Penal populism and Australian criminal justice policy

Criminal Justice System

Australian Criminal Justice System

"When all is said and done, the current criminal justice system is about as fair and effective as we can reasonably expect"

Overview of the Criminal Justice System: Fair and Effective - Penal Populism

The Democracy at Work thesis proposes that politicians have been properly responsive to public concern about crime by putting into place the more robust responses to offending which people want. An alternative perspective is that politicians have been populist in advocating these tougher policies. "Penal populism"; a term equivalent to Bottoms's (1995) "populist punitiveness"; is defined here as a punishment policy developed primarily for its anticipated popularity. Penal policy is particularly susceptible to populism, because there is a great deal of public concern about crime, and low levels of public knowledge about sentencing practice, sentencing effectiveness, and sentencing equity. This combination of concern and lack of knowledge can present politicians with the temptation to promote policies which promote electoral advantage without doing much about crime. The more willful that such politicians are in their disregard of the evidence about effectiveness and equity, the more we are inclined to regard them as penal populists.

One of the defining characteristics of populism is the exclusion of elite or institutional input from crime policy development. Penal populism involves a willful disregard of evidence or knowledge, and this knowledge is accumulated and held, typically, by those who work within, or are closely involved with, the criminal justice system. Sometimes the process of discrediting elite input can be explicit. For example, when two Australian jurisdictions introduced mandatory sentencing, the public controversy became very heated. At one point, the attorney general; a political appointee; in one jurisdiction went so far as to accuse the courts of being corrupt, leading to a public showdown with the chief justice. In the end, the politicians won. Australian governments argued that mandatory sentencing was "effective" because it was popular (Schiraldi & Soler, 2009).

Strengths of the System

In Australia, despite sentencing policy being a matter of state responsibility, all levels of government have attempted to exploit the issue for political advantage. For example, prior to the 1998 federal election in Australia, the incumbent prime minister made crime and punishment an election issue by adopting a pro-punishment line. Howard adopted a typically critical position (suggesting he was speaking for the people), accusing judges and others of being "soft" on crime. In the lead up to the 2001 election, both parties "got tough" on illegal immigrants. By denying entry to a boatload of asylum seekers, the prime minister was able to "snatch victory from the jaws of impeding defeat" at the polls. Following what appeared to be a groundswell of opinion for the hard line stand Labour backed legislative reform to restrict access by refugees to Australia and its courts (Schiraldi & Soler, 2009).

At the state level, the position over the last decade has been one of successive "reform" or compromise influenced by populist forces working through both government and opposition. Every state and territory in Australia reformed its sentencing legislation at least once between 1988 and 1998 (Sallmann & Willis, 2003). These reforms typically were announced with great fanfare, often in the heat of an election campaign and always against a gathering storm of public indignation and excited media coverage. The consequence has been significant increases in the size of the prison population. The dawn of this new era of populism can probably be best located at the 1988 New South Wales (NSW) state election marked, as it was, by a punishment "bidding war" and a promise of tough new penalties. The Sentencing Act (1988) [in Hogg and Brown] introduced as part of this election campaign established Truth in Sentencing (abolition of remission), which effectively inflated the prison population by a considerable margin. The act also introduced higher maximum sentences including a "natural life" sentence (Roberts & Stalans, 1997).

Hogg and Brown (1998, pp. 38 -- 39) note that the NSW minister leading much of this reform matched his stated desire to "put value back in punishment" with a ready acceptance of deteriorating prison conditions and the plight of prisoners suffering the consequences of overcrowded, underserviced prisons. The same pattern was observed in Western Australia, which saw rapid rises in its prison population through the late 1990s. This increase in prison populations precipitated by populist legislation led to overcrowded and underserviced prisons; the result was a major prison riot in 1998. Although the report into the riot identified overcrowding and under servicing as causes, the minister for justice had already taken a public stance of blaming prisoners for the riot and even expressed the view that they were lucky that they had not been shot. Such a cavalier disregard of government responsibility for the care of prisoners seems to be now increasingly excused by simplistic portrayals of "us" against "them."

The split between different levels of government in Australia engendered by the politicization of punishment is also reflected in the split between different arms of government. The traditional "separation of powers" between the parliament, the executive, and the judiciary that is a hallmark of the Westminster system of government appeared to be breaking down at the close of the century in Australia (Toby, 1957). The 1990s saw increasing public criticism from populist politicians regarding the courts, tribunals, and individual judges.

In the 1990s, the lesson learned by all political parties was that "law and order" works as a political tool. In much the same way as seen in the United Kingdom, the Labour Party; traditionally adopting a more socially sensitive and humane approach; jettisoned any links to positions that could be seen or accused of being soft on crime. In both Western Australia and New South Wales, the British slogan "Tough on crime, tough on the causes of crime" was adopted with much enthusiasm. Labour did everything it could to prove that it would be even tougher on crime than its opponents.

Evidence Which Suggests That the Criminal Justice System Is Not As Fair:

Examination of Goals and Fairness

As with other issues, public concern with youth crime has crystallized into a desire for harsher juvenile justice. There have been calls for the creation of a single criminal justice system that would encompass adults and juveniles, with the result that the severity of punishments would not vary if the offender happened to be under 18 years of age. However, since the beginning of the nineteenth century, Western societies have recognized that juveniles should not be held fully accountable for their criminal actions and should be treated differently from adult offenders (Schiraldi & Soler, 2009).

For many years now, a vocal minority has advocated the imposition of "adult" sentences on juvenile offenders. In light of widespread public concern over rising rates of juvenile crime; particularly when it involves violence; this message has struck a chord with penal populists. The result is that over the last two decades of the "War on Crime" we have witnessed an erosion of the principle that juvenile offenders should be treated more leniently than adults (Sallmann & Willis, 2003). The "get tough" movement has tried to include these juvenile offenders within the ambit of the adult criminal justice system. An example of this "get tough" movement is legislation from California [Proposition 21].

The populist response to crime by juveniles has consisted of an attempt to dismantle the separate system of justice that has been created for juvenile offenders. Populist politicians have used the fact that juveniles receive mitigated punishments (compared to adults) to argue that juvenile sentences are too lenient, as though the adult disposition were the norm and the youth court sentence a lenient aberration. The imposition of milder punishments on juvenile offenders has also been cited as a cause of juvenile offending, the same way that leniency throughout the criminal justice system has been described, by politicians and members of the public, as a cause of crime (Roberts & Stalans, 1997).

Conclusion

The syllogism that links the severity of punishments to crime rates emerges more clearly at the level of juvenile justice, where it is often argued that tougher penalties will put a stop to rising levels of juvenile violence and prevent juveniles from turning into adult offenders. The source of the frustration may be the widespread perception that young people will not behave unless the punishment for wrongdoing is severe. But as Jackson Toby noted as far back as 1957, the main factors distinguishing delinquents from non-delinquents is whether a young person has a "stake in conformity" (Toby, 1957). Giving a young person a reason not to offend is, therefore, likely to be a much more effective strategy than threatening punishment.

The claim that "a crime is a crime" and should result in the same punishment for adults and juveniles has also developed popular appeal. Thus the current criminal justice system is about as fair and effective as we can reasonably expect.