The criminal justice system, at least in theory, is meant to be
equitable, display stability and reflect finality. This concept of
finality is under threat from recent law-and-order moves to exact greater
punishments, namely proposals to scrap the double jeopardy rule and to
introduce sex-offender notification laws. At both the front and back ends
of justice processes, those who subscribe to the "more law equals
more order" view are attempting to extend the reach of the criminal
Calls for American-style notification laws are usually loudest
following high-profile child sexual abuse cases or when 'notorious' sex
offenders are released from custody. In 1999 in New South Wales, convicted
child killer John Lewthwaite was subject to continual harassment following
his release from gaol after more than 20 years imprisonment. Baying crowds
gathered outside his residence and the harassment extended to physical
actions like throwing objects and putting a garden hose through his front
door. In Queensland, released child abductor Dennis Ferguson was hounded
last month by the press on his entry back into the community. Ferguson has
been "under siege" from local citizenry and the media again this
month forcing him to call for police protection on a number of occasions.
This level of vigilantism abounds even without formalised notification
laws. One can only speculate on the level of harassment if notification
became a requirement under the law.
Such "Megan's Laws" now operate in 45 jurisdictions in the
USA. They are exclusively aimed at released sex offenders who are required
to notify police and other justice agencies of their whereabouts at all
times. The notification period ranges widely across jurisdictions, with
the average notification period extending for around 10 years but can
extend to a lifetime commitment. They also involve publicly notifying
those with special interests such as schools, recreational organisations
and even entire communities that a released sex offender is residing in
the local area.
In at least one US state these laws have been described as "cruel
and unusual punishment". They have led to physical violence,
offenders failing to seek treatment, and greater levels of unwarranted
fear in the community.
Like many law-and-order moves, we in the Antipodes tend to borrow
wholesale from overseas models. The question is: do these notification
laws work? One of the few empirical studies available shows notification
to be virtually useless in protecting potential sexual-abuse victims from
offenders. In this study it was retrospectively calculated that of 136
serious sex offenders in Massachusetts, at best, in only four cases was
there a strong prospect that the eventual victim would have been
appropriately warned and even then there was no guarantee that action to
thwart future abuse could have been taken.
The second move to extend the reach of the law is the suggested
scrapping of the double jeopardy rule. This rule has offered legal
protection that one cannot be tried for the same crime twice and has been
fundamental to western legal systems. Its removal is currently under
review in the UK and similar proposals are being mooted here.
In Queensland the case of Raymond Carroll has spurred the calls to
abandon the double jeopardy rule. Carroll was convicted of the slaying of
a toddler, Deirdre Kennedy, in the 1970s but this decision was overturned
on appeal. The Crown then tried him for perjury committed during the
original trial and again a conviction was secured but overturned on
This case motivated some to argue that because new technologies like
DNA analysis were not available during the original law enforcement
investigation and at the trial, then the double jeopardy rule should be
removed. This would allow police investigators to have a second (or even
third) attempt to gather sufficient evidence to convict.
There are many problems with this position, not the least being that it
places far greater power in the hands of the Crown with whom the power and
resources already reside. In addition, it would be difficult to mount an
adequate defence if witnesses and clear knowledge of the circumstances of
the crime are no longer fresh. In effect it would permit overzealous
concern for victims' needs for 'justice' to override the rights of
defendants. A move in this direction would give DNA evidence the status of
almost infallible 'proof' even though there are a great number of
difficulties with the testing, storage and interpretation of DNA material.
We are now somewhat immune to the perennial calls for increased
punishments that often accompany elections or high-profile crimes in this
country. This expected law-and-order push is generally characterised by
calls for harsher penalties for select crime categories, to get tough on
juvenile crime, or to introduce strict regulations on remissions and other
'soft' options. At times, it seems as if the 'more law equals more order'
approach is the only one adopted by politicians and policy-makers in their
myopic vision of justice.
Notification laws and proposals to scrap the double jeopardy rule
represent the most extreme form of net-widening or extension of the gaze
of the criminal justice system. They herald greater intrusion into the
lives of all caught up in the law. So at election time the law-and-order
push should no longer be measured only in terms of severity of penalties,
but in terms of the reach of justice processes.
The adage that if one does the crime, then one does the time, should
finish there. Justice agencies should not have the opportunity to keep
coming back to try suspects afresh whenever they wish. They should also
not have the powers to continue to monitor those who have been released
from custody for decades after their sentences have expired. The
abandonment of the principle of finality should be resisted.
Robyn Lincoln is Assistant Professor of Criminology in the School of Humanities and Social Sciences at Bond University where she has taught and researched since 1994. Her particular areas of interest are Indigenous criminal justice and forensic issues in criminology.