It Is Time To End Mandatory Sentencing

I understand why people might clutch at straws, trying to see hidden benefits in the recession. It’s the only thing that can explain the old “It’s good for our souls” canard.

In all seriousness, that’s the sort of thing that can only be said by someone who (a) is in a job; (b) has not lost a personal fortune; (c) hasn’t seen their business go into liquidation or dwindle to nothing; or (d) had their pension fund effectively stolen from them – if they ever had a pension fund in the first place. For sure, there was a lot of crassness and stupidity afoot in boom-time Ireland and a pernicious emphasis on money, property, status and the trappings of wealth. But over 200,000 people losing their jobs is a far greater problem than the fact that a bunch of misguided tossers were indulging themselves. Sorry.
That said, it is possible that the new economic reality may force people to rethink things in a way that makes this a better place to live in certain not insignificant respects. I remember Paul Howard aka Ross O’Carroll Kelly, during a Late Late Show appearance, recalling a visit to a property expo of some kind in Dublin before the bubble burst. There, he was confronted by a 20 year-old salesman – I mean saleskid – who flashed two six shooter hands at a potential purchaser and uttered the immortal lines” “You... Need... An... Apartment... In... Bulgaria.”
Yeah. Like a hole in the head! At least there’s the consolation that we’re unlikely to hear that sort of nonsense again – or not for a long time anyway. 
But I jest. What I want to talk about is far more serious than that.
Under successive Ministers for Justice, over the past 15 years, the criminal justice regime in Ireland has become more focussed than ever on punishment rather than rehabilitation. It was Tony Blair’s Labour that came up with the slogan “Tough on Crime. Tough on the Causes of Crime”. Whatever about the UK, in Ireland the second part of the formula has been thoroughly and disgracefully neglected. Rather than encouraging positive initiatives in disadvantaged areas, it became a badge of honour for the likes of John O’Donoghue, Michael McDowell and Dermot Ahern to project a hard man attitude. More power was given to the Gardaí. Civil liberties became a dirty word. And there was a clamour for harsher and longer sentences to which the politicians responded.
Against that backdrop, what is called ‘presumptive’ sentencing was introduced into the Criminal Justice Act 1999 in relation to drugs offences, imposing a ten-year sentence for possession of drugs with an estimated street value in excess of €13,000, but leaving a small area of discretion for judges to take a more lenient view. Without getting too technical about it, there has subsequently been a drift towards the harsher ‘mandatory’ sentencing model, in the Criminal Justice Act 2006 and the Criminal Justice Act 2007, especially where second offences are concerned.
The low-grade emotional appeal of the ‘lock them up and throw away the key’ approach underpinned by mandatory sentencing is obvious. The train haveing been set in motion, would any politician have the balls to see if it could be stopped? Probably not. It seemed our course had been set.
However, the Irish Penal Reform Trust has not let the issue rest. Their position paper on Mandatory and Presumptive Sentencing, issued in November 2009, makes a very persuasive case against the policy, on a number of grounds, including: its ineffectiveness as a deterrent, the potential for miscarriages of justice, the implicit undermining of the integrity of the justice system and its impact on both the rates of imprisonment and, perhaps crucially, given the very different times we are living in, its cost to the State.
I must admit that I was intrigued when it was originally announced that Alan Shatter was being appointed Minister for Justice. For sure, there are issues on which I seriously disagree with him. But he is a very different creature to his immediate predecessors. His background is generally liberal. What’s more, he is not shy about believing that he is right. He has experience in relation to the legal system. And – I thought – he will not shirk an argument, even with the mandarins in Justice, who are used to getting their own way.
It did not come as a complete surprise, then, when he announced last week that the government would be reviewing the policy of mandatory sentencing for certain drugs offences. Delivering the annual Irish Penal Law Reform Lecture, he also committed to examining ways to get prisoners with mental health problems out of the prison system and to enhancing the internal complaints procedures for prisoners. He also stressed the importance of human rights principles and the need to “distinguish retribution from revenge.”
This might all be dismissed as giving the audience the kind of stuff that they want to hear. But I suspect that this would be unfair to Alan Shatter. If I am right these are his convictions. Now he needs to turn them into action.
On the issue of mandatory sentencing, he pointed out that the number serving sentences for drugs offences of ten years or more increased from one in 2005, to 69 in 2008. And to what benefit? “The idea of imposing long mandatory sentences for serious offences has had undoubted intuitive appeal,” he said. “But there is a growing body of evidence that the use of mandatory sentences does not make things better.” 
Indeed he went further, pointing to recent reforms in Michigan, in the USA, and in the Northern Territories of Australia which involve moving away from what he dismissed as a “blunt criminal-law instrument.”
He also made the point that, over the past five years, the number of people in prison in Ireland has increased by 50% – an astonishing statistic. “I have heard no suggestion that we are 50% safer because of this rise in imprisonment,” he said, further confirming that the emphasis should be on what works – and especially on the possibility of rehabilitation. In this regard, he pointed out that sending offenders to prison without tackling the underlying social conditions of their criminality – the lack of skills, education, and employment – while they are in prison only serves to reinforce the cycle of criminality. It isn’t exactly revolutionary stuff – but it is a very different emphasis that we have been hearing from Ministers for Justice in recent years.
But here is the recession rub. The cost of locking people up is enormous. An increase of 50% in the number of prisoners is a huge extra burden on the taxpayer. Given the state of the economy, the question is: can we sustain it? The bureaucrats might not have looked at things in this way during the boom years, but they have to now.
We need to cut costs. Social and community programmes, education and rehabilitation are less expensive than locking people up. Anyone who takes the issue of social disadvantage seriously has always known that this is the right approach for the criminal justice system to take, ethically, morally and philosophically. Now, however, it is a matter of economics too.
We cannot afford to maintain the prison population at its current inflated level. Dumping inmates back out on the streets is not the answer. But creating a framework where the emphasis is on community-based sentencing, rehabilitation and education rather than on putting people who can be helped behind bars to fester is a good start.
The idea that the ‘recession’ is in any way ‘a good thing’ should be dismissed out of hand. Too many people have been scarred by it to allow for any quasi-spiritual guff in that regard.
But if it forces politicians to see the wisdom in what Alan Shatter is suggesting then – within its own limited sphere – that at least will be a very good thing.