Before the public rush to attack that system, they should at least make an effort to understand it, writes Tom O'Malley.
The tragic killing of a young woman in Dublin last weekend has understandably caused concern about the efficacy of our crime-control strategies.
The sentencing system is always an easy target for blame, but before politicians and members of the public rush to attack that system, they should at least make an effort to understand it.
International research has consistently shown that increased punishment has only a marginal impact on crime levels. A much more significant factor is the perceived risk of detection. This is especially true of crimes which are premeditated rather than impulsive. If potential offenders foresee a low probability of detection, they are seldom deterred by the prospect of a heavy sentence. An effective crime-control strategy should include a high detection rate as a well as a consistent practice of imposing severe sentences for serious crimes.
Few countries have been willing to make the investment to achieve high detection rates. Ireland is no exception in this regard.
Politicians usually prefer to concentrate on new sentencing measures, including mandatory sentences, which are always more politically popular in the short term. Governments can claim instant success once they have enacted the new arrangements.
Strategies to increase detection rates take longer to implement, and they call for more patient and long-term police work. While far more effective than mandatory sentencing, intensive policing is less visible, produces fewer short-
term results and is less popular.
Mandatory sentences also give rise to more principled difficulties. The most fundamental principle of sentencing in most western countries, including Ireland, is that a sanction must always be pro-
portionate to the gravity of the offence and the personal circum-
stances of the offender.
This principle was set out by Mr Justice Flood in 1994 in the Lavinia Kerwick case and has since been adopted and refined by other courts including the Supreme Court.
As the judge pointed out, the very concept of constitutional justice demands that a sentence be tailored to reflect the guilt of each offender. It would run completely counter to this fundamental value to oblige courts to impose the same sentence for a given offence irrespective of the particular circumstances of the offender.
It has been said that legislatures understand offences while courts understand offenders, and there is a great deal of truth in that.
When specifying the sentence for an offence, it is quite simply impossible for any group of legislators to foresee the variety of circumstances in which that offence will be committed, much less the personal circumstances of those committing it. That is why statutes almost invariably specify maximum rather than mandatory sentences.
Members of the public are often puzzled and sometimes angered by what they perceive as lenient sentences handed down by the courts. Yet, if any member of the public had to decide on the sentence for any one of the offences which occasionally give rise to controversy, while in possession of all the information which was before the judge, the sentence he or she would select would probably differ very little, if at all, from that imposed by the judge.
This brings us to one of the major problems in the area, which is lack of reliable public information about sentencing practices. A few months ago Dr Julian Roberts of Oxford University, a world authority in the area of public opinion and sen-
tencing, gave a fascinating seminar in Galway in which he showed how throughout the English-speaking world members of the public consistently believe that judicial sentences are too lenient or too inconsistent.
By the same token, they are usually unaware of actual sen-
tencing practices and, when properly informed of what the courts are actually doing, they tend to approve.
In fact, it often transpires that the sentences imposed by the courts are actually higher than members of the public would have imposed themselves for the same offences. A recent book of his sets out the results of international research in this area in great detail.
If the sentencing regime for firearms offences is to be changed, we will hopefully not witness a repetition of what occurred in 1999 when a so-called mandatory 10-year sentence for drugs offences was introduced without any apparent effort to discover the levels of sentence which the courts were actually imposing.
My own researches strongly suggest that the courts were, then as now, imposing high sentences for serious drug offences, but in the absence of hard information it was easy to create the impression that serious drug offenders were walking away with the proverbial slap on the wrist.
Initiatives are now being taken to investigate current sentencing levels for a wide variety of offences. It is only when that information has been collected and analysed that the Government will be in a position accurately to assess the need for change.
Tom O'Malley is a barrister and senior lecturer in law at NUI Galway