By Senator Ivana Bacik.
In an Irish context, the issue of ‘concurrent sentencing’ (when sentences for different offences are served in parallel, or simultaneously) has recently received public attention, specifically in the context of some reported rape cases. Politically it is all too easy, especially when faced with particularly brutal cases, to call for tougher sentences generally. In particular, commentators in Ireland have questioned why more use is not made of consecutive sentences in criminal practice, especially for violent sexual offences.
There is no simple answer to this question. In this jurisdiction, judges have significant discretion in sentencing, subject to the statutory maximum penalties set down for specific offences, and to the fundamental principle of proportionality. Our sentencing system is different to most other European criminal justice systems in which judges are bound by much stricter rules, and in which judicial discretion is therefore more highly restricted.
Judges’ discretion on concurrent sentencing
Our discretion-based system means that we have very few mandatory penalties for serious offences, apart from the life sentence following automatically on a conviction for murder. But there are some situations, laid down in legislation, where judges must impose a consecutive sentence. For example, a 1984 law provides that if a person commits a crime while out on bail (at liberty pending trial) for another offence, the sentences for each of those offences must be made consecutive.
Judges also tend to impose consecutive sentences, where offences are not part of the same sequence of events; in other words where, for example, an accused person is charged with two separate counts of rape, committed against two different individuals on two different dates. But the ‘single transaction’ sentencing rule means that, for example, if two violent offences are committed as part of the same incident, concurrent sentences will usually be imposed for each.
There is also an important general rule – that where consecutive offences are imposed, the totality of the resulting punishment must not be disproportionate. This is a sensible rule, because otherwise a person convicted of five charges of shoplifting, for example, who gets sentenced to five consecutive prison terms would end up serving the sort of lengthy term in prison that should only be applied to a serious crime of violence.
Indeed, where consecutive sentences are imposed in our lowest court, the District Court, the total prison term should not exceed two years. This rule is applied because only minor crimes are tried in the District Court; more serious offences, like robbery, serious assault or rape are sent up to the higher-level courts, the Circuit or Central Criminal Courts, which have power to impose longer prison sentences.
Addressing the causes of crime
Finally, political debates on crime often tend to focus on sentencing, with a view expressed that prison is a deterrent; that a person who is imprisoned will be unlikely to re-offend. However, anyone working within the criminal justice system in any country knows that most of those sentenced to prison terms are likely to re-offend – research shows us that prison as a deterrent simply does not work.
This is because there are many causes of crime. We know that factors like drug addiction and deprivation play a significant role in making it more likely that individuals will commit offences. Thus prevention of crime will not be brought about by changes in the criminal justice system alone, or tougher laws on sentencing.
Much more long-term measures are required – measures which require a ‘joined-up’ approach, with different agencies taking responsibilities for tackling crime through tackling its deep-rooted causes. This perspective on crime is associated with the politics of the left, of socialism and social democracy, which recognises the social and economic context of the criminal justice system. But it is also a perspective on crime that is backed by academic research and objective evidence around ‘what works’ in sentencing policy.
Rights of victims of sex crimes and violence
Clearly, few would disagree with the contention that society must punish those who commit crimes of violence. And for those on the left, as for those on the right politically, there are many offenders, especially violent sex offenders, for whom prison must be seen as the only appropriate sanction – both to punish those offenders and to protect society.
Those of us on the left, especially following the work in this area carried out in recent decades by feminist activists and theorists, also understand how vitally important it is that victims’ rights are given more priority within the criminal justice system. I have personally campaigned for many years for greater protection for the rights of rape victims and victims of other serious crime.
However, the main thing that victims want is to prevent crime from happening in the first place. In the interests of protecting victims, in developing criminal justice policies we must therefore focus on sentencing procedures that are likely to prevent crime from happening.
I believe that sentencing judges should be required to take account of how best to rehabilitate the offender, so that they will not re-offend. In respect of sex offenders, recent reports demonstrate the importance of adopting effective rehabilitation programmes to prevent re-offending and protect potential victims.
It is essential, for victims of crime and for society in general, that a coherent sentencing policy is developed, with the aim of ensuring that judges exercise their discretion in a more structured way.
Such a policy should include clearer rules around the use of consecutive prison sentences, and an emphasis on rehabilitative strategies proven to prevent re-offending, both within and outside the prison system. This evidence-based approach makes an eminently sensible basis for policymakers on the left in developing appropriate criminal justice reforms.
Ivana Bacik is Labour Senator for Dublin University and leader of the Labour party in Seanad Éireann. Her website is here and you can follow her on Twitter @ivanabacik.