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picture of Professor Mirko Bagaric

Professor Mirko Bagaric

Mirko Bagaric is an Alfred Deakin Professor and Chair in Law at Deakin Law School. His main work is in the area of punishment and sentencing. He has also written extensively in migration and refugee law and human rights law. His articles have been cited in over 50 court judgments, including the High Court of Australia and superior courts in Canada, Singapore, New Zealand and Ireland.

This article was originally published in The Guardian on 5 April 2016.

Sentencing criminals involves the deliberate infliction of suffering and pain. There are many ways of determining how much hardship should be inflicted on any particular offender. Australia and the United States are at ends of the respective spectrums. The US has a largely prescriptive guideline system, while in Australia judges have an almost unfettered discretion in deciding how to punish.

Much ink has been spilt on which system is preferable. This abstract issue is trite. Both systems lead to appalling outcomes. In the US and Australia, imprisonment is increasingly being used to cause additional suffering to the most disadvantaged groups in the community. The level of over-representation of these groups in prison in both the US and Australia is striking to the point of being a cause of national shame.

Indigenous people living in Australia in 2016 are 13 times more likely than non-Indigenous Australians to be imprisoned. African Americans are six times more likely to be imprisoned than other Americans. The US incarceration rate is 700 per 100,000 adults, whereas it is 200 per 100,000 in Australia; meaning that both systems share the morally repugnant commonality of imprisoning their most disadvantaged groups at a rate of over 2,000 per 100,000 people.

The level of disadvantage of Indigenous Australians and African Americans is strikingly similar. Both groups have considerably lower life expectancies than the general community (by at least four years); lower high school completion rates (by more than 30%); average income levels at only 70% of the respective national levels and threefold higher rates of poverty.

It is a worldwide phenomenon that the poor commit more crime. Disadvantage leads to frustration and sometimes rebellion and less prudent ways of responding to challenges. Yet, the rate of increased offending by African American and Indigenous Australians is not even a fraction of their higher incarceration levels. The over-representation of these groups in prison is largely due to ostensibly racially neutral but substantively discriminatory sentencing principles and subconscious bias that exists in sentencing determinations.

Thankfully, the possibility of at least a partial solution exists. There are many considerations that are relevant to the setting of a criminal sanction. In both the US and Australia the two main ones are the seriousness of the crime and the offender’s prior criminal history. Depending on one’s 'priors'the penalty for the same offence can often mean the difference between a financial penalty and a term in imprisonment. A first offender found guilty of car theft will get a small fine; commit the same offence with 20 prior convictions and you are almost guaranteed a stint in prison.

The main problem faced by many Indigenous Australians and African American offenders is not that they commit a disproportionately higher number of serious offences. Rather, given that they commit more (usually) minor offences, they are more likely to have prior convictions and are therefore more heavily punished than other offenders who have committed the same offence.

This is grossly unfair and is in fact discriminatory – Indigenous Australians and African Americans have a disproportionately high number of prior convictions and, on the basis of this irrelevant consideration, they receive more severe sanctions.

Each time a person is sentenced for an offence, they should be principally sentenced for that offence only, not for what they have done in the past – they have already been punished for this. To do otherwise is involves either punishing a person for their supposed 'character' (which is far too nebulous a commodity to justify inflicting pain on a person through the process of criminal sanctions) or double punishment.

It may 'feel' right to punish the first time burglar less heavily than the offender who has committed his 10th burglary, however, imposing a sanction that affects much of what is meaningful to a person’s life requires a more substantive justification than a mere impulse or urge to do so. The weight accorded to prior convictions in both systems should be considerably reduced, especially given that empirical data shows that in relation to serious forms of offending, prior convictions are a poor predictor of future offending.

The second reform that is necessary is to confer a sentencing discount to Indigenous Australian and African American offenders. This recognises the profound link between economic and social deprivation and crime. It would also serve to offset the subconscious sentencing bias that these offenders experience. Even in supposedly race neutral guideline sentencing systems, studies show that African Americans are subjected to sanctions which are 5% to 12% more severe than other offenders.

There is one exception to this proposed discount. In relation to serious sexual and violent offences, the devastating effect that these offences often have on the lives of victims, plus the fact that all people (no matter how poor) are aware of the heinous nature of such crime, militates against a sentencing discount for these offences.

The calculus is differently weighted regarding other forms of offences, such as drug, property and migration offences. Once the suffering associated with violent and sexual injuries is removed from the equation, the pain and burden of poverty is paramount and should be reflected in a sentencing reduction for the disadvantaged who commit such crimes.

Disregarding prior convictions and conferring a significant sentencing discount will not cure the ills that make it more likely that Indigenous and African American offenders will commit crime. These groups may still appear in court more frequently than other offenders, but their sentences will be determined on the basis of the instant offence, not according to other (irrelevant) factors.

Sentences decided in this way will often mean the difference between imprisonment and a fine, for Indigenous Australians and African Americans – and indeed many other Australians and Americans with criminal records.

This article was originally published in The Guardian and is based on a presentation delivered by Mirko Bagaric on race and sentencing at the Harvard Law School in late March.