Abolish mandatory sentencing
By Sean Healy
The massive public outcry against the Northern Territory and Western Australia's mandatory sentencing laws has forced the laws' proponents into a corner. But, rather than see reason, NT Chief Minister Denis Burke, WA Premier Richard Court and Prime Minister John Howard are defending these punitive and racist laws to the bitter end.
The NT's mandatory sentencing laws, passed in 1997 with bipartisan support, provide for fixed jail terms for a wide range of offences: 14 days for the first offence, 90 days for the second and one year for the third. Offenders aged 15 or 16 are mandatorily sentenced for 14 days for the first offence and 28 days for second and subsequent offences.
WA's mandatory sentencing law, passed in 1996, also with bipartisan support, deals specifically with home burglary offences. An adult or juvenile convicted of a third home burglary offence must receive a 12-month minimum jail sentence.
Public rallies in Alice Springs and Darwin on February 22 showed the depth of anger in the Aboriginal community, and amongst non-Aboriginal supporters of human rights. Demonstrators blamed the NT law for the death of a 15-year-old Aboriginal youth, who died in the Don Dale Juvenile Detention Centre on February 10. He had been imprisoned under the law for stealing $50 worth of textas, pens and liquid paper.
Australian Greens senator Bob Brown plans to introduce a private member's bill to overturn the two states' legislation. A Senate inquiry into the laws is now meeting and plans to submit its report on March 9.
Opposition stretches into the establishment itself. Prominent figures who have called for the federal government to overturn the states' laws include former PM Malcolm Fraser, former chief justice of the High Court Gerard Brennan, World Bank president James Wolfensohn, Australia's highest ranking indigenous police officer and several Liberal MPs.
United Nations secretary-general Kofi Annan has asked the UN Human Rights Commission to look into the legislation and report to him.
Kilty O'Gorman, a spokesperson for Justice Action, which has campaigned for many years against mandatory sentencing, is heartened by the public reaction. "It's sad that it took the death of a 15-year-old to do it", she told Green Left Weekly, "but the outrage does give me hope that this will bring into question not only mandatory sentencing laws but the whole way we deal with policing".
The law's proponents are digging in, however.
Howard has said he does not believe mandatory sentencing is "sufficiently serious" to warrant overturning the states' laws and has ruled out a conscience vote for Coalition MPs on the issue. "We don't normally want to be interfering in these things unless there are compelling circumstances", he told the Nine Network.
WA's attorney-general and premier have both warned Canberra, and the United Nations, to "mind [their] own business". Attorney-general Peter Foss described his state's laws as "extremely lenient".
Burke has been even more aggressive, claiming overwhelming public support for his position. He announced that he will turn the March 11 by-election in the safe Country Liberal Party seat of Port Darwin, vacated by former chief minister Shane Stone, into "a referendum on mandatory sentencing".
Burke has denied any connection between his government's law and the 15-year-old's suicide, saying, "There will always be deaths in custody".
Writing in the Australian on February 17, Stone, the architect of the NT's mandatory sentencing law and Howard's choice for the federal Liberal Party presidency, said, "Territorians, like most Australians, are sick and tired of grubs who break into their homes, steal their cars and anything else not nailed down. Yes, the legislation is harsh — it is designed to punish and to deter."
He denied claims of racism, however. "The Northern Territory legislation doesn't discriminate between black and white — break into somebody's home, steal their car or vandalise the local school and you go to jail regardless of colour."
Stone said, "The critics claim mandatory sentencing doesn't work — all I can say is that their approach of offender first and victim second has been proved an abject failure".
Requests for statistical evidence from the NT government that prove the law works have not been forthcoming. "It works", was about all Burke's spokesperson could say. Why? "Because that's the government's position."
There is ample evidence to prove the opposite. Not only does mandatory sentencing fail to reduce crime, it is racist in both its intent and impact.
Whether imprisonment, in general, can deter crime is questionable. The Australian Institute of Criminology's (AIC) October report, "Imprisonment in Australia: Trends in Prison Populations and Imprisonment Rates 1982-1998", states baldly, "There is no evidence that greater imprisonment acts as a major deterrent to potential criminals, given the small detection rates for most crimes".
The evidence that mandatory sentencing reduces crime is even weaker.
Australian Bureau of Statistics figures show that the number of property crimes in the NT dipped slightly in 1997, after (although not necessarily because of) the introduction of the legislation. But it rose again the following year. In WA, there was a significant fall in the number of property offences in 1996, although this could have had just as much to do with new laws on second-hand dealers as with the mandatory sentencing law. But in the next two years, property offences rose again.
A 1996 study of mandatory sentencing laws in five US states concluded that they prevented little or no crime. Another US study, by the RAND corporation, concluded that every US$1 million spent on California's "three strikes and you're out" laws would prevent 60 serious crimes, whereas the same amount used to provide parent training and assistance for families with young children at risk would prevent 160 serious crimes. Giving cash incentives to induce disadvantaged high school students to graduate would prevent 258 serious crimes, it said.
The AIC's December report on the subject concludes that mandatory sentencing may produce, at best, a "modest" reduction in crime, albeit at high cost. "The large government investment required by mandatory sentencing laws would arguably return a much greater yield in terms of crime prevention if it were invested in prevention policy in areas such as education", the report stated.
Aborigines have borne the brunt of these laws. Of the 88 cases which resulted in mandatory sentences in WA, three-quarters involved Aborigines.
According to the Aboriginal Legal Assistance Fund, in the first year of mandatory sentencing in the NT, the number of Aboriginal prisoners rose 125%, from 609 to 1373, whilst the numbers of whites increased 84%, from 165 to 303. Aborigines make up one-quarter of the NT's population but three-quarters of those in prison; 90% of the juveniles in detention in the NT are Aboriginal.
Such results were openly predicted by everyone except those who drafted the laws, and even they can't have been unaware of what the laws would do.
Stone claims that the laws are not racist because they are not explicitly discriminatory. But both the WA and NT laws were deliberately directed at petty property crimes, such as break and enter, vandalism and receiving stolen property. These are crimes which are disproportionately committed by Aborigines, especially young Aboriginal men. The laws didn't need to include specific clauses in order to be racially discriminatory; their very focus ensured that they would further victimise the Aboriginal population.
While there is no proven correlation between mandatory sentences and reductions in crime, there is a proven correlation between harsher sentences and political parties' reliance on "law and order" campaigns to win elections. Mandatory sentencing was a centrepiece of Court's election campaign in 1996 and Stone's election campaign in 1997.
O'Gorman points out that such political use of calls for stiffer penalties is not restricted to the NT and WA, nor to the Coalition. "All politicians use law and order as a vote winner", she said. "Come election time, there's always a 'crime wave' which needs harsher sentences, more police powers and more prisons." She points to Bob Carr's NSW Labor government as a classic example.
Like all other industrialised countries, Australia's imprisonment rate increased massively during the 1980s and 1990s, a result of harsher punishments for offenders rather than greater incidents of crime. Between 1982-98, the number of prisoners increased from 9826 to 19,906, or 102%. The number of prisoners per 100,000 people of imprisonable age increased by 55% over the same period.
Some states have expanded their prison populations more quickly than others. According to a paper by the Queensland Criminal Justice Commission's principal research officer on February 25, if Queensland's imprisonment rate continues on trend for another two years, the state's prison population will have tripled within a decade.
Some states imprison at a far higher rate than others: the NT rate — 474.9 prisoners per 100,000 of imprisonable age — is 3.5 times the national average.
Coalition and Labor politicians are quick to portray themselves as simply responding to the rising public fear of crime, a claim O'Gorman rejects. "The fear of crime is more an effect than a cause of the politicians' campaigns", she said. "Politicians use young people in particular as pawns in a law-and-order auction and ride on the fear engendered by the generation gap and media coverage."
Maintaining their "tough on crime" image isn't the only reason why Burke, Court and Howard refuse to budge on mandatory sentencing, however. O'Gorman believes that they also fear that a backdown on this policy may lead to uncomfortable questions on law and order and policing in general. Mandatory sentencing is only one part of states' increasing reliance on authoritarianism and repression.
"Governments have shifted their emphasis and resources from welfare and services to policing. Inequality and homelessness are increasing, teachers and nurses are starved of funds but prison screws and police only need to click their fingers to get more money", she says. "There are some fundamental issues at stake here."
As long as the public outcry continues, the pressure on the law-and-order politicians can only increase. Their response to the Senate inquiry's report on March 9 will show just how low they're prepared to sink.