Beyond Traditional Boundaries – IPAA National Conference 2001 28-30 November Sydney Convention Centre
BEYOND A PUNITIVE APPROACH
Director of Public Prosecutions, NSW
President, International Association of Prosecutors
Author: “Getting Justice Wrong: myths, media and crime”
(Allen & Unwin, 2001, $19.95)
For the benefit of those who do not know me: some background. As the Director of Public Prosecutions for NSW I am the chief prosecutor for the state. I run a large legal practice with one client – myself. We do only one type of legal work – prosecuting crime. And in general terms I tell my lawyers how they are to do it. I am also, in that role, the CEO of a small state government agency with about 550 staff (including 350 lawyers) operating from 11 offices around the state. It is different from other state bodies, however, essentially because of the degree of independence that I have in operational decision making and in the administration of the Office.
I therefore have a keen interest in the approach that is taken by the criminal justice system to the work that comes into it. Indeed, in a small way I am able to influence that approach. But any fundamental change must come from the legislature.
I was appointed to this position seven years ago. For 19 years before that I had been in private practice as a barrister where I only ever had a staff of less than one equivalent full time position. As a barrister sometimes doing government work and in my previous lives I had gained a little knowledge about how government bureaucracies work – but, as we all know, a little knowledge …
So when I was appointed to this position I had a lot of learning to do. Much of it I did by observing – and then forgetting a lot of what I had observed. (It is not good to leave one’s computer memory full of junk and I find it doesn’t help the brain, either.) I had to learn how a small government agency is supposed to work and how it relates to public service requirements and other agencies. I also had to learn how it works in fact. I have also had to continue to practise criminal law at the most senior level and to keep up my knowledge and skills for that task.
I learnt about government bureaucracy – some of the “traditional boundaries” about which this conference is concerned. But the nature and independence of my office have allowed me the luxury of sometimes ignoring those boundaries and of conducting our affairs in accordance also with standards and requirements derived from other sources.
I have not escaped entirely, however, the conventional administration of government in this state. The model I have seen is perhaps universal. So before we can consider change and responses we should understand the system as it operates at present.
When a problem is identified (usually on an otherwise slow day) – whether it be a real problem in society affecting real people or a problem in the bureaucracy affecting public servants – a committee is formed. The politically correct requirements must be met, of course – representation from the right agencies with the right mix of people, and so on. But only one member of the committee is important – the chairperson – because the initiative of forming the committee and the work put into driving it (as opposed to resolving the problem) will eventually score big bonus points for that person’s contract of employment.
In due course the committee creates a working group of more junior officers to develop an action plan to deal with the problem at hand. The development of this plan is likely to take a comfortably long time, during which the committee meets from time to time to note the progress reports from the working group. The working group, in the meantime, mires itself in its own obfuscating bureaucracy.
When the working group finally produces an action plan that can be endorsed by the committee, it will include (of course) a requirement that financial approval for its proposals be sought from Treasury. It will be too late for that to be obtained for any expenditure to occur in the next financial year – so the committee will have another job the next year updating the working group’s proposals, probably requiring the reconstitution of the working group and the presentation of many more progress reports.
Much later, when about half to two thirds of the necessary funding has been approved – in principle – to be spread over the following three financial years, the committee will put the action plan back on its agenda for the appointment of working parties to implement its various sections – subject to funding, of course.
By this time, if the problem was only a public service problem it has gone away. Alternative ways have been found of avoiding the supposed difficulties or they were discovered not to be such a problem after all. But if it was a real problem, affecting real people, it will have reached crisis level. This is exactly what the bureaucrats have been waiting for.
Enter the politicians. Finally they give in to the demands of talkback radio and tell the bureaucrats what to do (or in extreme cases pass legislation). And it is done. If the situation has been handled well, no bureaucrat actually had to make a decision – to make a record of that decision – to be open to later criticism for having made a decision that was not, with the benefit of hindsight, the best possible decision in the circumstances. And the chairman of the committee is still rewarded for all the hard work he or she did. A triumph of positive inactivity!
Is all this an exaggeration? No, it is based on many true stories. Why should this frustrate me? After all, I am a bureaucrat, too, partly.
It is frustrating because in my job and in many other justice system jobs decisions have to be made almost immediately every single day – sometimes hundreds a day. And most of them are capable of seriously affecting the ordinary lives of real people in the community as well as government functionaries. These decisions have to be made by individuals, not committees, and those individuals must take personal responsibility for them.
If individuals could make broader policy decisions, we would have moved beyond a purely punitive approach to criminal justice long ago.
Lurking in the background of all this is that well-known oxymoron economic rationalism, by now another “traditional boundary”. This carries with it notions of efficiency, accountability and customer satisfaction. But the justice system operates largely outside this boundary as well, as it must. It is therefore further removed from both the need and the ability to respond rapidly to change, especially change driven by economic considerations.
Management gurus and the media – and politicians who feed off them – even some high level bureaucrats – seem to have developed some misunderstanding about the justice system. It is not a service provider for consumers. It does not have “customers” (although it is said to have “stakeholders”, whatever they are). It could never be said that an accused criminal is a “customer” seeking service from the courts, or someone whose approval of the process is an indicator of its effectiveness. Courts do not set out to please litigants or anyone else unfortunate enough to be caught up in that part of the process of government.
The judiciary is one of the three arms of government, providing a core function of the state chiefly through its coercive powers. The judgments delivered by the courts are no more services to customers than the laws passed by Parliament are services [per Spigelman, CJ].
The process of justice is inherently inefficient. Judicial activities are conducted in public according to principles of openness and accountability in the extreme, with appearances being at least as important as realities. Market considerations do not apply to the operations of the justice system. Its operations are to be assessed differently – and its agencies are to be assessed differently from the many other government agencies outside of the justice system. Performance standards cannot easily be devised and probably should not be attempted.
What matter are the all-important quality of judicial independence (which is constantly under threat, even in our own democracy) and the dispensing of substantial justice. Independence, fortunately, is one of the “traditional boundaries” that is most assuredly not dissolving or moving – nor should it be. But that independence, I fear, would be abolished tomorrow if the politicians thought that they could get away with it. Other “traditional boundaries” – including the painful bureaucratic processes to which I referred earlier – can be overcome by the “pollies” when they see a need. But it is that independence that acts as a bulwark against popular calls for an even more punitive approach by the criminal justice system.
A PUNITIVE APPROACH
The subtitle of this session is “How the justice system could respond to rapid change”. That is easy – for some of the reasons I have mentioned (among others) it cannot. Nor should it. But that is not to say that it cannot do anything about moving beyond a punitive approach. The justice system is conservative; but it should be. It develops and adapts at a slow pace; but so it should. Sometimes it is a blessing and an important safeguard for us all that it cannot respond to rapid change of the kind sought by some politicians and talkback radio.
The majority of politicians are consistently punitive when discussing the operation of the criminal law. As I said early in this address: “A little knowledge …” Why do they thump the law and order punishment drum?
It must be acknowledged that there is a high background level of apprehension and uncertainty in the community generally (the causes of which could be the subject of another address or, indeed, conference). There is certainly crime, as there always has been and always will be. (The best any of us can do about that is to keep it within manageable proportions.)
Politicians prey on people’s fears about being victims of crime, heighten those fears and then pretend to have the answer – more and more punishment for those unlucky enough to be caught. They can use some of their most florid language when talking about it; they can sound really hairy-chested and scary and can trot out the same refrain year after year. They can always divert public funds into policing and prisons with impunity (forgetting the necessary processes between the activities of those two agencies, of course). And best of all, measurable results of such policy decisions will be available by the next election – more arrests and, especially, more prisoners.
Politicians listen to talkback radio (or at least, their minders do). Sometimes they participate. In both cases they enter the information (or misinformation) loop between broadcaster and participant and they may both feed into and take from that loop. When they do so, they are not entering informed public debate; they are entering usually a highly charged emotional outpouring fuelled by both unrepresentative sides (one of which has often been deliberately selected by the other) for its immediate entertainment value in the pursuit of ratings and therefore advertising and profit. Whether or not they understand it at the time, politicians make commitments to the process and take away from it impressions based on incomplete and often selective material and emotionally directed declarations. They also have a compulsion to be seen to be acting – instantly – in a way that will attract votes at the next election.
On that basis, policy is made and policy often becomes law. Even criminal law.
While doing all this, the politicians claim, of course, to be acting in the public interest, responding to community concerns. Are they? Two months ago the annual conference of NSW Government CEOs was held. At the dinner on the first night the Premier (so I am informed) told all assembled that there was only one subject of concern to the community: crime and law and order. The very next day, however, one of the agencies made a presentation (at a session that I did attend) on some careful, detailed and thorough research that it had undertaken in 1994, 1997 and 2000. These public surveys showed that in 2000 the two most important issues in the public mind for attention by the State Government were education (at 34%) and the health system (at 31%), with crime/law and order at one third of that level of concern. It had been the same two leaders in the 1994 survey and, with the positions reversed – health system ahead of education – in the 1997 survey. Concern for crime/law and order had fallen from 1994 to 1997 to 2000 from 24% to 15% to 11%.
And when asked to predict what matters would be of concern in ten years’ time, the community nominated the same subjects in the same relative positions: education and the health system, with crime/law and order still at one third their levels.
How could the Premier have been so wrong? He took his cue from talkback radio.
In my view politicians are not responding to community concerns, they are trying to create community concerns – and to do so in an area where a “quick fix” supposed solution has immediate community appeal that can be reflected at the ballot box. The public lust for vengeance is strong – particularly if someone else is exacting revenge on their behalf. And it is far easier and cheaper to build two more prisons than to provide truly comprehensive health care and education of a universally high standard to all members of the community. (I shall return to the place of health and education.)
The number of people in prison in Australia has risen by 52% in the last ten years. (In Western Australia in September this year there were 2,632 prison beds – and 3,119 prisoners.) Before the Auburn by-election earlier this year, the NSW Premier boasted that the prison population in NSW had risen more than 20% in his six years as Premier. He said: “Make no mistake, more police officers, tougher penalties and longer sentences mean more people behind bars” – at about $60,000 per head per annum and now at about 7,850 prisoners and rising. But the crime rate has barely altered. Doesn’t that tell you something? And what happens to those people in prisons? What does it take for the logic of the situation to be understood and for us to move beyond a strictly dumb punitive approach?
It is not as if there is even a considered community desire for longer prison sentences for those offenders who are unlucky enough to be caught. Surveys in many countries have shown that people regard the general level of sentencing as too lenient – but when those same respondents are given the facts of individual cases and other information provided to the courts, they usually nominate sentences more lenient than those that were actually imposed.
Sometimes, however, the quick fixes adopted can be even cheaper than a couple of extra prisons. A few years ago the NSW legislature pretended to introduce mandatory life sentences for really bad murder and drug trafficking in NSW. Those provisions have never been used, other existing laws providing quite adequate scope to sentencing judges to impose life sentences if they think them appropriate – and they do. That was just an example of “Clayton’s” toughness that we see repeated from time to time.
Similarly, two months ago the maximum penalty for serious sexual assault was increased from 20 years imprisonment to life. It remains to be seen whether or not such sentences are imposed in any cases; but it is worth noting that the maximum penalty for offences of that kind (formerly known as rape) have gone from death in the 1950s to life imprisonment, to as little as eight years, back up to 20 years and now to life again. Throughout all these changes however, the gaol time actually served by offenders has not varied greatly, nor has the incidence of offending.
SUPPORT FOR A PUNITIVE APPROACH
What enables these bankrupt punishment campaigns to be so readily accepted by the uninformed community? Misinformation and emotional rhetoric. And apart from the politicians, where does it come from? Talkback radio, the tabloid press and low IQ television. It is particularly in the relationship between the media and politicians that we should identify some matters of very real concern that are preventing us from moving beyond a strictly punitive approach.
Oscar Wilde once observed, long before the advent of electronic mass media, that “by giving us the opinions of the uneducated, modern journalism keeps us in touch with the ignorance of the community”. Not only are we now kept in touch with its ignorance, we are almost overwhelmed by it.
One medium now widely employed is talkback radio. As long ago as 1990 the former Australian Broadcasting Tribunal said, with masterly understatement: “Talkback encourages robust debate on issues by people who are not fully informed”. Not only is ignorance (on all sides) a problem. One of Australia’s “kings” of the airwaves is Richard John Sinclair Laws (known as John). He has said with the familiar resonance provided by his “golden tonsils”: “I’m not a journalist and I don’t pretend to be a journalist. I’m an entertainer … there isn’t a hook for ethics.”
So entertainment in an ethical desert is what we should really expect when we listen in. Those “entertainers” assiduously develop their own personae – their own celebrity – and gather their own fans from many sections of the community, including politicians: developing a relationship with them that is, as Naomi Klein [author of “No Logo”] might say: “… emotionally intense but shallow enough to turn on a dime”. They are concerned first and foremost to maximise their own income (sometimes by means that do not stand up to close scrutiny – cf. the recent “cash for comment” affair in this country). Their second priority is to maximise the income of their employers. While pursuing these objectives (and no doubt to assist their achievement) they like to be seen to be influential in public policy making – it enhances their status in some quarters and boosts their egos. They do that by intensifying their relationship with their consumers (including politicians), whom they manipulate to all these ends. They encourage the formation of particular attitudes in their talkers and their listeners, consumers who include the ordinary public and the policy makers themselves.
Therefore, while one party to a talkback conversation puts emphasis on the provision, for profit and influence, of entertainment pitched at the level of emotion, the other party (and often the listeners – including politicians) may be misled into thinking that it is a serious, rational discussion of some enduring importance. And worse than that, our politicians are likely to think that it is serious for other reasons – reasons that have everything to do with their own soundbites and their prospects for re-election.
Serious policy is formed on the basis of this deception. Talkback radio has now become vital in the strategies of politicians, both State and Federal. In 1997 the Prime Minister even argued that talkback hosts set the political agenda.
Talkback radio, the tabloid press and low IQ “current affairs” television stress persistent themes:
- that there are not sufficient police on the job;
- that there is a continuous crime wave that makes living unsafe;
- that new offences should be created to meet new types of law-breaking;
- that penalties prescribed for offences are not severe enough;
- that judges are wimps and not representing community wishes and the penalties they impose are inadequate;
- that the politicians should be telling the decision makers in the system how to respond.
All of this rates well because it is cloaked in emotional rhetoric and preys on the insecurities I have mentioned and the disconnectedness many members of the community feel from the public decision making process. It trades on irrationally based fear. It is cheap and easy to produce. The most obtuse journalist – even entertainer – is capable of grasping the ideas behind these assertions and there are plenty of precedents in the files to be plagiarised. It makes the story-tellers seem tough (which, they think, is a better public image than that of a caring, sensitive, thoughtful, questioning and constructive commentator) and it makes them seem brave, not afraid to level a broadside at the institutions of society.
In his “Message from the President” in the June 2001 issue of “The Reformer”, the President of the International Society for the Reform of Criminal Law, Michael Hill QC, described the situation well when he said:
“As politicians and citizens move further and further apart, the politicians seek ever more stridently to tap into what they call ‘public opinion’. Whether the opinion they aim at is genuinely that of the public and not merely an echo of the tabloid screech is not important. For the politicians, there is no difference. There is nothing very difficult in recognising that if citizens feel unable to live within their own society without threat or fear, law and order becomes a totem for the politicians.
And, so, the criminal law, its enforcement, the administration of criminal justice, the penal system become the stuff of party politics. Slogans such as ‘tough on crime and tough on the causes of crime’ ring through the chattering classes and pound at the remainder of society through the media. The statistics of crime are massaged to show that the government of the day has or has not been successful in ‘returning the streets to the residents’. No government in any jurisdiction of which I have any experience shows any sign of stepping back from the puerile superficiality of the debate to think beyond giving the state and its agents increasing powers and visiting punishment of increasing severity upon those defendants who actually emerge from investigation and trial as convicted criminals. The fallacies have been known to us all for decades.”
And as Jeff Shaw QC, the former Attorney General of NSW, once said: “Law and order is an easy thing for politicians to push”.
Where are the legitimate community concerns in all of this? And not when – but how – can we move beyond a purely punitive approach?
There is a great deal of crystal ball gazing and other speculation about the future contained in the program of this conference. That is not a bad thing in itself, so long as participants do not lose sight of what we are trying to do in the present and, just as importantly, what has been done in the past. Remember George Santayana:“Those who cannot remember the past are condemned to repeat it”. While there may be much of the past that we should not want to repeat, there may be much of it that we should remember for a number of other reasons. For example, remember that mandatory sentencing was tried in NSW in the 1880s. It lasted one year and one week.
This conference is addressing the notion of “Beyond Traditional Boundaries”, as if there is something across the back fence or across the curvature of the earth’s surface that may make life a whole lot better for us. It seems that, apparently, the boundaries in which we have worked until now are moving and dissolving, and rapidly, and the justice system must respond to those rapid changes. There are things we can do collectively to take us beyond a solely punitive approach to crime, but they cannot be done quickly and change will be incremental. The boundaries of criminal justice are not easily moved or dissolved. This is a core business of government which. At most, is being bruised around the edges by forces it cannot control, adapt or destroy.
The criminal justice system in any society exists and is meant to operate for the general benefit of that society. Prosecutors act on behalf of the public generally and as with judges we must act in the public interest. The media often skews the public perception of what we are, what we do, why and how we do it and, importantly, what we are capable of doing. We simply have to learn to live with that by constantly asserting our independence and adhering closely to the principles that are there to guide us, because without the confidence of the community in what we do we are wasting our time.
We can counter this corruption to some extent by aggressively providing factual information to the community through whatever outlets we can command. An informed public will be more capable of making its own judgments and representations than a public that has ingested uncritically the pre-packaged attitudes peddled by the talkback and other uninformed commentators (or “entertainers”).
The impact of the media on political action is more difficult to address. In the longer term, a better-informed constituency may have some impact on the directions taken by its political representatives. It is a forlorn hope that politicians themselves (speaking generally) might act reasonably in the long term public interest.
With a short election cycle and the general attraction of vengeance to the public mind, we are all in for many more “law and order auctions” at election time, fuelled by the “shock jocks” of talkback radio.
What should we be doing? We players in the criminal justice system are just undertakers (of a kind) – doing our best to clean up after an unpleasant and unlawful event with proper respect for the rights of all concerned. In my view, by focusing attention on – and devoting resources to – punishment, we are addressing the wrong end of the process. We do not do nearly enough by way of the prevention of crime in the first place. And when crime is contemplated, the fear of detection is a much more powerful deterrent than the possibility of eventual punishment.
Well-educated people in employment and reasonable health, with stable housing and relationships, rarely commit crimes. For example, studies made of Aboriginal offenders in this state show that the greatest predictors of offending are lack of education and unemployment. Even part time employment that at least occupies people for some of the day has a beneficial effect. There are now some limited schemes in place to address these matters, particularly among young Aborigines.
Violence against women is endemic in our society. Campaigns are running to dissuade men from beating women – in Aboriginal and non-Aboriginal society.
Programs are in place to make properties more secure against offences and to protect practices (such as dealing in cash) more secure against offending. There are small, local crime prevention programs in operation.
But much more needs to be done at a fundamental level. Why is it acceptable to spend at least $150 million constructing two new gaols that cost over $50 million a year to run, but not to put such substantial amounts into education and health programs that might assist in preventing offending in the first place?
Because the results of that sort of spending will not be measurable before the next election.
The annual budget for Corrections in NSW was $480 million in 2000 (plus another $22 million for the private prison at Junee). By and large this is expensive warehousing of offenders, most of whom are learning how to offend again and how to avoid being offended against while inside. More than three-quarters of prisoners are inside for drug-related crimes – but in 1999-2000, $6.28 million was spent on drug and alcohol rehabilitation within the system.
We are beginning to address drug offending by diversionary programs that emphasise treatment and rehabilitation outside of prisons. They include:
- the Parramatta Drug Court;
- the statewide Cannabis Cautioning Scheme;
- the far North Coast and Illawarra Drug Offenders Compulsory Treatment Pilot Cautioning Scheme;
- the statewide amendments to the Young Offenders Act;
- MERIT – the Magistrates Early Referral into Treatment scheme, operating on the North Coast and in Wollongong; and
- The Western Sydney Youth Drug Court.
This is piecemeal, almost haphazard, experimentation only. We well know that fundamental reform of drug laws is long overdue. If we could manage that, we would remove the motivation for a great deal of offending.
The political will to take bold and courageous steps that may not be endorsed by talkback is lacking. Without it the justice system cannot respond sensibly to change. Until it is found, I fear that we are stuck with an unthinking punitive approach to crime.