MELBOURNE, 11 AUGUST 1999
CRIMINAL JUSTICE MYTHS –
POSSIBLE NEW DIRECTIONS
Nicholas Cowdery QC
Director of Public Prosecutions, NSW
Thank you for the invitation to address this conference. I see from the conference publicity that I have been expected to bring a wealth of legal experience and common sense to the major issues in criminal justice and to talk on issues causing growth in crime and possible new directions (not specified). I may stray a little from all of that but I shall do my best to ensure that the organisers are not had up for making false representations.
I have not addressed members of the security industry and its clients before. I shall assume that you are engaged in works that are designed to secure businesses, homes and other premises, processes, persons and things against risks of various forms of unpleasantness.
Crime is one such unpleasantness, as anyone who has suffered from it or who works with it well knows. Therefore many people and agencies are constantly engaged in attempts to frustrate it by all reasonable and acceptable means. Their efforts are directed mainly towards prevention and detection. When detection leads to successful prosecution, punishment follows. That in turn is intended, by reason of its deterrent effect, to enhance prevention - and so the circle is closed.
In the area of criminal justice, as in many other fields, prevention is much better than cure - for all concerned. We are all engaged in crime prevention. The question I want to consider is whether or not we can prevent crime more effectively - perhaps by altering our present focus on particular aspects of the criminal justice system (the perennial myths we hear about) to some other (and I would argue, more sensible) approaches.
Nobody is immune from crime. Since humankind first ordered its society by setting rules there have been rule breakers. While a crime free society is a worthy goal to set, history and common experience teach us that it is simply unattainable. The best we can hope to do is to achieve an acceptable level of control of crime by a number of means. While crime continues, all members of society are at some risk of being affected by it. That is an unavoidable fact and we must all learn to live with it and do our best to reduce that risk.
Crime is committed when someone with the motive and opportunity is not under sufficient control (internal or external) to prevent it happening. Then the undertakers - the police, prosecutors, courts and prisons - move in to deal with the consequences. Motive and opportunity arise often enough. The undertakers have little effect on them. So it is on the control, or prevention, that we should concentrate.
Crime has fashions. Those fashions are determined by social circumstances. However, crimes of personal violence and greed in one form or another happen all the time - essential human nature does not change. In recent memory the law enforcement agencies have had to focus their attention on property theft in the 1950s, drugs (making a reappearance) in the 1960s, fraud in the 1970s and 1980s and child sexual abuse in the 1990s.
To talk about an increase in crime, without disaggregating that concept, is misleading. The levels of commission of different categories of crime at different times will vary. Usually the incidence of one or more types of crime will be rising slightly while the incidence of others will be falling. It all depends on fashion, on categorisation, on the source of the statistics (of which I have a deep distrust when produced by some parties) and on the use to which the publisher is attempting to put them.
Elections cause crime waves. They must - just listen to the candidates. For months before elections it becomes unsafe to leave your homes - or even to stay in them. We could go a long way towards reducing crime by not having elections. Alternatively, we could achieve the same result by having lots of elections - because once the result is known the crime wave miraculously disappears.
Between elections, of course, crime rates fluctuate. If there is more crime, the policy makers (including the politicians) blame factors that they cannot control. They blame the breakdown of the family, of the educational institutions, demographic changes (for example, the babyboomers - and now their offspring), a general decline of morality, and so on. But if crime rates fall, they immediately credit the policies they have been pursuing - more police, longer sentences, zero tolerance policing.
There is a myth embedded in all this. At election time, particularly, the policy makers make the mistake of thinking that the policies they link with falls in crime rates actually cause those falls.
The academics adopt a different approach. They acknowledge that policy can make a difference in some cases, but that difference depends upon existing crime levels and trends (which happen quite independently of policy). Policies can help to push a trend along, but only by interacting with other factors "on the ground". So it is sterile and futile to just trot out the same old policy mantras at every election. Myths.
POLICE AND POLICING
One of those trotted out is that crime is reduced by employing more police - more police equals less crime. No: we would only see that effect if we had a police officer on every street corner and in every home, office, shop, pub and sporting place. Numbers of police do not correlate with the incidence of crime, as many studies have shown. The use to which police are put does correlate. It is the fear of detection that has the greatest long term policing effect on offending. Intelligence led, targeted policing can reduce crime. I am sure the mere existence of a security measure will not necessarily provide security, but its intelligent design and use can assist. The keys are good training and equipping and expert advice and implementation. An appropriate range of police powers is also important, but a balance must be struck.
I have made reference to zero tolerance policing. It appeals most strongly to people who seem to be capable of zero tolerance in many things. But what does it mean?
Its origin was in the "broken windows" metaphor. In 1982 a magazine article in the USA argued that, just as a broken window left unmended was a sign that nobody cared and led to further property damage, so any disorder in the community sent a signal that produced fear in the populace, serious crime and the "downward spiral of urban decay". The message taken up from the article was that minor offences can have serious consequences for the community, so minor offences should be hit hard - with zero tolerance. A man named William Bratton became Chief of the Transit Police Department of New York City in 1990. He set about cleaning up the subway - restoring and maintaining order in a system that had fallen into decay and had become dangerous and unpleasant. Mr Bratton had a lot of quick success in the subway and was appointed New York's Police Commissioner in 1994. He had a lot of success there, too, but it would be quite wrong to say that he achieved it by fixing the broken windows. That would be to sell him short by a very large amount. Cleaning up a subway is one thing - improving law and order in a huge and complex city is quite another. His was as much a multi-pronged attack on the police force itself, as it was an attack on disorder in the streets. Indeed, he needed no more police or police powers to do a better job - he just made the system work more effectively.
It appears that "zero tolerance policing" now means different things to different people. (I have heard the term used on radio to describe a strategy that was in fact a prime example of intelligence led, targeted policing, which is quite the opposite). Zero tolerance policing means, for most legal professionals, something akin to total law enforcement - every minor infraction is punished to the full extent of the law. Mayor Giuliani of New York adopted Commissioner Bratton's program and called it a "quality of life" campaign. Police were sent out to aggressively pursue even the most minor offences (like jaywalking, drinking in public, loitering, riding bicycles on footpaths, etc). The idea seems to be based also in part on a theory of selective incapacitation: if you take out the minor offenders they will not progress to major offences. A similar theory underlies mandatory sentencing of the "three strikes" variety. It is a seriously flawed theory.
In practice - and this is supported by studies from places where it has been tried, even New York - scarce police resources are diverted from the investigation of serious crime (which carries on largely unimpeded) into the punishment without discretion of minor street and other offences. Police become bound to the work involved in processing huge numbers of petty offences. Citizens grow to despise police and regard themselves as living in a repressive society. In some places where this has been tried - including New York - there have been mass demonstrations against it. There is no statistical support for its effectiveness outside of a closed environment like a subway. In most places it is regarded as an interesting experiment that may have made some contribution to an improvement in general order, but at a cost. The Australian politicians who are advocates of zero tolerance policing are, as in many things, some distance behind the game.
A Senior Lecturer at the NSW Police Academy - someone involved in the training of police in this country - recently wrote about zero tolerance policing:
"We should carefully consider whether we really want a system that
causes the law to over-reach and extend its net to enmesh many more people for non-serious matters ...
The restriction of police discretion through the application of strict limitations, or even its total removal, can only lead to total law enforcement, a situation that is as unworkable as it is undesirable."
At the other end of the criminal justice process a lot of attention is given to punishment. The theory is that the imposition of a penalty, be it imprisonment or some lesser form, will serve to deter the individual from offending again, deter others from offending in that way, exact some public retribution (or revenge) for the offending and assist in reforming the offender. There is also an element of protection for society by the removal of those who cannot safely live among us. But the criminal justice process is not an effective crime control mechanism.
Deterrence may work in some individual cases. If it does, then it must be closely linked to reform. Does it work in general (that is, are other people put off committing those crimes by seeing the punishment imposed on the individual who is caught)? I have my suspicions about that. Do aspiring criminals read the sentencing statistics? Do they make a cost/benefit analysis before committing a crime? (Well, in some circumstances they might, and I'll mention that a little later.) Seeking to prevent crime by criminal penalties, in my view, is about as useful as dealing with the road toll by addressing the crash repair industry or improving hospitals.
Revenge is in reality the principal generally accepted motive for punishment (whatever judges may recite when they impose penalties). And so we hear strident calls from politicians and others for more punishment and ever heavier penalties to satisfy that thirst for revenge.
We hear calls for mandatory sentences - sentences prescribed by Parliament that must be imposed in particular circumstances, regardless of the judge's views, the personal features of the offender or the overall justice of the case. Mandatory sentences fill gaols. (NSW is about to build three more. Now there is a boost for the security industry!) Mandatory sentences place too much power in the hands of prosecutors enabling - indeed, to get through the work, requiring - them to charge bargain or plea bargain to other offences where there are not mandatory penalties. They are inimical to the independence of the judiciary. They operate in an unfairly discriminatory fashion.
Mandatory sentences create injustice in most cases. They exist already in this form in Western Australia and the Northern Territory and they are an abhorrence. They represent a retreat to the desperate regimes that existed at the time of white settlement in this country.
Grid (or guideline) sentences are just as objectionable. In those cases judges must impose a sentence calculated on the basis of the description of the offence and (usually) the offender's past record. Little account is taken of the circumstances of the offence or the offender's present personal circumstances. Justice takes a back seat and mercy is left behind completely.
We hear calls for more and longer sentences - that judges are out of touch with community expectations. That raises a number of issues. What are the expectations, whose are they and how do we determine that? What place do the expectations of any members or sections of the community have in the process of sentencing? What is hoped to be achieved by taking such expectations into account, in any event? Are not judges and magistrates professionals, qualified and employed to sentence on behalf of the community?
Research by the NSW Bureau of Crime Statistics and Research (reported in Bulletin Number 40 in November last year) demonstrates that, in any event, conviction rates have remained quite high over the years. For the years 1990-1997 in six categories of serious crime the percentage of convicted persons imprisoned remained stable or increased and the average length of prison sentence imposed for each of the categories generally remained stable. The Bureau said:
"This bulletin has shown that, despite the largely media-driven perception of
court leniency, the NSW court system is not generally acquitting people and
penalties have, if anything, become heavier since 1990. The courts also deal
more harshly with offenders who commit more serious crimes and who have
more serious criminal records."
Occasionally we hear calls for the death penalty to be reinstated in Australia. It can be quick and cheap. It certainly prevents that person from reoffending. If the person who is killed needed deterring, it is the perfect individual deterrent: but what if, in our imperfect criminal justice system, the wrong person is killed?
Does it deter anyone else from committing a similar offence - does it operate as a general deterrent? I suggest not. Studies demonstrate not. The people to whom such a penalty applies act in the heat of passion with no thought to the consequences or cold-bloodedly run the risk of being killed themselves or act from positions that they regard as unassailable - with the belief that they will never be brought to justice. If you want a death penalty and for it to be effective, provide it for traffic offences. We would have the safest roads in the world - and probably the most deserted ones.
RIGHT TO SILENCE
In our system of criminal justice we have what is described as the right to silence. There is really no such thing - what does exist is a series of immunities or protections that accompany a suspect or defendant through the criminal justice process.
A suspect is under no obligation to say anything to investigating police. A defendant at a court hearing is under no obligation even to participate, beyond just being there. And generally speaking there can be no penalty for refusing to take part in the process - no adverse inference can be drawn and no adverse comment can be made about the accused's silence or lack of cooperation.
Many people label this a myth - and one that is perpetuated to the detriment of society generally. They say it is contrary to commonsense - that in this day and age when just about everybody has had at least a basic education and knows right from wrong, a court or jury should be able to draw whatever inferences it thinks proper from the behaviour of someone accused of a crime. They say that discretions could be built in to changed procedures to safeguard the truly disadvantaged against real injustice.
That discussion continues.
MAJORITY JURY VERDICTS
Another small myth is that there is some magic in the number 12 when it comes to decisions by juries - or that the only reliable verdict by a jury is an unanimous one.
In Australia we now have the ludicrous position that majority verdicts are acceptable in all jurisdictions except NSW, Queensland and the ACT - unless the trial is of a Commonwealth offence, in which case there must be unanimity wherever the trial takes place.
By contrast, in Scotland (which is not so different from Australia) juries have 15 members and a bare majority - 8 - is sufficient for a verdict.
We really haven't come very far from separate rail gauges.
Many of our security problems may arise from the use of illicit drugs. This problem - like crime generally - is as old as humankind. We have always used drugs - things that grow, ferment or are compounded. We have done so, at least to begin, because we like them. Some people go on to become addicted to them.
There will always be a demand for mood altering drugs - and there will always be a supply. Whether we like it or not, we must accept those simple facts. We must be realistic in our response to those facts. There is nothing wrong with wishful thinking and we should use it to set goals - but many goals in life will be unattainable in practice. Life is about compromises and experience should guide us to them in a rational manner.
People and communities who have attempted to prohibit the demand for and supply of drugs have created additional problems. An abiding and extremely costly criminal justice myth is the so-called "war on drugs". The prohibition of a marketable commodity for which there is a demand creates a black market. Black markets create inflated prices and large profits. The prospect of large profits inspires the taking of entrepreneurial risk. The drug market is an economic model - criminals are driven by greed, even more than legitimate business people are.
Heroin is a commodity that is traded by criminals. Worldwide, that market is worth about $2 trillion pa. The heroin used in Australia is imported. About 3% of what comes in is seized - the rest is consumed by about 300,000 people. That figure is hardly surprising when you consider our coastline, the 7 million shipping containers that arrive each year and the 2 million airline passengers - not to mention the airfreight and postal items.
If expensive commodities are demanded by people unable to afford them out of their own resources they will use other people's. They become desperate. Undisciplined addicts have only one concern in life - getting the next dose. They will do whatever they can to get it with no thought to the consequences. That creates a challenge for the security industry. And the profits generated by the black market are invested in still more illegal behaviour and unpleasantness.
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All of that probably creates a gloomy enough picture for an occasion such as this - but what can we do about it? What practical steps can we all take to spike the guns of the mythmakers and go on to improve society for all of us? A tall order, but not an impossible one, as experience may be able to show us.
Some of the causes of increases and decreases in particular crimes are unavoidable. Some influences will produce results regardless of what we do or say. There are demographic features - consequences of statistics in the population. Some crime is correlated with particular ages. The post-war babyboomers - and now their offspring - have produced bubbles of crime as they have grown up. More people of a certain age - more crime of an expected type. Some crime is correlated with race. Some is committed more by one sex.
There is the influence of drug markets. As I have said, there will always be drugs; but there are fashions in drug type, there are changes in the way the markets operate and there are changes in the participants. Sometimes violence is associated with some drug markets, sometimes not. The extent and nature of those markets will influence the level of property crime.
The level of economic prosperity in the community will have an influence. People do choose to support themselves by legal or illegal occupations. If there are plenty of opportunities for legal work, criminals may make a cost/benefit assessment and choose that over a continuing a life of crime. This may be a consideration influenced by age. A young drug pusher or car thief may choose instead to work in a shop, but if the job disappears in an economic downturn or the now older person gets bored and has no skills for advancement, he or she may revert to a life of crime, but crime of the type committed by his or her now older age group.
The level of imprisonment in a society influences the crime rate. For some types of crime (for example, drug dealing) an imprisoned offender is quickly replaced by another. However, the incarceration of large numbers of violent males until they mellow certainly reduces the amount of violent offending in the community. It is an
expensive option, however - in Australia it costs about $55,000 pa to keep a prisoner in maximum security - and prisons are not crime free.
We can learn from the USA in this as in other matters - learn from, not follow. There the crime rate increased from World War II until about 1970. It has been falling since. In the 1970s the prison population in the USA doubled from 250,000 to 500,000. It cost $9 billion pa extra to do that, producing a 15% drop in crime. The next doubling, from 500,000 to 1 million added another $18 billion pa to the bill - twice as much - for only another 15% reduction in crime. There are now over 1.5 million prisoners - more men under correctional control than are registered as unemployed - and a further doubling, when it is reached, is estimated to cost about $55 billion pa extra: but for what benefit? Although it plays some role, just how cost effective is incarceration as a means of crime control?
The rate of intimate partner homicides has declined over time. The reason for that is clear enough - social changes have reduced the number of long term intimate partners.
Some forces are able to be applied in the reduction of crime. There are some policy initiatives, institutional forces and community efforts that can have a positive effect. It is to those that I argue we should give more attention in the future, instead of the perpetuation of unproductive myths.
POSSIBLE NEW DIRECTIONS
Research carried out over the last 200 years - since at least the time of Jeremy Bentham - confirms that informal social control is more effective in preventing crime than formal controls, such as police and prisons.
We all live in institutions - we depend on them and society would not survive without them. They are familial, educational, social, economic and political in nature. In their own ways they reduce individual motivation to commit crime, they supply effective controls to curb such behaviour and they protect their members against the criminal behaviour of others.
Families teach us the difference between appropriate and inappropriate behaviour and reinforce or punish accordingly. Educational institutions also reinforce moral values and broaden our vision. They and other institutions impose informal and formal social controls upon us. Economic institutions satisfy our basic needs, help us adapt to the environment and rank us according to responsibilities and rewards. Political institutions apply resources for collective goals.
Most of us have complex connections to a number of institutions that either deter us from criminal conduct or make it difficult to get away with. The final hurdle is provided by the state institutions such as the police and courts and more effective policing is an obvious path to less crime.
Therefore, individuals who are well institutionalised - or socialised - are self-regulators. There is an argument that if institutions lose their ability to regulate their members, individuals will act as they please, selfishly, without effective control and without protection for those affected. Institution building is therefore one effective way to improve crime prevention. Relationships need to be strengthened. We have stakeholders in all our actions - they need to be considered in all that we do.
Economically disadvantaged people are more likely to commit a wide range of offences. The economic health of a community where crime is prevalent will require attention.
Physical and psychological health are also important. Not surprisingly, there is a correlation between decreased alcohol consumption and reduced crime. Policies directed towards reducing the availability of alcohol and the level of its consumption will reduce crime.
Reducing the consumption of illicit drugs will also have an impact on crime.
Ordinary people can make a difference. Organised neighbourhood activities can contribute. Community meetings and practical initiatives to address specific local problems should be encouraged. And they are cheap. Individually, ordinary people can be assisted to decide to cut down on alcohol and drug consumption, to make the choice to work, to take pride in their community and protect it.
Educated people in good health, living in comfortable homes, with stable families (of whatever makeup), with strong social ties and steady jobs and enjoyable leisure pursuits usually do not commit crimes.
We should be focusing on maximising some or all of those opportunities and strengthening the associations that prevent crime in the first place, not perpetuating myths about the effectiveness of more police, zero tolerance policing, more and heavier sentences, more prisons and wars on particular types of offending. The mythical path is well-trodden, quick, cheap and easy - it just involves a bit of noise and can be taken between elections; but the truly effective route is more difficult and, goodness me, it might not produce measurable results until after the next election.
Crime will be with us forever and we have a budding crop of criminals. In NSW alone there are about 20,000 notifications for child neglect each year. At least a quarter of those children will end up involved in crime. New criminals are therefore coming on line at about one every two hours.
Families need support in the early days - there should be frequent home visits by nurses and other professionals while there is an infant in the home. There should be weekly home visits by pre-school teachers at the next stage. For delinquent and at-risk children and adolescents there should be family therapy and parent training available. Schools should have specially developed programs for innovation, communication, reinforcement of clear and consistent norms, the teaching of social competency skills and the coaching of high risk youth in thinking skills.
These programs, which start at the beginning and not at the end where we undertakers operate, have been tested and found to be effective. The empirical data are available. They are useful tools in the armoury of weapons available to us to reduce crime and improve our society - if only we could tap the political will to open the armoury door. Our challenge as business people and as citizens is to do just that.