The Minister's combative approach towards the sentencing of drug offenders exploits populist punitive sentiment, writes Paul O'Mahony
Minister for Justice Michael McDowell is a self-styled conviction politician who evidently wishes to be remembered for taking on and besting powerful vested interests in the criminal justice system.
However, over the last few years Mr McDowell has also been engaged in a far less justifiable battle with the judiciary over the mandatory 10-year minimum sentence for possession of drugs with a value of €13,000 or more, introduced by his predecessor in the Criminal Justice Act 1999.
For years Mr McDowell has sniped at and threatened the judiciary for its failure to apply the 10-year sentence.
Undoubtedly, the Minister is correct about the failure to apply the minimum sentence. Patrick McEvoy BL, in an investigation for the Department of Justice, looked at the 55 drug-trafficking cases tried between 1999 and 2001, and found that only three cases resulted in sentences of 10 years or more.
Under the original legislation the judge is permitted to reduce the sentence under certain "exceptional and specific" circumstances, i.e. if there is a timely admission of guilt or if the convicted person has materially assisted the Garda. This possibility is intended to provide the suspect with an incentive to co-operate, which would not exist if the 10-year sentence was automatic.
However, it is obvious that judges, in the search for proportionality, have continued to also take personal and situational circumstances into account.
The Criminal Justice Act 2006 was the Minister's first legislative response. This limited the discretion of the courts by requiring the judge to take into consideration the convicted person's previous convictions for drug-trafficking offences and by abolishing mitigation on the basis of "exceptional and specific" circumstances for a second drug-trafficking offence. The latter creates a true mandatory minimum sentence akin to the life sentence for murder.
The Criminal Justice Bill 2007 requires judges to state their "exceptional and specific" reasons for not applying the minimum in cases where their sentence has been appealed as too lenient.
Mr McDowell's combative approach towards judges exploits, in an entirely one-sided and inappropriate manner, populist punitive sentiment and the widespread and, admittedly, sometimes justified public dissatisfaction with actual sentences.
He knows the judiciary is constrained from entering the cut and thrust of public debate and properly defending itself. It is unable to bring attention to the many vital and sometimes complex and technical issues of justice and fairness which its work involves, and which the Minister has chosen to ignore.
Rather than antagonising the judges, and promoting a simplistic view of mandatory sentencing, it is the Minister's duty to lead public opinion by taking genuine account of the judges' concerns in a manner which fully recognises the demerits of mandatory sentences.
Second, the proposal on mandatory sentencing is just one of many dubious elements in an anti-crime package which is being rushed through the Dáil with undue haste. This package is an appalling example of the now familiar knee-jerk political response to serious crime.
It shows the Government's willingness to erode the due process rights of citizens to create the perception amongst the electorate that the Government is tough on crime.
It is ironic that the proposals for an extension of Garda powers and restrictions on the right to silence are being advanced when the Morris tribunal is demonstrating the Garda's regrettable capacity for abusing the powers it already has.
According to the Law Society, the current proposals threaten to "reverse principles which have over centuries stood the test of time . . . and are a great danger to the rights of citizens".
It is a sad reflection on Irish politics that the Opposition parties are not prepared to come to the defence of Irish civil liberties, but are eager to outbid the Government parties in terms of repressive proposals.
But third, Mr Dowell's sentencing reforms are regressive because the mandatory minimum sentence for drug trafficking is a very crude and ineffective instrument which does not do what it says on the tin.
The measure tends to be unjust because it introduces inconsistencies in sentencing and disproportionate punishments to no good effect.
Those caught with less than the amount of drugs that triggers the mandatory minimum can be, and often are, punished leniently, without serving a day in prison.
With respect to the 10-year minimum sentence, €13,000 worth of cannabis must be treated the same as €1 million worth of heroin.
Any provision that uses a strict cut-off point based on the supposed value of drugs is bound to provide questionable justice.
Most seriously, the current approach insists that no attention be paid to the relative culpability of the accused. So hapless "mules", who stand to make little profit, are not differentiated from gang profiteers.
In a principled system of law, proportionality and consistency are not incidental extras but core values.
We are lucky in Ireland to have judges who use their discretion to honestly seek justice and proportionality in sentencing.
They often get it wrong and often appear inconsistent, but the Minister for Justice should be assisting them in getting their house in order through information systems and other self-managed structures rather than chipping away at their discretion, which is a uniquely valuable asset in our democracy.
Paul O'Mahony is editor of Criminal Justice in Ireland (IPA)