Sunday, November 20, 2005

Let the Punishment Fit the Crime

The imminent execution of Nguyen Tuong Van strengthens the case against capital punishment. The Federal Government should be commended for the measured yet pointed representations it has made to the Singapore Government (in diplomatic and public forums) to save Melbourne man Nguyen Tuong Van from execution.
His defence team also has done an excellent job in galvanising a considerable degree of public support for Van, thereby adding weight to the Government's plea. Despite this, history indicates that the plea will fail and Van will be executed.
This barbaric outcome hopefully will lead to enhanced efforts by the Australian Government to increase pressure on all countries to abolish capital punishment.
The practice has no redeeming features. Wide-ranging empirical research shows that the death penalty does not reduce the crime rate. It is misguided and cruel.
If Australia is to act as a moral compass it should make high-level diplomatic representations urging all nations to abolish laws and practices that involve egregious violations of fundamental human interests.
As far as capital punishment is concerned, it should not wait until the next Australian is placed on death row. All lives count equally – irrespective of where a person happens to be born.
The Government should not let considerations of moral relativity and national sovereignty mute its moral voice.
Moral relativity is illusory. All people are entitled to have their fundamental interests (life, liberty and physical integrity) at least minimally protected.
That's why we are witnessing a slow, but sure, convergence in fundamental moral principles across the globe.
The notion of national sovereignty has, fortunately, been beaten down by the twin forces of globalisation and the human rights movement so it no longer can be invoked as an impregnable shield to justify draconian laws – a lesson the likes of Slobodan Milosevic and Saddam Hussein have learnt the hard way.
The other matter governments (states, federal and territory) should take from the sad plight of Van is the pointless devastation that can be caused to people as a result of harsh and misguided sentencing laws. Unnecessarily locking up convicted offenders in jail is obviously not as barbaric as executing them, yet jail also can have a devastating impact on people's lives. It should be used only when the benefit to the community outweighs the hardship to the offender.
This principle is flouted by the nationwide approach to increasingly harsher sentences, which has resulted in growing prison numbers.
This needs to change. Sure it feels good to "hammer" criminals, but in the process we punish ourselves.
It costs more than $1000 a week to house each prisoner. This is money taken away from our hospitals and education system. While it "feels" good to punish wrongdoers severely, satisfying our emotions does not provide a justification for deliberately inflicting hardships on (albeit flawed) members of our community.
That's why we don't condone road rage, jealous lovers killing their partners or frustrated parents belting their kids. The level of civilisation of a society roughly correlates with the extent to which it suppresses its feelings in relation to its law-making process.
On this measure we fail dismally when it comes to punishing criminals. Sentencing is a rationality challenged zone. Sentencing outcomes are unpredictable and inconsistent because there are about 300 different (mainly misguided) aggravating or mitigating variables that courts can pluck out at a whim to justify their intuitive predilections.
The first step towards smart sentencing is to match the seriousness of the crime with the harshness of the penalty. In terms of setting the amount of punishment, the main determinant should be the principle of proportionality, which prescribes that the punishment should fit the crime. This requires a formula for matching the pain of criminal sanctions with the harm caused by criminal offending.
The only way forward here is to adopt the ultimate human interest as a universal yardstick – happiness and pain. The amount of unhappiness caused by the punishment should be commensurate with the seriousness of the offence.
It's now possible to make relatively good approximations about the extent to which a person's interests are adversely affected as a result of being either a victim of crime or subjected to a criminal sanction. We then need to match these considerations.
The principle of proportionality is gravely distorted by the pursuit of sentencing objectives. The main ones are rehabilitation, community protection, specific deterrence (deterring the particular crook) and general deterrence (deterring potential offenders).
Empirical evidence suggests that all these should be discarded, except the last one. None of the others can be achieved through punishing people.
General deterrence works, but only in a limited sense. The greatest deterrent to wrongdoing is not the size of the penalty but the perceived risk of detection.
Community protection should be pursued only in relation to offenders whose crimes show an underlying personality disorder which makes them likely to reoffend. Pedophiles and those who commit very violent offences fit this bill.
So where does that leave us in terms of how to punish crooks? The main rationales underlying the move towards harsher penalties are community protection and the view that higher penalties reduce crime.
Given that these objectives are in most cases flawed, we should be watering down the severity of punishment. At the same time, we should be striving for a lower crime rate.
This may seem overly ambitious, but it is not unattainable. To see this, look at Finland. The prison rate in Finland is about half that in Australia and when offenders are sent to prison they do not stay very long – prison sentences exceeding five years are rare. Moreover, the crime rate in Finland is about 35 per cent lower than that in Australia.
The Finns have a big prefrontal cortex. Let's increase the size of ours.
It may reduce hospital waiting lists and result in better education for our children. We would then also serve as an exemplar to other countries regarding how to treat convicted criminals.

till next time, Michelle.

updated Nanowrimo word count 35,096


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