Impact of Mandatory Sentencing Laws - Report Example

Impact of Mandatory Sentencing Laws for Offences of Home Burglary (“Three Strikes Laws”) on Indigenous Australians Name: Course: Tutor’s Name: Date: Introduction In the year 1996, the Western Australia government introduced mandatory sentencing laws for offences of home burglary related cases, which were commonly referred to as “three strikes”. The set of laws, which was proclaimed on 14 November of that year, was designed to protect members of the Western Australia community against violation of their homes (Yeats 1997, 370). Precisely, the laws were meant to ensure that criminals in burglary cases were incapacitated for a longer time. According to the laws, the punishment for people guilty of burglary crimes for the third time would a minimum of twelve months in custody (Yeats 1997, 370). The Act applied across all ages- both adult and juvenile offenders even as young as ten years provided it could be substantiated that the minor was in a position to know that he or she ought not to commit the offence (Yeats 1997, 371). According to Neal and Bagaric (2002, 280), the three strikes law in Australia was an epitome of criminal punishment structures around the world that punish socially deprived people disproportionately since it led to a gross overrepresentation of indigenous Australians in jails. To illustrate this, there were two occasions when judges sentenced very young habitual burglars to intensive law supervision just because they qualified for the sentence (Yeats 1997, 372). Moreover, the judges stipulated that any violation by the minors of the supervision requirements would lead to a twelve-month detention (Yeats 1997, 372). Further punishment mechanisms included a requirement that young people sentenced under the three strikes laws be send to Perth and be forced to stay away from their families and culture for at least six months (Neal and Bagaric 2002, 281). This paper will discuss the aforementioned issues and further illustrate how indigenous Australians were affected by the three strikes laws regarding home burglary crimes. Description of the mandatory sentencing laws The three strikes laws in Western Australia were an embodiment of how the country’s criminal justice system eroded the essence of protection of basic human rights. This is because these laws removed judicial sentencing prudence by requiring that courts impose minimum sentences with regard to imprisonment or detention of people found guilty of certain offences. In addition, the laws specifically discriminated against the indigenous people by putting much focus on petty offences that were highly likely to be committed by the indigenous people (Chakma, Jensen and International Work Group for Indigenous Affairs 2001, 59). The 1996 laws were introduced through amendments done to the criminal code 1913 of Western Australia (Chakma, Jensen and International Work Group for Indigenous Affairs 2001, 59). The amendments provide that when offenders are convicted for the third time or more for an offence related to home burglary, they should be subjected to a minimum of twelve-month detention or imprisonment. This was referred to as the “three strikes and you are in” legislation (Chakma, Jensen and International Work Group for Indigenous Affairs 2001, 59). Although the laws contain some provisions for offenders being released under supervision, they do not allow for a right of appeal if the stipulated punishment or sentence matches with the minimum sentence permitted. The three strikes laws are clearly in violation of Article 14(5) of the International Covenant on Civil and Political Rights (ICCPR) which has a provision for the right to appeal against a sentence and also states that any sentence should be subject to review by a higher level tribunal as stipulated in the law (Chakma, Jensen and International Work Group for Indigenous Affairs 2001, 61). In addition to the fact that the 1996 laws were grossly over-punitive, they were also insufficient. The changes made to the laws provided no concession to juveniles save for the fact that they provided mechanisms for detaining them in “prescribed detention centres” rather than prisons. But in spite of their seemingly racially discriminative nature, the three strikes laws were praised by law specialists such as Richard Harding for being more effective than the Crimes Sentencing Act of 1992, which had failed to lower overall crime, particularly repeat home burglary crimes (Tonry and Frase 2001, 42). The racially discriminative nature of three strikes laws was depicted by the manner in which the laws affected offenders, who were mostly indigenous people as mentioned earlier. According to a review by the Committee on the Elimination of Racial Discrimination (CERD), the Western Australia laws depicted the federal government’s unwillingness to comply with the obligations stipulated in the ICCPR (O'Neill, Rice and Douglas 2004, 175). In addition, CERD concluded that the Australian government showed ineffectiveness in creating programs to reduce overrepresentation of the indigenous people in the county’s criminal justice system (O'Neill, Rice and Douglas 2004, 175-6). This problem was exacerbated by the government’s failure to provide an interpreter to facilitate during proceedings involving indigenous people. CERD also noted that by implementing the three strikes laws, the Western Australia government continued to segregate and castigate the historically disadvantaged indigenous people of Australia (Chakma, Jensen and International Work Group for Indigenous Affairs 2001, 61). As discussed in the following sections, the three strikes laws in Western Australia subjected indigenous people to a lot of suffering. This was particularly caused by the separation of juveniles from their families and the wider indigenous communities. Impact of the “three strikes” laws After the implementation of the three strikes laws, indigenous Australians and juveniles in particular were adversely affected by Section 401 (s 401) of the Australian law, which provides anti-avoidance measures to deal with indigenous people (Plastrier 2005, 1). Evidence that juveniles were most affected is depicted by the fact that children comprised 80 percent of offenders in cases categorised under the compulsory sentencing laws in Western Australia’s Children’s Court in the period between February 1997 and May of the following year (Plastrier 2005, 1). In a period of four months after the amendment of s 401, many children (mostly indigenous) were subjected to the mandatory laws, the average being seven children per month. According to Plastrier (2005, 2), a proportion as high as 93 percent of all cases involving juveniles from non-metropolitan areas were related to indigenous children. Additionally, Australia’s Department of Corrective Services reported that 34 per cent of inmates in Western Australia were indigenous (Plastrier 2005, 2). Further, it was noted that the rate at which indigenous Australians were sentenced to imprisonment was about 21.7 times higher than the level of imprisonment of the non-indigenous Australian population (Plastrier 2005, 3). This suggests that the mandatory sentencing laws were discriminative against indigenous people. The ‘three strikes’ laws are based on the assumption that all home burglary offences and all offenders in their various conditions are the same. This incorrect presupposition fails to allow courts to exercise prudence, leading to unfair sentences against offenders. In view of this, all groups of indigenous Australians were affected by the legislation as discussed in the following sections. Juveniles The following case studies show how indigenous juvenile Australians were discriminated against by the “three strikes laws”, which in particular contravened Article 1(1) of CERD that defines racial discrimination (Plastrier 2005, 4). Case 1: A 12-year-old boy The 12 year boy faced three charges of burglary, one of attempted stealing and another of a breach of bail. At home, the boy had serious problems in terms of welfare, poor education and indulging in substance abuse (ALSWA and State Policy Centre WA 2009). In spite of these problems, he had beforehand completed over half of the mandatory community work and had attended two out of the six counselling sessions as required by the youth community order (ALSWA and State Policy Centre WA 2009). Regrettably, the boy was sentenced to detention for twelve months, which was too hefty with reference to his condition and the correctional punishment he had already received. Case 2: A 17-year-old boy According to ALSWA and State Policy Centre WA (2009), the 17-year-old boy faced seven charges, one being of home burglary that was counted as his third strike. An amazing aspect of the case is that the boy had been drinking with the complainant, and was accused of stealing the complainant’s shoes (though he took them because he did not have any pair) (ALSWA and State Policy Centre WA 2009). In addition, this event occurred at a time when the boy’s parents had separated such that he did not have stable accommodation. Although the boy later received stable accommodation from his mother, he was sentenced to twelve months detention so that he could not sojourn with her (ALSWA and State Policy Centre WA 2009). A fairer sentence would have been appropriate since even the judge pronouncing the sentence admitted that the sentence was based on legislation but a milder sentence would have been more apposite. The above cases are just some of the examples of cases in which indigenous people of Western Australia, particularly juveniles were subjected to extremely harsh sentences that were dictated by legislation rather than discretion of judges. It is therefore evident that the juveniles were subjected to emotional torture due to separation from their families for at least twelve months. Additionally, the juveniles were subjected to harsh conditions in detention camps located in Perth (Tonry and Frase 2001, 43). Families Apart from affecting juveniles detained mostly at Perth, the mandatory sentencing laws also affected the juveniles’ families due to separation. It was mandatory that all children involved in burglary crimes be detained at Perth, far away from their families and homes. In addition, since most of the juveniles apprehended for burglary crimes originated from either the Pilbara or Kimberly areas (Carter et al 2007, 23), the trial at Perth meant that it would be practically not possible for the juveniles’ families to be present when the sentences were passed. Hence, the families, especially women, were tormented by not being allowed to see their children during trial and for having their children detained without discretion. In addition to separation of families, there was another requirement that the cases for study under “three strikes” be dealt with only by the president or a senior judge at the Perth Children’s Court (Carter et al 2007, 23). In view of this, it is evident that juveniles from all regional areas had to be taken to Perth (mostly due to the likely sentence of twelve-month detention) and were therefore separated from their families even before the day of trial. Further, there were no options for detaining “third strikers” elsewhere, implying that all juveniles would be detained at Perth, miles away from their families. Along this line, it was highly unlikely that the juveniles’ parents or relatives would ever visit them while in detention due to the distance (and high travelling costs) involved and further restrictions. This subjected both the juveniles and their families to mental trauma (Carter et al 2007, 23). General indigenous communities As a result of the mandatory sentencing laws, the indigenous people were grossly overrepresented in the prisons and detention camps, especially in Perth. This led to a decline in the active segment of the indigenous population since most of the people in detention were youths who could help the ageing society. There were also cases of youths committing suicide due to frustration (De Costa 2006, 159). The period spent by detainees in Perth affected their other aspects of life such as the right to education and freedom, which in turn meant that the indigenous people’s future remained uncertain with regard to the high number of youths held in detention and other correctional facilities (De Costa 2006, 159). The worst point of this matter is that the mandatory sentencing laws did not provide any avenue for reforms since the twelve-month detention applied to the juveniles irrespective of the magnitude of their crimes. This created fear among all people that their children could be arrested and detained at will (De Costa 2006, 159). Conclusion The mandatory sentencing laws commonly referred to as “three strikes” laws were aimed at incapacitating criminals of burglary for a longer time. However, their implementation resulted in alienation of indigenous Australians, mostly juveniles, as they had a higher tendency of committing burglary crimes. As a result, the Western Australian government violated the conditions stated in ICCPR and CERD, leading to a gross overrepresentation of indigenous people in prisons and detention. Juveniles suffered harassment and separation from their families and the families could not see them for a long time. Generally, the indigenous community suffered a higher rate of imprisonment, which destabilised their culture and unity. References ALSWA and State Policy Centre WA. 2009. Submission to the Senate Inquiry into the Human Rights (Mandatory Sentencing for Property Offence) Bill 2000 (Unpublished report). Carter, Terry; L. Dunston, R. Chau, and V.Jealous. 2007. Perth & Western Australia. Footscray, Melbourne: Lonely Planet. Chakma, Suhas, M. Jensen, and International Work Group for Indigenous Affairs. 2001. Racism against indigenous peoples. New York: IWGIA. De Costa, Ravindra Noel J. 2006. A higher authority: indigenous transnationalism and Australia. New South Wales: UNSW Press. Neal, Luke, and M. Bagaric. 2002. After three strikes s-the continued discriminatory impact of the sentencing system against indigenous Australians: suggested reform, Criminal law journal, vol. 26, no. 5, pp. 279-292. O'Neill, Nick, S. Rice, and R. Douglas. 2004. Retreat from injustice: human rights law in Australia. Melbourne: Federation Press. Plastrier, Brett Le. 2005. Western Australia’s Mandatory Sentencing Laws and Australia’s International Legal Obligations. Dialogue, 3(2): 1-15 Tonry, Michael H., and Frase, R. S. 2001. Sentencing and sanctions in western countries. Oxford: Oxford University Press. Yeats, M.A. 1997. "Three Strikes" and Restorative Justice: Dealing With Young Repeat Burglars in Western Australia. Criminal Law Forum, 8 (3):369-385. Read More