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Column: Criminal justice policy should be shaped by our heads, not our hearts

While outrage is understandably high when particularly heinous crimes are committed, we are doing victims no service by letting emotions rule out rational debate on how to reform the justice system, writes Alan Greene.

Alan Greene

THE IRISH CRIMINAL justice system has had a bad couple of weeks. The release (then subsequent imprisonment) of Patrick O’Brien for the rape of his daughter caused a public and media outcry.

Outrage then reached unprecedented levels with the murder of Garda Adrian Donohoe while on active duty in Co Louth last Friday.

The debate on criminal justice policy that this clamour has created, must, however remain rational and informed; notwithstanding the fact that emotions are running high. The Irish criminal justice system has been shaped and influenced for the worse by policy changes taken in the aftermath of these ‘moral panics’. The murder of Veronica Guerin and Detective Garda Jerry McCabe within two weeks of each other in 1996 led to unprecedented levels of public anger and anxiety at crime in Ireland. The following ‘war on crime’ resulted in a huge spike in the Irish prison population at a time when the overall level of recorded crime had decreased.

Ireland is not alone in this respect. Unfortunately it’s the case that criminal justice policy in many states is not guided by research and level-headed analysis of what ought to be done, but instead is built upon knee-jerk reactions to populist outrage. In the UK, the murder of two-year-old Jamie Bolger by Robert Thompson and Jon Venables, who were themselves children, lead to a similar spike in the prison population, with John Major’s Tory government ‘condemning a little more and understanding a little less’.

In such instances it is all too easy for politicians to pander to these emotions and talk ‘tough on crime’ for the sake of courting votes. We have seen in Ireland what populist measures have done to the economy. A similar populist mindset, fuelled by tabloid criminology, can have an equally harmful impact on the Irish criminal justice system. One need only look at California in the United States where politicians would rather close down schools than prisons in tough economic conditions. When approaching what ought to be done to reform the criminal justice system in Ireland, we must look first and foremost at what ‘works’.

Sentencing policy

There is little evidence to suggest that increasing the length of sentences operates as an effective deterrent. Harsher punishments may temper our outrage and anger at a crime, but the fact of the matter is that the minimal deterrent factor they have will not make us any safer.

Similarly, mandatory sentences or mandatory minimum sentences are rather crude, blunt instruments that fail to recognise effectively the principle of proportionality: that the weight of the sentence must be proportionate to the gravity of the offence. A mandatory sentence, by definition, removes any flexibility for a judge when sentencing, and consequently, removes any incentive for the accused to plead guilty.

Instead, the case goes to full trial, with the prosecution adducting evidence to prove its case. In rape cases, this invariably involves the victim testifying in front of the accused, forced to recount the traumatic events of the offence. This can be a very stressful, harrowing and scary experience for rape victims to have to endure.

From the perspective of deterrence, harsher mandatory sentences sound good in theory, particularly to an angry and anxious public. However, research has shown that these have little effect on the overall crime rate. At most, imprisonment reduces the crime rate, not by deterring individuals but by incapacitating those likely to commit offences. However this effect is minimal, with a study conducted by Roger Tarling in 1993 showing that the UK prison population would have to increase by 25 per cent in order to decrease the crime rate by 1 per cent.

With the cost of imprisoning an individual in Ireland amounting €65,359 a year (in 2011), this would represent a poor return of money, particularly given the dire state of the public finances.

Prison conditions

The notion that tougher prison conditions will reduce re-offending is similarly misguided, with no link proven between the two. Indeed a US study has indicated the opposite, with offenders imprisoned in maximum security prisons more likely to re-offend than those housed in minimum security institutions. All of that can be said before even taking into account the powerful humanitarian arguments against introducing degrading prison conditions. That slopping out – a process condemned by the UN Committee against Torture – continued in Mountjoy Prison until last year is a damning blotch on the reputation of Ireland, particularly given our recent election to the UN Human Rights Council.

No zero-sum game

There does not exist a zero-sum game between offenders and victims. Advocating rehabilitation projects for offenders, better prison conditions, or cautioning against the introduction of longer sentences does not mean one is against the victim, or harming victims.

Victims do of course need to be recognised and vindicated by the criminal justice system. However, the current system merely relegates them to the role of witnesses in trials and the state instead inflicts punishment on the offender on their behalf. This can lead to the victim feeling passive and helpless. Where it is possible, restorative justice programmes that seek to heal and address the harms caused specifically to a victim ought to be utilised.

Conclusion

Suggesting that there ought to be a rational debate on criminal justice policy; that perhaps longer sentences, mandatory sentences, or harsher prison conditions are not the way to reform the criminal justice system leads invariably to accusations of being ‘soft on crime’ or ‘a bleeding heart liberal’. However, as these policies do nothing to reduce re-offending, rejecting these proposals is not being soft on crime, but being smart on crime. When approaching criminal justice reform we must think with our heads, not our hearts.

Alan Greene is a PhD Candidate and IRC Government of Ireland Postgraduate Scholar at UCD School of Law. He holds a masters degree in Criminology and Criminal Justice, and is currently a Visiting Researcher at Durham Law School. His research is available to view here.

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