Crime and Punishment Rehabilitation or Retribution
by Eamon Leahy SC
There is a species of barrister who seldom leave the sanctuary of the Law Library without taking with them The Rules of the Superior Courts – for ballast, and an affidavit of service - which is clutched and, if necessary, sucked like a security blanket. These same barristers rarely voyage to the tempestuous waters of the Central Criminal Court or to the dangerous undercurrents of the Court of Criminal Appeal. Rather, they seem to become becalmed in the environs of Courts 5 and 6 – where they bob about as a forgotten flotilla with their sails flapping and their anchors ever at the ready – lest some unwelcome squall carry them out to the open seas of the Round Hall.
Amongst their many peculiarities and foibles this species has one unique characteristic – at the mere mention of the word crime their heads tilt slowly backwards, as if about to be afflicted by a most unwelcome nosebleed, and simultaneously they manoeuvre their quasi-judicial spectacles down to the very tip of their noses.
Crime, they will tell you, is nothing to do with them. It is, they will tell you, a fringe activity, conducted by those at the fringes of society and catered for by a fringe bar.
Their blinkered perspective regrettably mirrors that of many parliamentarians and many members of the public. Crime, they say, is a problem – but it is always a problem for others. It is caused by others, not dealt with properly by others and is the concern of others.
No political philosophy has a monopoly on this conscious and self imposed estrangement from crime. The ‘hang ‘em and flog ‘em brigade’, from the comfort of their tweed and twin sets are just as prone as the angora clad, Sweet Afton puffing ‘Love ‘em and leave ‘em brigade’ to point an accusing finger at virtually everybody else and demand to know – what are you doing about crime ?
Those of us who practice as lawyers at the coal face of the criminal bar know our specific role – we are there to advise and to act so as to ensure a scrupulous adherence to rules and procedures designed to guarantee fairness and bring about a result with a sufficient level of certainty for society to act on a conviction. We are there to ensure that the consequences of conviction are fair and proportionate in the context of our Constitution.
That is our specific role. It is not our only role. Donning the gown of advocacy does not remove the responsibility of citizenship. Lawyers, no less than any other group in society, have a duty to constantly question the criminal law. We have a duty to question its substance, its intentions, its operation and its consequences.
The substance of our criminal law is a colourful and often historic cocktail. It is an amalgam of the common law, pre-independence statute law and post independence statute law with an ever present constitutional dimension. Few in society could give a comprehensive list of the activities proscribed by the criminal law. Fewer still could state the potential sanctions adhering to those proscribed activities. No-one at all could, with confidence, answer the question – Why all of these activities are contrary to the criminal law and justify the level of sanction which society tacitly endorses.
Historical accident, political expediency and well intentioned good governance all, to a greater or lesser extent, play a role in determining the substance of our criminal law. But is that good enough ? Are we satisfied to permit the continuation in existence of crimes – both statutory and common law – which only continue to exist because sufficient parliamentary enthusiasm has never been mustered to secure their abolition ?
The case for a permanent Oireachtas Committee, properly staffed and professionally advised, to monitor the criminal law and its implementation is overwhelming. The people, through their elected representatives, are entitled to know what acts contravene the criminal law, they are entitled to know which laws are being enforced and which laws are not. They have a right to know which laws are effective and which are ineffective. They have a right to know whether the appropriate range of sanctions is available for specific offences and, if available, whether they are being applied by the judiciary.
The criminal law reflects a facet of civil morality. To have any rational justification it must remain contemporaneous. It must reflect the views of a broad mass of people. It must be acceptable.
The question ‘Who decides what conduct is criminal ?’ should not be answered by default. In a constitutional democracy the answer must be that Parliament decides subject to the constitutional supervision of the Courts. Suitable enquiry and supervision by the Oireachtas would ensure a conscious and continuing approval of the criminal law.
The extent of the lack of debate which exists in relation to the substance of the criminal law is dwarfed by the lack of debate in relation to the intentions of the criminal law. What does the criminal law seek to do ? Is it effective in achieving those ends ? Would other methods be more effective ? Should we seek to go about it in a different way ? These are questions which are not alone unanswered – for the most part they are unasked.
It is trite to say that the theory of the criminal law is that it operates as a stop sign for members of society. Or rather that it operates as a stop sign for members of society whose personal morality or circumstances might permit or coerce them to travel into forbidden territory. I believe that it is here, when examining the intentions of the criminal law, when examining the results that the criminal law seeks to bring about that we are at our most blinkered. There is an unhelpful – but by no means universal - tendency to view criminal problems as being susceptible only to criminal law solutions. This blinkered perspective shuts out from consideration an array of potential solutions.
The drug addict engaged in street crime to feed a drug habit may well be unable but will certainly be unwilling to view the criminal law as a stop sign. At best it will be seen as an exhortation to proceed with caution, at worse as an utter irrelevance. Their primary motivation is not a desire to rob, it is to satisfy their craving by obtaining the drug.
From the perspective of themselves and from the perspective of the criminal law addicts are at their most dangerous when in search of a fix. That is the time when they are most likely to cause damage to themselves by engaging in dangerous activity, by overdosing or ingesting adulterated or impure substances. It is the time when addicts are most likely to engage in crime to obtain money to feed their addiction. It is also the time when the criminal law is most ineffective.
For so long as the addiction continues, the need for resources to feed the addiction will continue and consequently the need to commit crime will continue. In this instance crime is a secondary problem to drug addiction. Yet the primary response to this problem is a criminal law response. In so saying I do not dismiss as irrelevant the work of very many organisations and agencies – including state agencies and state funded agencies – who participate in the voluntary detoxification and rehabilitation of drug addicts. But such work is ancillary to the main response of society – the criminal law response.
I want to invite you now to shed the traditional, what I call the blinkered, approach to criminal law. And to view the problem of the drug addict and the problem he or she creates for society in the context of our constitution. The addict has the same rights as every other member of society – that includes the right to bodily integrity. The State has a duty to protect and in so far as is possible to vindicate that addict’s right’s including their right to bodily integrity.
How is that right vindicated if the State utilises only the criminal law in its active response to the addict’s problem. The answer is that it is not. What is there to prevent the State taking on a more active role in seeking to vindicate the addict’s right to bodily integrity ? Is there, for instance, a clear constitutional obstacle? Many would say ‘Yes’ to that question. I beg to differ.
Recent decisions by both the High and Supreme Courts have opened up, as at least a reasonable possibility, the development of civil arrest and detention as a potential means of vindicating the right to bodily integrity of persons disadvantaged by drug addiction.
Such action could only be taken if it commanded widespread public acceptance and even then only in limited and well defined circumstances with the outer parameters of detention being strictly limited by law.
I advance the concept of a limited form of civil detention as being a component of an anti drug strategy to illustrate the potential for non criminal law remedies to play a part in society’s response to crime. Social initiatives to promote education, foster employment and tackle social deprivation must be to the fore in addressing the ills of society – criminal solutions are expensive and ineffective substitutes for early intervention and the provision of genuine social opportunity.
The ultimate purpose of the criminal law – the prevention of crime - is often best achieved by non criminal initiatives. In this country we can point to the success of the civil remedies introduced by the Proceeds of Crime Act, 1996 in tackling crime. In 1996, in a decidedly un-cricket like manoeuvre, this State decided that the proceeds of crime could be frozen and ultimately confiscated in civil proceedings. Overnight the traditional rules changed – but not to the detriment of society.
The need for assessment and innovation in our thinking on crime is ever present. It exists in relation to the concept of crime. It exists in relation to the objects of our criminal justice policy. It also exists in relation to the operation of our criminal justice system.
The topic of the operation of our criminal justice system is vast. It embraces rules of procedure, rules of evidence and the entire operation of the criminal justice apparatus of the State. Any meaningful exploration is beyond the scope of this paper. But that does not mean that there are not steps both procedural and legislative which could be taken so as to enhance the effectiveness of our system. Let me give just one example. Approximately 10 years ago the jurisdiction of the Central Criminal Court was changed. In addition to its staple diet on murder, piracy, treason and genocide the crime of rape was added. Placing the crime of rape in the restricted category of offence which may be tried in the highest criminal trial court in the land was intended by the Oireachtas to reflect society’s abhorrence for that offence. A similar motivation led to the new statutory crimes of Section 4 Rape and Aggravated Sexual Assault being added to the Central Criminal Court’s jurisdiction. The result of this well intentioned adjustment in the workload of the Central Criminal Court has been unprecedented delays in the hearing of this category of cases. I should make it crystal clear that the delays which are now experienced occur despite the assignment by the President of the High Court of more judges to the Central Criminal Court than at any time in the history of the State. The delays occur despite the introduction by Mr Justice Carney, as the judge in charge of the list, of a new and efficient listing system which ensures that trial dates are reserved for trials. There is no further step available to the judiciary to speed up the hearing of murder and rape cases.
That does not mean that there is no solution. It is open to the Oireachtas to introduce by legislation a new statutory Court of Criminal Trial on which both judges of the High and Circuit Courts may sit. Such a legislative enactment would immediately make available additional experienced trial judges and it could within months eliminate the present log jam.
I suggest this in the hope that it will provoke debate. There are without doubt many other proposals which may afford more acceptable solutions. Without debate none of them will come forward.
I turn finally to the consequences of crime – not in the first instance for the victim or for society but for the offender. The long journey down the steep steps of the court holding cell is one which no lawyer relishes and yet it is an integral part of the practice of the criminal law. It usually provokes a short lived debate on the nature of punishment and for those of us fortunate enough to leave that cell and head to our homes, a reflection on the purpose of punishment.
Is punishment exclusively for the purpose of retribution ? Is rehabilitation a desirable or even a necessary component of a sentence. Where, if at all, does deterrence fit into the overall scheme ?
The menu of options generally available to a judge at the sentence stage of a criminal case remains wide and varied. In this jurisdiction we have avoided the practice prevalent in many other countries of legislating for mandatory sentences. Such sentences exist in its purest form only in relation to the crime of murder – which carries a mandatory penalty of life imprisonment. In a slightly diluted form it exists in relation to the comparatively new offence created by Section 4 of the Criminal Justice Act, 1999 – the offence of possession of a controlled drug with a market value of £10,000 or greater for the purpose of sale or supply. A minimum sentence of 10 years imprisonment is specified in the Act but so to are a range of mitigating factors which the sentencing judge may legitimately have regard to in reducing the sentence below 10 years.
Thus, the menu of options generally available range, depending on the court, from an order finding the facts proven but dismissing the charge under the provisions of Section 1(1) of the Probation of Offenders Act, 1907, through placing the offender under the supervision of the Probation and Welfare System, through Community Service Orders, through monetary penalties, through suspended sentences to imprisonment.
The imposition of a sentence of actual imprisonment should always be the last resort of a sentencing court to be used only when the other sentencing options have been previously utilised or where the gravity of the offence renders any other punishment inadequate. It follows that where a person without prior convictions appears in a court of summary jurisdiction for sentence in relation to an offence which has judicially been determined to be a minor offence it is rare, if ever, that a sentence of imprisonment should be imposed. A study conducted by Dr Paul O’Mahony and published by the Department of Justice in 1997 indicated 78% of offenders did not receive a custodial sentence for their first offence. A decade previously only 64% of offenders did not receive a custodial sentence for their first offence.
An analysis of European Prison Populations in 1999 shows that of 17 countries surveyed Ireland had a smaller per capita prison population than Portugal, England & Wales, Scotland, Spain, Germany, Italy, France, Netherlands, Luxembourg, Austria and Belgium. We were, however, ahead of Northern Ireland, Greece, Denmark, Sweden and Finland.
On any given day in Ireland there are approximately 5,000 offenders serving community based sanctions under the supervision of the Probation and Welfare Service. These include approximately 900 offenders who have been required to perform community service by the courts and over 120 offenders on intensive probation supervision. This is approximately 2,000 more than the average number of persons in custody.
Research conducted by Dr Paul O’Mahony [Mountjoy Prisoners – A Sociological & Criminological Profile] and published by the Department of Justice in 1997 suggests that "… about three-quarters of all sentences of imprisonment for adults (those over 21 years) are for periods of 6 months or less and only about 9% are for periods of more than 18 months. By comparison in England and Wales less than half of all sentences are for 6 months or less and 26%, or almost three times as many as Ireland, are for longer than 18 months."
Dr O’Mahony’s study reveals that the comparison with the United States is even more stark. "As few as 11% of sentenced State prisoners in the US have sentences of 2 years or less and as many as 30% of them have sentences of over 15 years".
Our international positioning and domestic statistics indicate that we are not unduly reliant on imprisonment as a form of punishment. But do we as a society have a clear view as to the purpose or purposes of imprisonment. Can retribution and rehabilitation co-exist in a prison regime ? I believe not only that they can but that they must.
The length of a sentence represents the measure of retribution and such element of deterrence as may be appropriate. Beyond that, despite whatever tabloid headlines may be provoked, prisons must be places of relative comfort and opportunity. Not everyone will take the opportunity offered – but that is no reason to withhold the opportunity.
We need to develop our understanding of prison to take it away from an exclusively ‘high wall, strong bars’ concept. Open prisons, half-way houses, hostels and supervised release must be understood to represent an appropriate part of rehabilitation. The new proposals contained in the Criminal Justice (Temporary Release of Prisoners) Bill, 2001 are a welcome step in the right direction.
The prison building programme of recent years has meant that Temporary Release as a method of bed management has all but ceased. In 1996 approx 19% of the prison population were at any given time on temporary release – by this year that figure had fallen to approx 6% - and their release was overwhelmingly necessitated by attendance at courses and other rehabilitative measures.
I have little if any time for people who simultaneously complain of prison overcrowding and prison building. Prisoners have a right to comfort, space and an acceptable level of privacy. Society has a duty to provide that for them and in that regard this State has taken welcome steps over the past number of years.
Prisoner release should no longer involve the simple clanging of a door. Post release accommodation and supervision are also part of the rehabilitative process and must be addressed prior to the release date.
There is no conflict between punishment and rehabilitation if both are conducted in an enlightened prison regime.
For so long as there are people there will be crimes and for so long as there are crimes there will be lawyers. The challenge for us is not to survive – it is to shed the blinkers, to participate and to provoke.
End.