Ronald Thwaites | Mandatory sentences and more

It is very hard for some lawyers, more so for desperate legislators, to appreciate the limitations of the law, especially those statutes which carry criminal sanctions, to curb antisocial behaviour and change culture. We think that if you just pass a law, things will get better. For all its nuances, law is a blunt instrument of social regulation; the more so when judicial discretion is excluded.

Obviously, every society requires regulations and sanctions for those who breach the rules. So don’t caricature what follows by saying it is an argument against law – no. The point is that there are always deeper and more pervasive factors behind lawbreaking which don’t go away because there is a legal prohibition. And often, in our self-imposed superficiality, we don’t want to admit that, let alone do something about them.

That’s what is happening in the Jamaican Parliament right now. We are at our wits end with violent crime, especially murder; the causes are staring us in the face, but remedying them is politically (not economically!) inexpedient, so we have recourse to variants of repression, like the 15-year mandatory penalty for illegal possession of a firearm.

MANY PROBLEMS

There are many, many problems with mandatory sentences in a liberal democratic society, such as most of us would want to preserve. One of the biggest is that fixed penalties don’t work. Some of us spent years in the criminal courts in the 1960s and ‘70s when the mandatory minimum penalty for possession of a spliff was 18 months in prison. I ask you. Did that penalty deter the use of ganja? It was an expensive failure which wrecked thousands of lives, demeaned judicial function, and was an abject failure in altering conduct. Nobody ever thought of educating ganja users about the risks of using the weed.

Some of us remember when death was the mandatory penalty for murder, and yet killings increased and several innocent people were hanged. In the 19th century when there were crowds watching public hanging of pickpockets in London, pickpocketing was rampant among the onlookers.

And not so long ago, have we forgotten the 1970s Gun Court legislation which prescribed indefinite detention for a number of offences? Did that work? Answer truthfully, please. The language I remember from that epoch is being exactly paraphrased in the current select committee report.

I also recall that given the rigidity of the mandatory sentence, judges were very unwilling to convict. In summary, the penalty produced injustice more than justice and did nothing to stanch the culture of gun violence: virulent then, epidemic now.

We refuse to face our own self-created truth. This society is spawned from seeds of injustice and thus relies on violence and retribution. The addiction to the gun is celebrated, instead of being scorned. Uptown lives in fear of the unwashed and is unsure of the capacity of the State to protect them. Thus, the long lines at the gun shop, the Firearm Licensing Authority and the shooting range. Downtown knows that the State can’t protect them and, vulnerable in every sense, achieves a vestige of power by carrying weapons of terror and death. Same addiction!

DISAPPOINTED

I am particularly disappointed by Minister Chuck. He, unlike some others who preen themselves now, is an experienced practitioner who at one time had a progressive and constructive approach to law and punishment. You even wrote a book about it, didn’t you, Delroy? It is to the nation’s disadvantage that the justice portfolio has been gutted.

It is another contempt to our judiciary to remove from them discretion in sentencing in gun-possession cases. It is becoming fashionable to undermine our judges, accusing them of erratic sentencing or political bias. From my observation and remembrance over 50 years of practice, there is no evidential basis for this. It is a further manifestation of the cynicism and distrust of public servants which, with sublime idiocy, the Parliament, the chief butt of this scorn, again joins in the baseless denigration of judges, whose integrity and balance are more highly trusted by the population than most politicians.

Instead of discussing at what age little children can lawfully be introduced to the gun culture, Parliament should be discussing how the mandatory National Youth Service can start now (no gun training to be involved!) to engage the thousands of idle youth, frustrated, angry, often hungry, and all psychosocially off balance.

But no, oblivious to the blatant and tragic contradiction, we ‘big-up’ alternate dispute resolution in a society which condones rampant state-sponsored violence and idolises gun possession for the rich and connected. Meanwhile, little is being done, apart from just talks about cultivating personal and social relations based on mutual respect, compassion and generosity of spirit. Time for some straight thinking!

Please indulge a postscript.

In all the discussion about reform of public-sector compensation, where is the concomitant requirement for increased productivity? Government services will now cost the taxpayer more. It is extremely frustrating to get prompt and efficient service from most departments of the state bureaucracy. So are we about to repeat the usual cycle of paying more without exacting more accountability and greater productivity? I hope not, but it’s heading that way. Scripture describes what is happening.

“The Scribes and Pharisees...raise up heavy burdens (hard to carry) and lay them on people’s shoulders, but they will not lift a finger to move them.” (Matthew 23:4)

Rev Ronald G. Thwaites is an attorney-at-law. Send feedback to columns@gleanerjm.com.