Criminal Justice System
Australian Criminal Justice System
"When all is said and done, the current criminal justice system is about as fair and effective as we can reasonably expect"
Overview of the Criminal Justice System: Fair and Effective - Penal Populism
The Democracy at Work thesis proposes that politicians have been properly responsive to public concern about crime by putting into place the more robust responses to offending which people want. An alternative perspective is that politicians have been populist in advocating these tougher policies. "Penal populism"; a term equivalent to Bottoms's (1995) "populist punitiveness"; is defined here as a punishment policy developed primarily for its anticipated popularity. Penal policy is particularly susceptible to populism, because there is a great deal of public concern about crime, and low levels of public knowledge about sentencing practice, sentencing effectiveness, and sentencing equity. This combination of concern and lack of knowledge can present politicians with the temptation to promote policies which promote electoral advantage without doing much about crime. The more willful that such politicians are in their disregard of the evidence about effectiveness and equity, the more we are inclined to regard them as penal populists.
One of the defining characteristics of populism is the exclusion of elite or institutional input from crime policy development. Penal populism involves a willful disregard of evidence or knowledge, and this knowledge is accumulated and held, typically, by those who work within, or are closely involved with, the criminal justice system. Sometimes the process of discrediting elite input can be explicit. For example, when two Australian jurisdictions introduced mandatory sentencing, the public controversy became very heated. At one point, the attorney general; a political appointee; in one jurisdiction went so far as to accuse the courts of being corrupt, leading to a public showdown with the chief justice. In the end, the politicians won. Australian governments argued that mandatory sentencing was "effective" because it was popular (Schiraldi & Soler, 2009).
Strengths of the System
In Australia, despite sentencing policy being a matter of state responsibility, all levels of government have attempted to exploit the issue for political advantage. For example, prior to the 1998 federal election in Australia, the incumbent prime minister made crime and punishment an election issue by adopting a pro-punishment line. Howard adopted a typically critical position (suggesting he was speaking for the people), accusing judges and others of being "soft" on crime. In the lead up to the 2001 election, both parties "got tough" on illegal immigrants. By denying entry to a boatload of asylum seekers, the prime minister was able to "snatch victory from the jaws of impeding defeat" at the polls. Following what appeared to be a groundswell of opinion for the hard line stand Labour backed legislative reform to restrict access by refugees to Australia and its courts (Schiraldi & Soler, 2009).
At the state level, the position over the last decade has been one of successive "reform" or compromise influenced by populist forces working through both government and opposition. Every state and territory in Australia reformed its sentencing legislation at least once between 1988 and 1998 (Sallmann & Willis, 2003). These reforms typically were announced with great fanfare, often in the heat of an election campaign and always against a gathering storm of public indignation and excited media coverage. The consequence has been significant increases in the size of the prison population. The dawn of this new era of populism can probably be best located at the 1988 New South Wales (NSW) state election marked, as it was, by a punishment "bidding war" and a promise of tough new penalties. The Sentencing Act (1988) [in Hogg and Brown] introduced as part of this election campaign established Truth in Sentencing (abolition of remission), which effectively inflated the prison population by a considerable margin. The act also introduced higher maximum sentences including a "natural life" sentence (Roberts & Stalans, 1997).
Hogg and Brown (1998, pp. 38 -- 39) note that the NSW minister leading much of this reform matched his stated desire to "put value back in punishment" with a ready acceptance of deteriorating prison conditions and the plight of prisoners suffering the consequences of overcrowded, underserviced prisons. The same pattern was observed in Western Australia, which saw rapid rises in its prison population through the late 1990s. This increase in prison populations precipitated by populist legislation led to overcrowded and underserviced prisons; the result was a major prison riot in 1998. Although the report into the riot identified overcrowding and under servicing as causes, the minister for justice had...
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