Bagaric is right for once

I’ve been fairly scathing  in the past about some of the more egregious published opinions of Deakin University’s blogging  legal academic Mirko Bagaric.   Here in relation to his advocacy of the legalisation of torture; and here on his proposal to re-introduce the notion of fault in divorce; and here when he and colleague James McConvill wrote a half-baked paper advocating that the findings of “happiness” research should be a primary determinant of government policy.

Accordingly it’s only fair that I should make some public acknowledgment now that Bagaric has finally published something with which I mostly agree.   An article by Bagaric  published today at Online Opinion (there was an earlier and less detailed version in the MSM a few days ago) advocates implementation of grid or determinate criminal sentencing in Australia.   It’s a topic I’ve blogged about previously, but presumably in an earlier and disappeared incarnation of Troppo  because  I can’t now find it.  Anyhow, the issue is important enough to quote Bagaric’s argument  at some length:

The way to inject fairness and community confidence into sentencing is to adopt a clear rationale for the system and to develop it on the basis of research findings regarding what can actually be achieved through a state run system of punishment.

A principal objective must be to ensure that offenders get their “just deserts”. This can only be achieved by adopting the principle of proportionality, which prescribes that the pain inflicted by the punishment should equal the harm caused by the offence.

This formula should not be distorted by misguided considerations such as remorse or a desire to rehabilitate offenders. The empirical evidence shows that rehabilitation doesn’t work. Neither do other goals which currently serve to increase penalties, such as specific deterrence – offenders who commit the same offence recidivate at the same rate, irrespective of whether they are dealt with by way of a fine or imprisonment.

Just deserts is best secured by setting penalties for all offences by way of predetermined grid – with mandatory terms of imprisonment only for crimes that cause the most distress to victims.

Mandatory minimum penalties have received a lot of press over the past few years. None of the criticisms have even a veneer of plausibility, where the design of the grid is informed by a clear rationale and research data.

It is false that mandatory minimum penalties will result in an increase in the imprisonment rate. The guiding principle for fixing the penalties is proportionality. This will result in sentences which will have the net effect of making the system fairer and less punitive. Serious sex and violent crimes devastate the lives of victims. Perpetrators of these crimes must go to jail. Minor traffic offenders and welfare cheats don’t shatter the lives of others. They won’t go to jail.

The grids I propose will result in a reduction in prison numbers, but will guarantee that the people who deserve to be in jail will not avoid prison by milking a judicial sympathy gland. The costs saved by reducing prison numbers ($70,000 a year for each prisoner) will be used to put more police on the streets.

It is false that we should rely on judges to achieve proper sentencing outcomes. Judges are not trained in sentencing. They do not have some sort of mystical fairness antenna. Their hunches are not superior to those of other people in the community. Let’s take all hunches out of the system and ensure that all offenders get their just deserts.

It is false that offences vary too much to enable set penalties to be set. Crimes are differentiated with sufficient precision to enable experts to set penalties that match the seriousness of the offence. In the end, most offenders are not unique and neither are most crimes. This is supported by the outstanding success of the AFL and NRL grid sentencing models. In the end, all rapes and serious assaults devastate the lives of the victims. There are no exceptions.

It is false that minimum penalties are an extreme sentencing model. Most criminal offences in Australia are already dealt with by way of formal or de facto minimum penalties. We have mandatory penalties for offences such as drink driving, speeding and disqualified driving. In fact at the moment over 80 per cent of criminal matters are already dealt with by an on-the-spot fine (which serves as a de facto minimum penalty given that virtually no one challenges the fines at court). The perverse aspect of the current approach is that we have minimum penalties for relatively minor offences, but none for serious offences. Incredibly, people who commit rape can avoid a prison term, yet if you get pinged twice for disqualified driving in some Australian jurisdictions it’s mandatory that you serve at least one month in jail (although there is a discretion to suspend the sentence).

However, Bagaric’s proposal that  property offences should generally be dealt with by way of fine and community work rather than imprisonment is one that I would question at least in part.   I agree in relation to first and second offenders, but recidivist thieves must know that they will be imprisoned.   Research shows that the certainty of detection and imprisonment (though not the length of that imprisonment)   has a significant general deterrent effect.

I would also prefer a “presumptive” or structured sentencing model rather than a determinate sentencing  approach that completely removes the discretion of judges and parole boards (Bagaric seems to be advocating the latter).   Structured sentencing is described in this US Department of Justice publication:

While many states sought to increase the “determinacy” of their systems through the abolition of discretionary parole release, others sought more “structure” in their systems through the adoption of recommended or presumptive prison terms for offenses. States with structured sentencing seek to narrow or guide judicial discretion in determining the length of an imposed prison term by proscribing a recommended term within the wider statutory sentence range for an offense. Judges are expected to impose the recommended term; however, states generally allow a judge to impose a term of incarceration above or below this recommended term (up to the statutory maximum or down to the statutory minimum) based on aggravating or mitigating circumstances. The “structure” in the system refers to the effort to ensure that prison terms imposed for similar offenses or offenders are uniform and that the criteria for imposing sentences are consistent for all offenses and offenders. While determinate sentencing is about controlling release decisions and time served, structured sentencing is about controlling sentencing decisions and the length of prison terms imposed. Thus, in addition to distinguishing determinate and indeterminate systems, it is equally important to distinguish “structured” and “unstructured” systems (see Chapter Four)

States accomplished this structure through the creation of two similar, yet distinct, mechanisms. The first was “presumptive sentencing,” or a system of single recommended prison terms or narrow sentence ranges within the wider statutory sentence range for each offense or offense class. The system is “presumptive” because it is presumed that the judge will impose the recommended prison term or a term from within the narrow recommended range; generally, a judge may impose a prison term that is longer or shorter than the recommended term or outside the recommended range only by a finding of aggravating or mitigating circumstances or by stating reasons for deviating from the recommended term. Between 1975 and 2002, nine states adopted some form of presumptive sentencing system (see Table 1-5).

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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17 years ago

I also thought that was a very sensible contribution! Mainly because it mirrors my own thinking to some extent, especially about the ‘two-track’ sentencing regime.

THe only difference is that I would prefer a three-track regime – basically his two tracks plus a hard-labour one (literally) for serious organised crime and drug smugglers.

Chris Lloyd
Chris Lloyd
17 years ago

Bagaric says: “The empirical evidence shows that rehabilitation doesn’t work.”

17 years ago

Transcendental Meditation huh. Do they get naturopaths to check them out as well, and astrologers to advise them? Perhaps an evangelical healer laying on hands would help?

Nicholas Gruen
17 years ago


You say “I’ve been fairly scathing in the past about some of the more egregious published opinions of Deakin University’s blogging legal academic Mirko Bagaric. . . . Accordingly it’s only fair that I should make some public acknowledgment now that Bagaric has finally published something with which I mostly agree.”

Well, there was always another option. Ignore him. It’s fairly clear that his stuff is not well researched and is an attempt to get some public attention. I don’t mind the attempt to get attention if the stuff is well researched and thought through. But this, as the other stuff is not – though it is provocative of some interesting discussion. Your gloss on what he’s written is much better than his stuff.

I agree that the current system is amateurish – like this guy’s articles.

He says “In the end, all rapes and serious assaults devastate the lives of the victims. There are no exceptions.” Now I’m not condoning rape. It’s a serious crime. It should be punished severely. And I’m not condoning the way the judiciary use their discretion. But the claim is codswallop. Rapes are serious and should be punished. Some should be punished with a maximum jail terms of ten years plus, and others should be punished with lesser sentences.

Ditto other areas. Which takes us to the system you propose. Various mercy killings are nevertheless murder under our law and it’s absurd to impose the maximum sentence for that. (Though generally I have no problem with imposing maximum sentences for murder – but making them subject to some well structured capacity for leniency – with appropriately trained people exercising the judgement.) Indeed, in the case of murder, I don’t have a problem with a sentence of jail for the criminal’s natural life subject to release after twenty years only where some board certify their confidence that the chances of reoffence are low.

17 years ago

I should resist the suggestion that N Gruen’s comments would apply almost equally to Krugman when he isn’t writing about economics, but I won’t – sorry in advance.

On topic I think there is a fundamental cleavage in sentencing between judges faced with the individual offender and the tragic consequences of jail on that offender and his/her family – which Bagaric refers to, on one hand, and the legislator faced with satisfying community outrage on the other – Bagaric’s unheard (by the judge) victims. Among other things, this leads to mandatory sentencing.

Personally, I agree with Bagaric (I think) that part of the solution is a greater range of sentences, and in particular I think offences such as drink, and dangerous, driving, a great example of one for which judges hate imposing jail sentences, should be punished by community service, and lots of it.

One of the reasons I think that is that I do agree, and strongly, with N Gruen about the importance of judicial discretion, although I am not sure that there are enough non-devastating rapes to make Bagaric’s claim ‘codswallop’. I once had a very serious argument about whether rape was worse than murder – I thought not, but an experienced criminal law and jurisprudence academic thought that in many cases yes – based particularly on psychiatric assessments of victims.

Bill Posters
Bill Posters
17 years ago

Ken: “Bagaric is probably over-egging the pudding here,”

Actually, he’s just making stuff up, as your quote from his own work demonstrates. Bagaric is a completely unreliable narrator – if he says the sun rises in the east, best check it out for yourself.

Paul Watson
17 years ago

Bagaric sets up a binary thus:

“Serious sex and violent crimes devastate the lives of victims. Perpetrators of these crimes must go to jail . . . In the end, all rapes and serious assaults devastate the lives of the victims. There are no exceptions . . . Minor traffic offenders and welfare cheats don’t shatter the lives of others. They won’t go to jail”

Nicholas Gruen
17 years ago

Not to mention his implicit condoning of white collar crime. If you steal $2 bil then that’s not really devastating anyone’s life unless you blow up a safe.