatory sentencing, with very little benefit for society at large.

Notably, none of the political parties that championed MMS ever did any research into its use. It wouldn’t have taken much to pay a legal intern to sit in on sentencing hearings in the Circuit Criminal Court to research why judges were reluctant to apply the tariff in most cases. This would have enabled legislators to understand how the system worked, and the calibre of criminals that were being condemned to 10 years in prison for relatively minor offences.

However, researching the system might have robbed politicians of the tough-guy rhetoric. How could they fulminate about MMS if they had before them evidence that the system was both unfair and useless in tackling crime? In any event, if they were really interested, all they had to do was look to the USA, where states have been repealing their mandatory sentencing systems for the last 15 years.

It took austerity and the high cost of imprisonment for a government to properly examine the policy. In 2011, Justice Minister Alan Shatter asked the LRC to investigate its operation, and last week’s report showed that it had all been a waste of time and money. And with evidence finally in the public domain that illustrated the redundancy of the system, there wasn’t a tough guy in sight to fulminate that we needed more not less mandatory minimum sentencing.

Perhaps it was a policy that suited the times we used to live in, one more example of that excess and ignorance that informed so much public policy before the walls came crashing down.