MICHAEL CLIFFORD: Not weighing up evidence on sentencing

Judges didn’t get with the spirit of mandatory minimum sentences, writes Michael Clifford

Micheal Gove spoke for many, when, at the height of the Brexit campaign, he declared: “People have had enough of experts.” What, after all, do experts know? Aren’t the issues on which they are allegedly expert really quite simple when you get down to it. Gove was referencing experts in the dismal science of economics, but in an age of populism, experts of all hue are being called into question if they dispute popular opinion.

There was an echo of Gove’s sentiment on The Pat Kenny Show on Newstalk this week. Kenny was interviewing Clare Hamilton, a criminologist from Maynooth University, who was talking about sentencing in the criminal courts. Hamilton was referencing research that suggested the use of mandatory minimum sentences did nothing to reduce crime.

Kenny read out a text questioning her approach. “Why is it that intellectuals like your guest use research rather than common sense to deal with these problems? Sometimes, on-the-ground common sense works.” There you have it. Experts who carry inconvenient truths can be easily dismissed because everybody knows convenient untruths are the way to go these days. Just ask Donald Trump.

While the dominance of emotion over reason is spreading at a rate of knots, there is one area where it has always been thus. Crime, and particularly the workings of the criminal justice system, have long been dogged by the notion that everybody knows what’s best — irrespective of the evidence.

This is particularly the case in relation to mandatory minimum sentences (MMS). For nigh-on 20 years, the latest outrage in crime has been met with the response that the only answer is applying mandatory minimum sentences for the particular offence. This, popular opinion would have it, will force the criminal to think twice before going about his business. The criminal will pause and reflect that if he is caught, he won’t get a soft sentence from a stupid or compliant judge. He will no longer have his own way; and consequently, crime will be reduced.

On a human level, the instinct to lash out in retribution in the wake of a violent outrage is entirely understandable. Particularly when somebody is brutally assaulted or murdered in the course of a crime, a sense of rage and impotence compels many to seek a quick solution.

Not weighing up evidence on sentencing

But policy is supposed to be made on the basis of research and evidence which points towards a better way of doing things. Among many politicians — and many elements of the media — research in this area is to be avoided in case it unearths inconvenient truths.

Mandatory minimum sentences were first introduced here in 1999 for drugs offences. Anybody guilty of possession of drugs valued above €13,000 received a mandatory 10-year sentence, with the caveat that a judge could reduce it in special circumstances. In reality, this rendered the sentence “presumptive” rather than “mandatory”, but presumptive does not have a tough ring to it so nobody in politics or the media described it in those terms.

Judges didn’t get with the spirit of the programme. For some, it may have been a matter of ego. Others, however, refused to comply with the spirit of the law simply because it was contrary to natural justice, failing to take into account the circumstances of a particular crime.

Over the years, convictions coming under the MMS legislation attracted the 10-year sentence in less than a quarter of all cases. What did happen is that sentences in general in the drugs area were increased as a result of MMS being there.

For instance, if the circumstances of a crime might ordinarily have determined that it attracted a three-year sentence, judges who declined to impose the mandatory 10 would probably hand down a sentence of around six years.

So sentences increased, prisons filled up, but there was zero impact on the incidence of drug crime.

What the hell, though — it sounded good and that was all that mattered. The popularity of MMS during the Celtic Tiger went through the roof. Gun crime, knife crime, rural crime, property crime — the response to all was to slap on mandatory sentences for offenders.

The mood was best summed up by a headline in the Sunday Independent at the time. “Mandatory minimum sentences are battle cry that will win crime war.” Except it was all rubbish. There is not one scintilla of evidence that MMS reduces crime anywhere. In the US, where the concept was first introduced in the 1980s, many states have been repealing or rowing back on these sentences for 10 years. The reality is that the only outcome from MMS is to fill up prisons with, more often than not, relatively minor offenders. This increase in the prison population numbers had no impact on the incidence of crime. Contrary to popular opinion, the criminal does not factor in the prospect of a mandatory sentence if he is caught.

Not weighing up evidence on sentencing

The Law Reform Commission — a collection of dreaded “experts” — reported on this in 2013, recommending the mandatory sentencing regime “that applies to certain drugs and firearms offences should be repealed and should not be extended to any other offences”. Far from being an effective tool against crime, the regime had merely led to an “increase in the prison system comprising low-level drugs offenders”.

That should have been the end of the argument. But the MMS brand is so potent for some politicians that they couldn’t help themselves.

In the recent election, Fianna Fáil was back beating the drum, promising “legislation for mandatory minimum sentences for those convicted of burglary offences”. Renua, God bless their cotton socks, went one better with a “mandatory three-strike sentencing and life would mean life for criminals”. This is based on the Californian model of a sentence of life without parole for anybody convicted of three offences, irrespective of how minor. Somebody forgot to tell the people in Renua that California is repealing that law because it has been such a disaster.

The Programme for Government has also made provision for MMS, this time for robbery with violence in the home.

Anybody pointing out that these policies have nothing to do with tackling crime or its causes is accused of being soft. In such a milieu, research is regarded as the enemy. It is notable that through the years of screaming that mandatory sentences were the answer, not one party did any proper research on the issue.

Instead, emotion was the compass. If it feels right, do it. If the choice is to satisfy entirely understandable emotion rather than formulate policy to tackle crime, then go with the former. In a world where inconvenient truths are a hassle, then opt immediately for convenient untruths.

So it goes with politics and the criminal justice system. So it’s going with much else in politics these days.


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