Criminal Justice Can Never Be An Arm Of The Welfare State

Written by:
17 February 2017
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Crime is caused by people who decide to commit crimes. It is not caused by society. The criminal justice system exists to punish criminals and protect the community, not to fix societal ills.

This is a very simple principle. But it bears restating because it seems to have eluded Rob Hulls in his commentary, published in these pages last week, on our criminal justice report.

As Hulls correctly notes, there are a variety of problems in Australia’s criminal justice system upon which people from across the political spectrum can agree. Chief among them is the plain truth that costs have increased over the past 10 years while results, in terms of reoffending and, more recently, crime, have stagnated or gotten worse.

There is therefore a strong case for rationalising the criminal justice system towards better safeguarding individuals, families, and businesses. It is very welcome to find that we are united in our determination to address this very important issue.

But there seems to be a fundamental disagreement about what motivates criminal justice reform. For example, victims are entirely absent from Hulls’s analysis. Instead, he seems to believe that the criminal justice system exists to improve the lot of criminals. This is at odds with a common sense understanding of criminal justice.

Individuals make choices and they can be held to account for those choices. Some people choose to commit crime. Regardless of the circumstances of that choice, it is fair and right to punish them for it. This is how we keep the community safe, which is the basic purpose of the criminal law.

It is in this context that investing in the police makes sense. More police, and more targeted policing, increases the chance of criminals being caught.

This is a cost-effective way of deterring people from committing crime. And it is especially needed given that we have already exhausted the deterrent effect of longer sentences – studies show that further increases from our current position are unlikely to deter crime very much.

Between 2010-11 and 2014-15, however, the proportion of criminal justice spending on police fell from 67.5 per cent to 66.5 per cent, while that spent on prisons increased from 22.3 per cent to 24.1 per cent.

It is true that more effective policing will likely lead to more arrests. But it would be bizarre to argue that catching more criminals would be a negative for society. The question is not whether it is unfair to deter and intercept criminals, the question is what is the best way to punish those who break the law.

For this reason, there should be punishment reform for non-violent criminals. Violent criminals must be locked up to protect the community. But for others, punishment does not have to mean prison.

In some cases, criminals can be deterred and the community kept safe with a punishment mix that includes home detention and community corrections as well as restitution orders and fines.

It is true that this approach can yield better results for crime and recidivism. We believe this logic should be applied to all classes of non-violent offending.

There are no compelling reasons for treating white-collar criminals different from other non-violent offenders. With this focus on low-risk offenders, we can reduce the rapid growth of the prison population. This will lead to savings that can then be used to fund other parts of the criminal justice system, like the police.

This idea of redirecting funds within the criminal justice system to improve long-term results is known as justice reinvestment. But how these funds are redirected is a matter of contention.

The experience of the US demonstrates that criminal justice reform can win the support of a broad swath of the political class and the public if it is predicated on conservative principles.

Justice reinvestment must be defined narrowly, in line with the fundamental bases of the criminal justice system: personal responsibility, just punishment, and community safety. This means making criminal justice more efficient without compromising on its moral premises. It does not mean supplementing the ample resources of the criminal justice system or removing those resources to fund social engineering adventurism.

In the absence of these principles, the system would simply be another arm of the welfare state. The so-called social justice approach shifts blame for criminality from criminals to a society supposedly characterised by systemic oppression.

In doing so, it erases victims and the harm that criminals do to the community. And ultimately, this means obliterating the concept of criminal justice itself.

The problems of our criminal justice system are well-known and widely agreed-upon. Fixing them will involve punishment reform and a prominent role for the police. And any attempt to reform criminal justice by disavowing personal responsibility and punishment is doomed to fail.


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