The Jurisprudential Wasteland That Is Sentencing
'Punishments must better fit the crime for there to be just deserts'
By Professor Mirko Bagaric The Australian 15/1/ 2018
(director of the 'Evidence-Based Sentencing and Criminal Justice Project', Swinburne University)

The jurisprudential wasteland that is sentencing needs to be reformed to eliminate the subjective values of judges.

The African gang violence in Victoria has resulted in a major public stoush regarding soft sentencing and accusations by Peter Dutton, the Minister for Home Affairs, that too many civil libertarian judges have been appointed. Lost in all the noise and typically reflexive analysis is that the central problem with criminal justice is not the profile of the judges who impose sanctions but the lawless manner in which sentencing decisions are made.

A breathtaking paradox of sentencing law is that while it is the area of law where the state acts in its most coercive manner, it is also the least transparent and principled legal domain. Sentencing judges have an unprecedented level of choice and can impose the sanction they "feel" is right, as opposed to making the decision that is empirically and normatively the most sound.

The courts have labelled the process by which sentencing decisions are made the "instinctive synthesis". This is a self-serving phrase that simply means intuition: it involves utterly zero synthesis.

Existing legal orthodoxy maintains that there is no single correct sentence in any case and a range of sentences is appropriate. Recently the High Court has stated that even established sentencing patterns can be ignored where this is necessary to impose a "just sentence". There is, unfortunately (but predictably), no meaningful guidance on what constitutes a just sentence.

The instinctive synthesis means that judges are free to place as much weight as they feel appropriate on any relevant sentencing consideration, as opposed to grounding their decisions in a step-wise and logical methodology. Thus, in any particular case a judge can discount a sentence by, say, 5 per cent or 40 per cent because he or she takes the view that the offender is remorseful for their crime.

The irony is that individuals in the community are entitled to a full explanation if the government wants to interfere with their fishing licence or welfare benefit but offenders, victims and the community are not given coherent reasons for the manner in which courts deal with the most heinous acts committed in our society.

The instinctive synthesis facilitates the making of decisions through which judges can give full effect to their personal sentiments and dispositions. It makes sentencing law a jurisprudential wasteland and results in the imposition of many criminal sanctions that are utterly flawed. It is hardly surprising then that the subconscious bias of judges shapes many sentencing decisions. Research shows, for example, that indigenous offenders are more likely to be imprisoned than other offenders. International research also confirms that the decisions of judges are influenced by their political and religious values.

But that is only the tip of the iceberg so far as the failings of the sentencing system are concerned. The present system is an intellectual basket-case because it lacks an overarching rationale and is devoid of transparency. Sentencing outcomes in Australia are unpredictable and often flawed because there are about 300 different (mainly misguided) aggravating or mitigating variables that judges can pluck out at a whim to justify their intuitive predilections.

The way to inject fairness and effectiveness into sentencing is to adopt a clear rationale for the system and to develop it on the basis of research findings regarding what can actually be achieved through a state-run system of punishment.

Moreover, decision-making frameworks need to be sufficiently rigorous and prescriptive so that outcomes are not affected by the subjective values of judges.

The most important aim of the sentencing should be community protection. The key determinant in setting penalty type should be "just deserts".

This can only be achieved by adopting the principle of proportionality, which prescribes that the pain inflicted by the punishment should equal the harm caused by the offence.

This formula should not be distorted by misguided considerations such as remorse. Neither should it be diluted by the pursuit of other objectives that serve to increase penalties but have been shown to be groundless. For example, offenders who commit the same offence recidivate at the same rate irrespective of whether they are dealt with by way of a fine or imprisonment, and hence the objective of specific deterrence should be abolished.

Just deserts is best secured by setting standard penalties for all offences by way of a predetermined grid with terms of imprisonment for crimes that cause the most distress to victims.

This would result in sentences that would have the net effect of making the system fairer and less punitive. Serious sex and violent crimes devastate the lives of victims. Perpetrators of these crimes must go to jail. Minor traffic offenders and welfare cheats don't shatter the lives of others. They won't go to jail.

Properly calibrated sentencing grids would result in a reduction in prison numbers but guarantee that the people who deserved to be in jail would not avoid prison by milking a judicial sympathy gland. The costs saved by reducing prison numbers ($102,000 a year for each prisoner) should be used to put more police on the streets, thereby reducing the overall crime rate.