There are no facts, only interpretations.
Friedrich Nietzche
On 23 January 2014, the ABC reported the following quote from NSW Bar Association president, Mr Phillip Boulten SC:
“There’s no evidence at all that mandatory sentencing ever decreases the amount of crime that’s committed and it has the ability to act unfairly on vulnerable and disadvantaged groups.
“It isn’t effective, it’s not a deterrent, it just leads to more people being locked up for no good purpose.”
On 5 February 2014, the ABC’s Fact Checking Unit found Boulten SC was ‘overreaching’ in his claim. In determining its ‘verdict’, Fact Check relied on five examples of the outcomes of mandatory minimum sentencing.
Fact Check example: The 1997 Northern Territory Sentencing Act for certain property crimes – repealed in 2001 (property crime went up).
The Act provided a mandatory minimum term of imprisonment of 14 days for a first offence, 90 days for a second property offence and one year for a third property offence (the Act was amended in 1999 to provide for alternatives to sentencing in ‘exceptional circumstances’). The Juvenile Justice Act provided that a person aged 15 to 18 who has been convicted for a certain property offence and has at least one prior conviction for such an offence, must be detained for at least 28 days (with additional measures applicable on top of the mandatory minimum). Until 2000, children between 17-18 years were treated as adults under the Sentencing Act rather than under juvenile justice legislation.
The result was an explosion in incarceration rates, with associated costs, particularly among the Indigenous population, largely due to the inconsistencies of the mandatory sentencing regime. For example, the theft of petrol from a bowser attracted a mandatory sentence, the theft of a tankful of petrol through the use of a fraudulent credit card – a ‘white collar crime’ more likely to be committed by non-Indigenous offenders – did not. In this submission to the UN Human Rights Commission, the Australian Human Rights Commission details research findings & case studies including:
- Two 17 year old girls with no previous criminal convictions both sentenced to 14 days in prison for theft of clothes from other girls who were staying in the same room.
- A 15 year old girl was detained for 28 days for unlawful possession of a vehicle – she was a passenger.
- A 17 year old petrol sniffer from an Aboriginal community was sentenced to seven months plus 120 days for stealing food, alcohol, cigarettes, soft drink and petrol and causing associated minor property damage. The stolen items were consumed with friends. His sentence was based on the mandatory detention formula (120 days) with an additional seven months. He had very little family support and his record was clean until June 1998.
- A 15 year old Aboriginal boy attempted suicide while in police custody, having been arrested for a mandatory detention offence (property damage). He broke a window after hearing about the suicide of a close friend.
- A 27 year old white teacher disputed the quality of a hotdog at a Darwin fast food bar and poured water onto the till. She paid in full for the damage she caused. She was sentenced to 14 days in prison.
- A 29 year old homeless Indigenous man wandered into a backyard when drunk and took a $15 towel. It was his third minor property offence. He was imprisoned for one year.
- An 18 year old man was sentenced to 90 days in prison for stealing 90 cents from a motor vehicle.
Confession: the 90 days for 90 cents’ worth of petrol is probably the most useful case study I have found to use against the introduction of mandatory minimum sentencing on cost-effectiveness grounds. For this one-cent-a-day crime, taxpayers coughed up about $15,ooo (based on estimates contained in the 1995-96 NT Correctional Services Annual Report).
Fact Check example: Western Australia’s “three-strikes and you’re in” law for home burglaries in 1996.
Fact Check doesn’t assess the efficacy of the 1996 laws at all. Handy. As the adage goes, if you want something done (properly), do it yourself – so I did. The AHRC submission states:
“The Western Australian laws provide that when convicted for a third time or more for a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months imprisonment or detention. This is regardless of the gravity of the offence.”
If the results of research detailed here were not so serious, they’d be laughable:
- Aboriginal children constituted 80 per cent of the three strikes cases in the Children’s Court of Western Australia from February 1997 to May 1998.
- In the four months after the amendment of the Act, an average of seven children a month were given mandatory sentences.
- In 93 per cent of cases where the juvenile was from a non-metropolitan area, the juvenile was Indigenous.
- 34 per cent of all prisoners in WA were Indigenous.
- The rate of imprisonment of Indigenous people was 21.7 times higher than that of the non-Indigenous population.
- Aboriginal juveniles comprise approximately one-third of the Children’s Court caseload.
Fact Check example: mandatory minimum sentences for any assault on a police officer, introduced by WA’s Barnett Government in 2009. Fact Check appears to have relied on this WA Government media release to support its statement that:
“… the results indicate crime decreased under the 2009 legislation which introduced mandatory minimum sentences for police assaults. The then police minister Rob Johnson and attorney-general Christian Porter announced a 28 per cent decrease in assaults on police officers one year after the laws were introduced.”
It’s one thing for a government to trumpet a percentage, but for a fact checking service to report one figure at the top of a press release without any context is inexplicable – particularly when the information is contained on the same page.
Of the 377 offences reported between September 2009 and September 2010 (following the introduction of the mandatory minimum sentence) only 14 charges were brought (12 for bodily harm or grievous bodily harm to a police officer; one against a prison officer, and one against a transit officer approved by police prosecutions central division). At the time of the media release, five offenders were in remand awaiting trial; one offender was subject to a bench warrant; one case was downgraded by the DPP to assault public officer and the other two cases were discontinued. Below is a list of the offences and sentences of five offenders who were found guilty of, or pleaded guilty under the mandatory minimum sentencing laws:
- Female offender at Kelmscott Train Station bit right arm of a female transit officer causing swelling, bruising and bleeding. The victim was conveyed to hospital for treatment and underwent a blood test due to bodily fluid exposure. Imprisonment nine months
- Female offender in Rangeway punched a male police officer to the right side of the face causing immediate pain and swelling. The victim required analgesics and pain-killing injection. Imprisonment nine months
- Male offender on Roe Highway punched a police officer to the mouth causing a large split in the lower lip, which required five stitches, as well as swelling and soreness to the area of his jaw. Imprisonment six months, one day
- Female offender at Broome Police Station struck a police officer to the face causing bleeding and swelling to the nose. Medical treatment was sought for possible broken nose. Imprisonment six months, one day
- Female offender in Northbridge punched female police officer to the face causing sustained fractures to left cheekbone, severe soreness in the face with suspected dental complications. Victim will require ongoing treatment. Awaiting sentencing.
Fact Check then takes our mandatory minimum tour to the United States.
Fact Check example: “In 1992, mandatory sentences were introduced for firearm offences in Michigan, Florida and Pennsylvania.”
Hello, Fact Checkers! Anyone home? The Northwestern School of Law study cited was published in 1992. It is based on differing gun laws introduced in 1977 (Michigan, two-year sentence for the possession of a firearm while committing any felony); 1975 (Florida, three-year sentence for persons convicted of committing any of 12 specified felonies while in possession of a firearm), and 1982 (Pennsylvania, five-year minimum sentence for any of seven violent crimes if (1) the offense was committed with visible possession of a firearm; (2) the defendant had been convicted of the same offense within the past seven years; or (3) the crime was committed in or near public transportation facilities).
The authors’ methodology for concluding that mandatory minimum sentencing has reduced gun crime in the three States has been widely criticised. When evaluating data from the sample cities – Detroit (MI); Jacksonville, Tampa, Miami (FL), Philadelphia and Pittsburgh (PA) – specifically, the authors found the following:
- A statistically significant decrease in the number of gun homicides in Detroit, but no significant change in other offenses. We concluded from this study that the results best fit a model in which the mandatory sentencing law did not have a preventive effect on crime.
- Significant decreases in Tampa gun homicides and Jacksonville gun assaults. Unarmed robberies increased significantly in Tampa and Miami, but armed robberies did not change. In addition, there was a significant increase in Tampa gun assaults. Again, we concluded that the results did not support a preventive effect model.
- Statistically significant decreases in gun homicides in both Pittsburgh and Philadelphia. The decrease in Philadelphia gun homi-cides was mirrored by a reduction in non-gun homicides, however, and there was no change in gun assaults or robberies in the state of Pennsylvania. Alone, the Pennsylvania estimates do not strongly challenge the conclusion that the statutes have no preventive effect.
McDowall, Loftin and Wiersema went on to standardise & pool the data they had collected over relatively short & differing post-intervention periods & offences, ranging from twenty-four months for Detroit to sixty-three months for assaults and robberies in the Florida cities.
BADA BING: THEY WERE ABLE TO REACH THE CONCLUSION THAT MANDATORY MINIMUMS WORK IN DECREASING GUN CRIME BY ADDING THE FIGURES TOGETHER.
Venturing out on a limb, the decreases in gun homicides might correlate to advances in medical intervention saving the lives of more gunshot victims in the period between the introduction of mandatory sentencing. Maybe the results are skewed by the short-term nature of the periods studied. Maybe they don’t take into account external factors such as a spike in poverty in Detroit, homelessness & job insecurity, or drug-related crime. Have a look at some more recent state-by-state data: gun homicides are up in Michigan and Pennsylvania, and comprised almost 75 per cent of all homicides in both States. The rate of robberies with firearms was above 50 percent in both States. The rate of assaults using a firearm were an incredible 86 per cent in Michigan (yep, people are shooting each other, but not dying), and 39 per cent in Pennsylvania. As Tony Abbott would say, “baddies” are overwhelmingly the victims: in Philadelphia, the percentage of those killed in gun homicides that had prior criminal records increased from 73 per cent in 1985 to 93 per cent in 1996. Detroit – declared America’s most dangerous city by Forbes magazine four years’ running – is bankrupt. In 2010, 32 children died in gun violence. Of the 500 child homicide deaths in Detroit since 2000, a Detroit News investigation claimed most were gun-related. This data set (from the FBI Uniform Crime Reports) does not contain information from Florida (or Alabama, for that matter). I tried the Florida Department of Law Enforcement, but the website didn’t want to play ball, but as these reports show, while the overall homicide rate in Florida is falling, gun murders are increasing. Between 2007 and 2010, more than 9,000 people died in gun-related violence in the State, which has a population of around 19 million and three times as many gun dealers than post offices.
Fact Check example: “California introduced a three-strikes policy in 1994, which imposed a life sentence for a list of serious and minor crimes if the offender had two previous convictions for crimes defined as serious or violent.” Fact Check refers to a 2007 study to reach its conclusion that the three-strikes policy resulted in a measurable decrease in crime:
“Researchers at George Mason University in Virginia found arrest rates were 17 to 20 per cent lower for the group of offenders convicted of two-strike eligible offences, compared to those convicted of one-strike eligible offences. The authors concluded this indicated that the three-strikes policy was deterring recidivists from committing crimes.”
None of this research (or ABC’s Fact Check) take into account whether mandatory minimums are the best way of curbing crime.
Firstly, mandatory minimums are inconsistently applied: perhaps the most infamous of California’s ‘three strikes’ cases involved Jerry Dewayne Williams, who was sentenced to 25 years in prison just months after the laws were passed. His ‘third strike’? Stealing a slice of pepperoni pizza. In 2010, the Los Angeles Times reported that Williams went back to court following a California Supreme Court ruling that judges could reduce life sentences handed out to ‘third strikers’ by overlooking previous convictions, and was released in 1999. While he claims to ‘live on eggshells’, Williams has skated on incredibly thin ice since his release, with prosecutors not treating a 2003 felony charge of making a criminal threat as a third strikes. Barred from leaving the county following his release from 17 days’ jail, he moved and triggered an arrest warrant which remains active. Since moving, he has been arrested once for being drunk in public but was released without charge.
Secondly, mandatory minimums are not cost-effective: there are increased costs in the court system as more defendants contest charges to try to avoid mandatory penalties where they otherwise may have pleaded guilty. In 1999, Nicholas Cowdery estimated the cost of keep a prisoner imprisoned for a year at about $60,000 and approximately $200,000 to build a new cell. That money could be spent on crime prevention by investing in improving education, pre-school care and health care, especially if targeted at those at risk of offending.
Finally, mandatory minimums do not act as a deterrent (generally or specifically), given that deterrence rests on the assumption that people are rational actors who do a cost/benefit analysis before committing a crime. Much crime, especially violent crime, is impulsive. Mandatory minimums are of little deterrence to the poor & minority groups, leading to over-representation in custody and mandatory minimum sentences applied following relatively minor crimes. In the NT in 1999, an Aboriginal man was sentenced to jail for a year for stealing $23 worth of biscuits & cordial from a Groote Eylandt mine site smoko room (his two previous convictions were for property crimes). In California, about 40 percent of three-strikers are either mentally retarded or mentally ill, & also likely to be black. Blacks make up seven percent of the population, 28 percent of the prison population and 45 percent of the three-strikers (source: Rolling Stone, 27 March 2013. If this compelling Matt Taibbi article does not make you decry mandatory minimum sentences, you should be sentenced to a week in 3rd class to work on reading comprehension).
Fact Check’s final piece of evidence on the ‘overreach’ claim is this 2007 study by the Vera Institute of Justice in New York, which examined the effectiveness of incapacitation (i.e. depriving criminals of the opportunity to offend under all forms of sentencing, mandatory or otherwise). The study estimated that a 10 per cent increase in incarceration rates is associated with a 2 to 4 per cent drop in crime. Fact Check leaves it there. The report goes on to state:
“… the most sophisticated analyses generally agree that increased incarceration rates have some effect on reducing crime, but the scope of that impact is limited… moreover, analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve.“
Fact Check sought expert opinion on incapacitation from the chair of the Victorian Sentencing Advisory Council, Arie Freiberg, (incapacitation); on rates of crime from Don Weatherburn, director of the NSW Bureau of Crime Statistics (and Research) and from Professor Geraldine Mackenzie, Dean of the Faculty of Law at Bond University (deterrence). Their verdict? “…there is not much evidence that mandatory sentencing reduces the level of crime being committed, but there is some.”
My verdict? The ABC published Boulten’s ‘none, nyet, nada evidence’ remarks on 23 January. The Fact Check unit chose to examine those words and published its response yesterday. Given the time that elapsed, surely it should have provided further context, such as remarks made by Cowdery in the same piece – (mandatory minimum sentencing) is ‘naive and not supported by research and a lot of work that’s been done in that area’ and/or remarks & statements made by Boulten and others in the intervening period. Yesterday, the Newcastle Herald published an excerpt from an address to Newcastle Court for the opening of the law term by Peter Cummings SC, president of the Newcastle Bar Association as an opinion piece. Cummings SC joined Boulten SC, NSW Supreme Court Chief Justice Tom Bathurst and former Director of Public Prosecutions Nicholas Cowdery in slamming the introduction of ‘one punch’ laws or mandatory minimum sentences.
Fact Check states on its website that its ‘focus will be on statements likely to influence the public debate, rather than minor errors or gotcha moments involving trivial gaffes. Opinions and exaggerated rhetoric will be avoided. Our aim is to be 100 per cent accurate. But if a mistake is made, the item in question will be corrected and the verdict revised. Statements can be both right and wrong, depending on when they were said. Determinations are therefore based on evidence available at the time’.
On these criteria, was Boulten’s claim the most important made in the highly contentious and much-publicised issue of mandatory minimum sentences to be introduced in NSW? Is his voice more likely to influence public debate than the Premier of NSW? Fact Check has not checked other claims on the NSW mandatory minimum sentencing debate, even the claim that Sydney is in the grip of an ‘epidemic of street violence‘.
Yes, pedants: Boulten SC should have replaced ‘none’ with ‘scant’, ‘little’, ‘minimal’, ‘limited’, ‘negligible’, or ‘insufficient’; but in ignoring the content & context of his entire quote and the evidence it used to arrive at its ‘overreach’ verdict, this ‘fact check’ is an unsatisfying waste of bandwidth that leads to more questions than it answers.
Disclosure: I applied for a job as a fact checker with the ABC. I failed (not interviewed). Related: I have the time to write 3,000 words on fact checking.
You need to trust me that although 
The Referral 
