Maximum sentences should be reduced to lowest possible level, says expert

Overcrowded prisons and a lack of coherency in maximum prison sentences are among the reasons the Government should review such sentences to reduce them to the lowest level possible, a leading expert on sentencing law has urged.

“I believe that the Government should undertake such a review, but I would not be even remotely optimistic that it will do so,” said Prof Tom O’Malley SC.

At “the very least”, the legislature should avoid increasing existing maximum sentences without having “very good, empirically based“ reasons for doing so, and should pay close attention to the maximum sentences they attach to newly created offences, he said.

Politicians should bear in mind that maximum sentences will shape sentencing guidelines, at present prepared by judges, to a considerable extent, he said. The presumptive minimum sentences for drug and firearms offences should be abolished as those have “no meaningful role” in a guidelines jurisdiction.

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Some maximum sentences have been increased “for no particularly good reason”, including the increase from 10 to 15 years of the maximum sentence for witness intimidation, he said. The only explanation for that increase, in 2009, was that gardaí recommended it.

Sentencing guidelines can generate consistency in sentencing, an important value in itself, but there are equally important values, particularly “moderation in punishment”, he said.

The sentencing guidelines and information committee (Sgic) of the Judicial Council, which is drafting guidelines, can go some distance to achieving such moderation but “cannot do so alone”. Its work should be supplemented by a legislative review of maximum sentences and the introduction of a “more effective and inclusive parole system”.

Released on parole

Urging a review of “deeply flawed” eligibility guidelines for parole, he said there was no clear rationale for requiring life-sentence prisoners to have served 12 years before being eligible for parole. The law should be changed to provide that everyone serving a sentence of three, even two, years should be eligible for parole and be eligible on serving, at most, one-half of their sentences, he said.

It is essential the probation service has adequate resources to supervise those released on parole. And money “would be far better spent on this than on building more prisons”.

Prof O’Malley called for an “honest discussion” about the relationship between sentencing severity and victim satisfaction.

There is a “common assumption” that, for some offences, the heavier the sentence, the greater the relief for the victim but it is “often unclear” what was wrong about one sentence and right about another. He agreed the courts’ obligation to do justice at sentencing is owed, firstly, to the public at large, including the victims, and, secondly, to the accused who has an individual constitutional right to expect, and receive, a sentence proportionate to the gravity of the crime as committed by them in their personal circumstances.

Prof O’Malley is one of the foremost authorities here on sentencing law. He was delivering the annual distinguished lecture at the School of Law, University of Galway, on Thursday.

In a lecture addressing the future of sentencing and regulation, Prof O’Malley said sentencing reform should aim at producing a system that is “moderate, proportionate and constructive, as well as consistent”.

Because many maximum sentences are high, that will probably result in high guideline terms, he noted. There should, ideally, be a general review of maximum sentences to ensure they are “logically coherent” and to reduce them to the lowest level possible.

“It would be all very well if maximum sentences were chosen according to a rational scheme in which each was carefully ranked, having regard to the inherent gravity of the offence to with it attached compared with the gravity of other offences. But that is not the reality.”

‘Tracker mortgages scandal’

The penalty imposed on an offender “should not vary to any significant degree depending on who the sentencing judge happens to be on the day”, he said. There will inevitably be some variation and any move to eliminate that by a system of fixed penalties would be “a cure that would be decidedly worse than the disease”.

Anybody charged with developing sentencing guidelines must be acutely aware of the impact of its recommendations on the prison population and the need to avoid imprisonment where possible, he stressed.

He noted that State punishment extends beyond criminal sentencing and can include non-conviction-based confiscation of criminal assets and financial penalties imposed by regulatory bodies. The Central Bank imposed fines of more than €400 million after concluding 152 enforcement actions in 2022 but such sanctioning systems remain “largely unexplored” here.

The regulatory penalties being imposed here may be “too high, too low or just right”, he said. While nobody would deny that the banks “deserved to be punished heavily for the tracker mortgages scandal”, this was an area that seemed “largely unresearched”.

The overarching principle of proportionality should apply to regulatory penalties just as they apply to judicial sentencing, he said.