Law and order, evidence and values

by Professor Russell Hogg

A change of government normally signals (or we would like to think so) changes in policy direction in key areas. Criminologists, like other academics, are usually quick to offer advice to new incumbents, perhaps more so because of the overheated climate that has come to surround the crime issue. A familiar opening gambit is to urge a new government to base law and order policies on evidence rather than populism. Whilst it would be churlish to disagree outright with such advice there is good reason to suggest that it is radically incomplete. There is also the danger that ‘evidence-based policy’ (EBP) may become just another mantra to which politicians pay occasional lip service whilst feeling compelled the rest of the time to retreat into populist realpolitik.

But the major problem with invoking EBP in relation to law and order is that it vacates an essential, legitimate and urgent part of the debate – that relating to moral, legal and political values. These matters, rather than the evidence, may be what lies at the heart of crime and punishment issues, and in turn helps to explain why they excite popular passions.

It is also likely that many criminologists object to mandatory sentencing, preventive detention and other draconian populist measures (not to mention the death penalty), not because (or not only because) they are ineffective but because they offend their basic sense of justice. And when it comes to marshalling the evidence, criminologists doubtless cannot entirely escape the tendency to ‘confirmation bias’: like others, they are often guided by fundamental moral intuitions that lead them to seek out and interpret evidence confirming what they already think and feel.

This simply underlines the fact that the most important questions posed by crime and punishment are not susceptible to resolution based on objective, scientific evidence alone and that appeals to values and emotions will always have an unavoidable role in these debates and in the politics of law and order. Even apparently straightforward questions like how we identify and understand crime trends cannot be disentangled from such appeals. It also follows that policy debates involve much more than picking and choosing amongst options based on a utilitarian, cost/benefit analysis. Different moral belief systems and conceptions of justice are also at play. Those in politics, academic life and elsewhere wanting to influence law and order policy must therefore also engage at this level; they must offer convincing moral accounts and narratives rather than simply parading the latest research results.

Two of the issues that currently preoccupy the Australian Prime Minister are the terrorist threat and the imminent execution of two young Australian men in Indonesia. On the first, the PM has amongst other things threatened to revoke the citizenship of Australians involved in terrorism. This is more symbolic than real in its implications. Australians who are convicted and gaoled for serious criminal offences retain formal citizenship, but in all manner of practical ways their status as citizens (as full members of the Australian community) is seriously diminished.

It is interesting therefore to juxtapose the other issue preoccupying the PM at the moment. Tony Abbott, along with other political leaders and prominent Australians across the political spectrum, has been energetically lobbying the Indonesian President to show clemency in the case of the two Australian drug dealers awaiting the cruellest of fates in the most primitive of legal and political rituals. The President is urged to look closely at the individual circumstances of each of the men, to recognize the capacity of individuals to change and to take account of who they are now and not just what they did in the past, to acknowledge the power of redemption and to respect the humanity of these men.

Many in Australia see the situation as a massive stain on Indonesia’s young democracy. Yet, excepting that Australia has abolished the death penalty (and admittedly this is no minor difference), it is rarely the case that questions of crime and punishment and how we treat offenders, are regarded by political leaders as touching the quality of democracy in Australia. Yet the idea of change, of redemption and of the second chance; the recognition that we are all mixes of different (both good and bad) traits and potentialities; the notion of a political and moral community that is inclusive and accommodating of all its members in all their diversity, and even in their waywardness: these are profoundly democratic values. They may face one of their stiffest tests when it comes to those who have committed serious crimes, but as others in the past, from Winston Churchill to Nelson Mandela, have reminded us, this test is one as to the level of civilization we have managed to attain and maintain.

Why is it therefore that in these matters we are only reminded of what it means to be an Australian citizen when young Australians are convicted of serious criminal offences in another country? Back here, although we don’t execute serious offenders, they are more likely to be depicted in everyday public and political conversation as irredeemable and as having forfeited any regard for their personal circumstances, their humanity and their rights. With the consequence that mandatory sentencing, preventive detention and the like are considered increasingly necessary, measures which, although they let live, fly directly in the face of the sort of moral and emotional appeals our leaders are currently making to the Indonesian President.

Perhaps this is an essential part of the debate we need to also promote when newly elected governments are contemplating their law and order policies.