Post on 01-Feb-2023
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The Discrepancy between Empirical Knowledge and Crime Policy
Globally, evidence-based risk assessment tools such as
the Level of Service Inventory-Revised (LSI-R; Andrews &
Bonta, 1995) and the Adult Actuarial Risk Instrument (AARI;
Maller & Lane, 2002) are continuously being developed and
refined to assist criminal justice institutes with the
management of offenders (Simon, 2005). These tools are based
on data collected over a certain point in time, which is
subsequently analysed according to particular offender
variables that correlate with recidivism risk (Andrews &
Bonta, 1995). Evidence-based risk assessment tools arose from
the need for administrators of criminal justice to predict,
with a reasonable degree of accuracy, whether recidivism (to
the offender and the community) was likely once an individual
was released from custody (Baird, Heinz, & Bemus, 1979). The
need was realised in the 1970’s after a number of court
challenges to the validity of laws and procedures under which
these persons were held in custody as ‘dangerous’ (Simon,
2005) were successful. This caused an academic backlash, and
prompted calls for existing procedures – specifically the use
of unstructured clinical judgements – to be discontinued (e.g.
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Ennis & Litwack, 1974; Monahan, 1981). Academics also began to
raise questions about an issue that remains fundamental to
criminal justice some forty years later: should criminal
justice authorities or officers confine individuals on the
basis of their ‘future dangerousness’ (i.e. risk) rather than
because criminal punishment is deserved? (e.g. Edgely, 2007;
Robinson, 2001; Simon, 2005).
Presently, risk assessment is more important than ever to
criminal justice, given the constant political demand for
strategies to prevent crime (Ogloff & Davis, 2005). States are
constantly enacting new laws that either create new offences
(e.g. ‘one-punch’ laws) or that provide for the ‘treatment’ of
certain serious offenders (Edgely, 2007; Ogloff & Davis, 2005;
Robinson, 2001; Simon, 2005). Andrews and Bonta (1994) assert
that there are two types of risk factors, namely, static
(fixed) and dynamic. Dynamic risk factors are also referred to
as ‘criminogenic needs’ (Andrews & Bonta, 2003), and have been
identified as among the strongest predictors for recidivism
(Andrews et al., 1990a; Bonta, 1989). Some examples of
‘criminogenic needs’ are: 1) the offender’s family
relationships; 2) education and employment; 3) substance
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abuse; and 4) emotional stability (mental health) (Gendreau,
Little, & Goggin, 1996). Ideally, legislation should recognise
these domains of risk and need, and be structured so that this
empirical understanding in integrated into decisions regarding
at-risk offenders, and that ‘what works’ according to science,
subsequently works in relation to the law. However, and as
will be discussed in several paragraphs time, the makers of
these laws consistently fail to utilise the established
principles of risk assessment, and subsequently, such
legislation is often ambiguous and unsystematic, not to
mention unjust (Ogloff & Davis, 2005).
Another concept to feature in the discussion to come is
‘deterrence’. Deterrence is widely understood to be the theory
that connects increased criminal penalties to a decrease in
crime rates (Bagaric & Alexander, 2011, p 269). When law-
makers introduce a new criminal law, they almost always cite
deterrence as being one of the principle objectives of that
law (Tonry, 1996, 2009). Although stricter criminal sanctions,
such as extended prison sentences, achieve various objectives,
deterrence unfortunately is not one of them (e.g. Anderson,
2002; Bagaric & Alexander, 2011; Pratt et al. 2006; Schiraldi
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& Ambrosio, 1997; Tonry, 2009). In short, deterrence does not
work. As Anderson (2002) points out, a longer term of
imprisonment fulfills victims’ retribution desires (p 296). In
addition, incarceration has an incapacitating affect on
individuals; and a lengthened sentence inevitably prevents
convicted offenders from being able to commit further offences
for its duration, at least outside of the prison environment
anyway (Anderson, 2002, p 296). However, neither of these
factors have much value when it comes to a) deterring others
who might be contemplating a criminal act, or b) deterring the
incapacitated individual from committing new offences once
released (Anderson, 2002; Greenwood, 1983; Levitt, 1998). This
is because violent offenders do not commit violent crimes
frequently enough for incarceration to cause any significant
crime reduction (Anderson, 2002). As for theft offences; the
possible consequence of incarceration has little to no affect
on whether an individual does or does not commit one
(Anderson, 2002).
Over the last two decades, mandatory sentencing laws have
proliferated in common-law jurisdictions, particularly ‘three-
strike’ laws (Tonry, 2009). Typically these law provide that
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for certain crimes (property, violent or drug etc,), those
facing their third conviction crimes be incarcerated for
lengthy period of time (Tonry, 2009). Although popular with
the public, these laws are a blatant example of the
discrepancy between knowledge and policy in the criminal
justice system (Tonry, 2009). Law-makers typically offer three
justifications for the imposition of mandatory sentencing,
namely 1) it ensures they who do the crime also do the time;
2) it provides transparentness whereby justice will be done
and society can see to this; and 3) it deters others from
committing crime (Tonry, 2009). Despite these justifications,
an overwhelming body of research indicates that, for each
political justification, the opposite is actually caused by
mandatory sentencing. In a comprehensive systematic review,
Tonry (2009) analysed multiple decades of research concerning
the impact of mandatory sentencing laws on the criminal
justice system in the U.S and other common law jurisdictions
including Australia. Tonry (2005) subsequently illustrated the
profound gap that exists between empirical evidence and law-
making, as well as a number of additional ‘unintended
consequences’ that mandatory sentencing has on the
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administration of justice. One example of a consequence is
when judges and lawyers who believe a mandatory sentence would
be unfair, devise ways to circumvent mandatory sentencing. Not
only does this lead to inconsistency (some are spared the
penalty while others are not so lucky), but it is completely
adverse to the policy objectives in relation to transparency
and justice (Tonry, 2009).
As for the political justification that mandatory
sentencing has a deterrent effect on crime, the scientific
evidence to the contrary is abundant. For example, US
researchers Kovandzic, Sloan and Vieraitis investigated
whether three-strike laws influence crime rates (Kovandzic et
al., 2004). Two decades of crime rate data was collected from
188 US cities populated by 100,000 or more people. The
researchers found that cities in states that had passed three-
strike laws demonstrated no statistically significant
reduction in the crime rates due to either incapacitation or
deterrence (Kovandzic et al., 2004). These results are
consistent with other research findings (e.g. Kovandzic, Sloan
and Vieraitis, 2002; Marvel & Moody, 2001; Stolzenberg &
D’Alessio, 1997; Zimring, Hawkins, & Kamin, 2001).
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Furthermore, and in support of Tonry’s (2009) argument about
‘unintended consequences’, three-strike laws are actually
linked to higher levels of homicide. For example, Kovandzic et
al. (2004) found a positive correlation between homicide rates
and some of the cities in states with the laws, supporting the
earlier findings of Marvel and Moody (2001) and Kovandzic et
al. (2002).
One of the most tenacious issues facing criminal justice
is the question of how to handle violent sexual recidivists
(Edgely, 2007). Sexual offences are considered among the most
heinous of crimes, and the very idea that those who perpetrate
them may be present amongst the community is troubling to the
public (Mercado & Ogloff, 2007; Robinson, 2001).To ease this
public concern, many jurisdictions have enacted several types
of laws which effectively deprive these serious offenders of
their right to liberty. The first type of law, that which
enables the ‘preventative detention’ of serious high-risk sex
offenders, aims to protect the community through detention
that continues after the expiration of their custodial
sentence (Edgely, 2007; Mercado & Oglaff, 2007). The other
type of law relates to community notification as to convicted
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sex offenders; who they are and where they live (Robinson,
2001). These laws, commonly referred to as ‘Megan’s law’, are
a form of civil commitment compulsary to those high-risk sex
offenders convicted in at least half of the US states (Mercado
& Ogloff, 2007). While yet to enacted in Australia, there is
ongoing political discussion for similar legislation here
(Edgely, 2007). However, because of this jurisdictional
difference, discussion will be limited to ‘preventative
detention’ laws.
It’s perhaps necessary to point out here that sexual
offenders are considerably less likely to reoffend than other
types of offenders such as those who commit arson, drug or
theft crimes (Hanson & Bussiere, 1998), and that such offences
are relatively rare to begin with (Broadhurst & Maller, 1992;
Hanson & Bussiere, 1998; Hanson & Morton-Bourgon, 2005). On
average, the observed sexual recidivism rate – where a
convicted sex offender recommits a sexual offence – is between
10% to 15% (Hanson & Bussiere, 1998). Compared to the
recidivism rates for burglary and drug offences, the rate for
sexual offenders is therefore remarkably low (Hanson &
Bussiere, 1998). Given their infrequent occurrence, it’s
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therefore interesting that sexual offences are able to conjure
such profound public outrage and concern (Mercado & Davis,
2007; Ogloff & Davis, 2005).
In 2004, shortly after Queensland became the first
Australian state to enact legislation specific to high-risk
sexual offenders, the constitutional validity of this QLD
legislation was challenged in the High Court case, Attorney-
General (Qld) v. Fardon (HCA 46, 2004). The QLD Act – the Dangerous
Prisoners (Sexual Offenders) Act (2003) – allowed for the post-sentence
preventive detention of sex offenders considered high-risk
sexual recidivists (Edgely, 2007). Robert John Fardon, the man
challenging the law, was the first offender to be affected by
it. Fardon had a history of recidivistic sexual violence, and
his imminent release was stirring significant public anguish
(Edgely, 2007).
There is little evidence that those who create
legislation for the management of sexual and/or violent
offenders give any consideration to the extensive body of
research that exists in relation to risk assessment, a concept
which featured early in this paper. The enactment of the
Queensland legislation was soon followed by law reform in
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Western Australia, with the introduction of the Dangerous Sexual
Offenders Act in 2006. Both provide for the indefinite detention
of at-risk sexual recidivists upon the expiration of their
custodial sentence, however neither specifies a systematic
procedure for the assessment of individuals to be affected
(Ogloff & Davis, 2005). In determining whether an offender is
a serious danger to the community, the QLD Act, for example,
simply calls for ‘acceptable, cogent evidence, with a high
degree of probability’. This was translated by the High Court
to mean ‘unacceptable risk’ – a worryingly ambiguous term.
Fardon argued this concept of unacceptable risk lacked
practical content and that such a definition made decision-
making a ‘meaningless charade’ (Ogloff & Davis, 2005). In
their attempt to clarify what they meant by unacceptable risk,
the Fardon majority went on to suggest that the degree of risk
in question be understood as a ‘risk of serious harm’; ‘an
element of risk’; or a risk that carried ‘a real possibility’
(Edgely, 2007; Mercado & Ogloff, 2007).Needless to say, the
majority did little to help demystify what was meant by this
idea of unacceptable risk.
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Domestic violence is another area of the criminal law
where politicians are eager to respond to community concern
and enact laws for the protection of victims. Laws such as
Queensland’s Domestic and Family Violence Protection Act 2012 and Western
Australia’s Restraining Orders Act 1997 formed from public policy
considerations that police were not taking this type of
violence seriously. These laws empower police to arrest,
without a warrant, any individuals whom they believe are
responsible for perpetrating violence on an intimate partner
(Iyengar, 2009, p. 85). WA is the only state that mandates
police take action (such as arrest) upon having suspicion that
violence is occurring (Ennis & Litwack, 1974; Monahan, 1981).
However, as most of the empirical research in this area has
been conducted in the US, studies from this jurisdiction will
be used to analyse whether these laws ‘work’.
Domestic violence mandatory arrest laws are in effect in
most U.S. states (Iyengar, 2009, p. 86). Like the WA law, the
US laws require police to arrest, without a warrant, any
individuals whom they believe are responsible for perpetrating
violence on an intimate partner (Iyengar, 2009, p. 85). In
support of these laws, US politicians cited the problematic
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results from the government funded Minneapolis Domestic
Violence Experiment (MDVE) (Sherman & Berk, 1984). The MDVE
was a randomized experiment whereby arrests were found to be
an effective means of deterring future violence. However, as
warned by the researchers themselves and numerous critics, the
experiment had a number of limitations which influenced the
reliability of the findings (Sherman & Berk, 1984). Numerous
researchers have attempted to replicate its findings, and have
been widely unsuccessful (Davis, Smith, & Nickels, 1998).
Regardless, these doubtful MDVE results continue to form the
basis for domestic violence policy in the US (Davis et al.,
1998; Iyengar, 2009).
Fairly recently, Iyengar (2009) investigated whether
mandatory arrest laws affect the level of reported domestic
violence, as indicated by the MDVE. Like the earlier research,
Iyengar’s findings did not support the MDVE findings. In fact,
Iyengar (2009) found that mandatory arrest laws actually are
linked to increased domestic homicides, a finding clearly
adverse to the purpose of such laws. Similarly, Davis, Smith
and Nickels’ (1998) investigated whether the type of
prosecutorial avenue taken against perpetrators of domestic
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violence offences affected the incidence of recidivism (Davis
et al., 1998). Regardless of the prosecutorial avenue (e.g. no
prosecution, case dismissed at trial, conviction and
incarceration), no evidence that it had any affect on
recidivism was found. These results are consistent with
related research which failed to show any link between
prosecution of DV and deterrence.
This paper has endeavoured to show that the rationale
behind the punitive and policy-driven laws which feature so
heavily in the criminal justice of common-law jurisdictions,
are greatly at odds with the empirical literature. Policy
discussions and debates about crime and justice are too often
emotionally charged and express political ideologies rather
than ideas (Zimring et al, 2001). It is understandable that
debates of this nature conjure intense feelings. After all,
the stakes in crime are high, extending from community safety
to matters of life and death. Given this emotional element, it
is all the more important that debate and discussions about
crime and justice be coherent, with passion kept to minimal
levels. Similarly, policy decision-making in this area should
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be at the highest level of political discourse, and informed
by replicated and reliable scientific evidence.
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