Fresh Thinking and Common Sense

9th February 2010

It is depressingly familiar that recent concern about violent crime has focussed on imposing longer or mandatory prisons sentences rather than trying to understand why aspects of our current system don’t work as well as they should.

One common target of public concern has been the problem of crimes committed on bail or while convicted offenders are otherwise at large, and there is clearly a problem with some groups of persistent offenders racking up a long list of charges while awaiting trial.

The knee-jerk reaction is to make it harder to get bail, despite all of the associated problems of large-scale pre-trial detention. But if we probe a little deeper at the problem, there are fresh and promising ideas based on growing evidence about what actually influences individuals’ actions.

Jeffrey Rosen, law professor at George Washington University, writes in the the New York Times:

“Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain.

"Recent work in behavioural economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is.”

A recent development in Hawaii suggests that when a judicial system delivers swift and direct consequences to offending behaviour, confidence and respect in that system increases. This is a common sense approach that emphasises individual responsibility, the legitimacy and consistency of the system, with the result that you need less imprisonment to achieve less crime.

While the Hawaii initiative addresses a particular American problem of parole violations, there is a clear parallel to how our system deals with minor offending, particularly by young people. Research recently carried out for the Office of the Minister for Children and Youth Affairs by Dr. Mairead Seymour and Dr. Michelle Butler identified a number of problems with how bail operates for young offenders, with long delays before trial being identified as a key problem.

If a teenager is in trouble, the longer the delay before the State responds to that problem, the more likely it is that the situation will deteriorate. Following this analysis, the Irish Youth Justice Service has now initiated a case management system within targeted areas of Dublin to ensure that young people before the courts have their cases dealt with more quickly.

The point of all this: a criminal justice system is about human behaviour and trying to change it. Reform of that system must be based on the best evidence of what individuals respond to, and it is practical issues such as court efficiency or bail supervision that promise better results than a forlorn hope that tougher sentence will have any beneficial effects.