The punitive obsession

One of the worst aspects of the punitive obsession is the unthinking willingness to impose minimum sentences, in many ways a disguised push for the even more extreme “mandatory sentencing”. Both seriously damage the discretionary role of the courts, an indispensable component of genuine fairness.

As NSW Chief Justice Jim Spigelman stated in 1999, “Unless judges are able to mould the sentence to the circumstances of the individual case then, irrespective of how much legislative forethought has gone into the determination of a particular regime, there will always be the prospect of injustice”.

Another unacceptable aspect of the law and order bandwagon is the effect on minorities. The incarceration rate for Indigenous Australians is 1 in 50 in NSW, largely as a result of tougher sentencing and tougher bail law requirements for supervision and accommodation. Professor Cunneen has pointed out: “The changes in bail laws particularly affect marginalised groups, because they are less likely to be employed or at school.” In short, prisons are becoming large-scale warehouses, many inmates being on remand, not yet tried, let alone convicted.

The whole “law and order” agenda is driven by a media willing to label and stigmatise particular groups, and politicians seeking cheap publicity and electoral support. Both support morally bankrupt and largely inefficient policies. The recent reactions to the racially-motivated violence in Sydney’s beachside suburbs in December 2005 fully illustrate the utterly irrational essence of the punitive obsession.

In mid-January the Leader of the NSW Opposition, Peter Debenham, attacking the Government for being “soft” on one group of participants, stated that the authorities should “lock up 200 Middle Eastern thugs”. When the Lebanese community justifiably deplored this, he demonstrated his fairness by demanding the arrest of 1,000 young gang members (including not just those of Middle Eastern background) involved in “crime, organised crime and drugs”.

Implementation of such policies would require at least two new prisons (or simply worsen the present overcrowding), would victimise and criminalise youth from stereotyped ethnic minorities, create a future larger group of real criminals, create serious injustices and resentment, and do little to solve the problems at the core of the conflict. Of course, Premier Morris Iemma responded by calling Debenham a “liar”, and assuring the public that his Government was definitely not “soft on ethnic crime”.

The essential problem with the punitive obsession is that is not only ineffectual, expensive and counter-productive, but it is lazy rhetoric posing as policy, preventing the serious search for constructive alternatives. It is morally bankrupt and inherently unjust. Moreover, it is in itself a form of violence, which fosters an even broader culture of violence and tolerance of injustice.