The Tabloid Justice Consultation
Posted by Dave Bath on 2011-08-02
The consultation about sentencing by Ballieu’s Vic Libs seems, from the structure, bent on whipping up another Laura Norder storm.
To be fair, it’s better structured than a typical yes/no "do crims get off too lightly" reader poll in a tabloid, but it is still dangerously simplistic.
At the end of the survey is a list of factors that might alter sentencing, things like whether the person was drunk, low IQ, impact on the victim… This should have come first, before the section asking for judgements on case studies. (Ask any teacher about well designed exams – you do the bits with individual elements first to get people warmed up, then give the questions that require all the elements to be integrated!)
The people putting the question together know the difference this arse-about structure makes … and how reticient people would be to go back umpteen web pages to moderate prior judgements after being prompted by a general principle.
Even then, the list of general principles was devoid of nuance, and some pretty basic elements were not there.
Sure, there was low IQ to moderate sentencing, but nothing about significant depressive episodes or financial stress. Nothing to allow you to say "financial distress or depression or low IQ are reasonable reasons to lighten a sentence if it’s a theft not an assault; previous good character and being intoxicated/remorseful might moderate sentencing if you’ve put a brick through a window, but not a face."
Was there anything about penalties for theft being bumped up or down if the person was wealthy and didn’t need the money? No. Surprise! They don’t want that meme to whip up popular opinion and appear in their report!
And now to the case studies themselves that came first, each giving a very brief account of events, the maximum sentence, a call for your notion of a sentence and non-parole period.
At first glance, one case study might have nuance – but the nuance is completely voided by the lack of similar cases with one variable changed.
There is no indication of current sentencing practice for similar cases – just the maximum for the worst instance of that offence and no indication of what the worst circumstances are.
Take the question about the Year 12 and 10 students, aged 18 and 15, sex occurring in the bedroom, after the boy had gone out to buy condoms as agreed between the kids.
Now, was the boy nearly 19 and the girl just 15, or the boy just 18 and the girl nearly 16? It makes a difference. Did they have a similar case studies with the age/genders the other way, or with two male students, or two female students? Did they ask a similar case where there was no condom use, no special planning?
Especially these days, with so many 15 yo old girls sexually active, I’d want to know more about the relationship – how the one that was caught might have been gentler and more constructive than the many unreported that have one manipulative person, no real care, and the sex happens somewhere grubby.
Were there in each case a short list of the factors to allow you to indicate whether you considered them relevant? No.
Oh… Yeah, nice chunking of the multiple choice sentences – almost as bad as "fine, 0-1 year, 1-2 year, 2-5 year, 5-25 year, life" Would it have been that difficult to ask for a number of years?
A friend, a lawyer, got angry very early on – had to stop – saying she needed much more infortmation. I had exactly the same feeling.
Oh, there is room for general comments on sentencing – but on the PDF for you to write on and email back, you could bare fit a tweet in that box!
And… no I’m looking at the "long survey" not the quickie!
Now, it cannot be about impact on lives, as having your life savings taken by a white-collar criminal is just as damning. It’s not about developing good guidelines as there is nothing in the case study design, taken together, that will allow any reliable teasing-apart of just what people consider important about particular crimes and their circumstances (likelyhood to re-offend, etc) It’s not about getting any subtlety as otherwise there’d be more than a couple of lines for free-form comment, probably less than twitter’s 140 character limit and certainly less than a facebook status update of 400 characters … unless you wrote it with a microscope!
It’s for headlines, not reform, and not for long term safety.
This isn’t Ballieu’s Liberal Government unless he has been a wolf in sheep’s clothing all his life. Is he actually in control? If not, he should resign to prove his internal party enemies, the Abbott-loving extremists, are running the show.
- At the Victorian Department of Justice:
- For information on the inadequacy of information and sentencing practice, see "Sentencing by plebescite" by LegalEagle at Skepticlawyer (2011-08-03) … and follow the links. LE, a lawyer teaching at Melb Uni, says
If you look at the Sentencing Advisory Council website, you will see that a variety of research has been conducted which confirms this research. Consequently, the general trend is this: people who have the information before the court think that judicial sentences are appropriate. People who have a newspaper-style article with limited information are more likely to think that a sentence is inadequate.
- "Dodgy DOJ Survey designed to trick Victorians into calling for harsher sentencing" – Jeremy Sear at Anonymous Lefty (2011-08-29) – and thanks to LE at skepticlawyer for alerting me to Jeremy’s post. Jeremy has correctly covered the politics and motives:
Pleasing the Herald Sun, pleasing donors who build and run prisons, looking like you’re doing something about crime (that will, conveniently, probably get worse as you train minor offenders in prison to be more serious offenders, thereby prompting the building of more prisons, ad infinitum), enjoying the satisfaction of putting poor people behind bars. I don’t know – I’ve never quite grasped why locking someone up is such a vicious pleasure for people not motivated wholly by revenge.