Greg Barns lays into the 18th century notion of general deterrence in sentencing

Long sentences do not, I repeat, do not deter others from crime

JUSTICE Matthew Palmer, a senior member of the New Zealand judiciary, gets it.

Recently he lifted the lid on the mythology of the sentencing process to which New Zealand, like Australia and other Anglo-American countries adheres.

It is this — that longer jail terms lead to less crime.

They call it general deterrence and to be blunt its, shall we politely say, nonsense.

What Justice Palmer did was what all judicial officers should do when they hear a state lawyer bang on about the need for general deterrence and a lengthy jail term for the defendant. According to a report in the New Zealand Herald on August 28, Justice Palmer “told lawyers ahead of sentencing he wanted them to come to court with evidence longer sentences actually had the deterrent effect the law told him to consider.”

Guess what happened next. Naturally, because there is enough evidence to fill a jail, the defence lawyers turned up after a few days with unambiguous research demonstrating there is zero link between deterring people from committing crimes and long jail terms. But the State lawyers came back to court with nothing. Yes nothing.

For those who know anything about this area, as opposed to intellectually dishonest or plain stupid MPs, police, the tabloid media, not to mention the vigilantes on social media, it is no surprise the cupboard was bare.

At last a lawyer who will no longer sit and listen to the irrational and evidence-free proposition that sending people to prison for long periods deters others. Mind you we are fortunate that Tasmania’s Chief Justice Alan Blow essentially said the same thing last year when he observed that jailing drug traffickers for long periods has no impact on demand for drugs.

Justice Palmer’s approach to the use of jail is not only rational in that he has confirmed there is no evidence that when politicians increase jail terms, or appeal courts think they have to sentence for longer because of “community expectations” (whatever that means) but it also deals with the fact we jail people for far too long anyway.

Another fine judge, the great American jurist and economist Richard Posner, has said there is no sense, in the vast majority of cases, in keeping people locked away. Mr Posner, one of the brilliant minds that developed the University of Chicago-based Law and Economics movement, argues against long jail terms on economic grounds. Mr Posner, then sitting on one of the most prestigious federal courts in the US made, in a 2012 decision, telling observations about the undesirability of sending people to jail for lengthy periods.

Imprisonment is the most expensive form of punishment and as prisoners age the costs rise with age mainly because of the medical component, Mr Posner argued. Then there is

the fact society is missing out on a prisoner being released so he or she can work and contribute to the community. This is another social cost of long sentences. Keeping people locked up for years means “the loss of whatever income the prisoner might lawfully have earned had he been free, income reflecting his contribution to society through lawful employment,” Mr Posner wrote. We can add here that age decreases the risk that a person will commit more crimes.

And he had this guidance for judges when they sentence: “The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one. An impressive body of economic research … finds for example that forgoing imprisonment as punishment of criminals whose crimes inflict little harm may save more in costs of imprisonment than the cost in increased crime that it creates.”

For example, take drug trafficking. It is a victimless crime, because as Mr Posner and his former co-blogger the Nobel Prize-winning economist Gary Becker, now deceased, argued there is a market in which there are willing sellers and willing buyers. Yet our courts are obsessed with the idea of sending people to jail for ever lengthening periods and inflicting on society the lost opportunity that the trafficker might be employed and contribute income and taxes to society.

But back to Justice Palmer’s broader expose of the intellectual bankruptcy of the idea of general deterrence. Every time a court utters these words think to yourself there is no evidence to support what is essentially an 18th century idea that holds that we are all rational all the time so we will not commit a crime because we know if we get caught we will go to jail for a long time.

Greg Barns is a human rights lawyer who has advised state and federal Liberal governments.