Mandatory Sentencing: A King Hit For Courts

You can smell the air of an election in Victoria. On Sunday the Napthine Government announced it wants 10-year mandatory minimum sentences for “one-punch” killers.

The Labor Opposition retorted that it would prefer a new offense of death by assault that would offer up to 20 years in prison.

Obviously the November election is going to be a standard law-and-order auction.

At least when New South Wales introduced its mandatory minimum sentences for one-punch laws in January it did so in response to a massive media-driven moral panic about alcohol-fuelled violence.

Let’s be clear. One-punch killers deserve the maximum possible penalty that is proportionate to the crime that has been committed.

But mandatory minimum sentences have a special place in the tough-on-crime pantheon – there is almost uniform intellectual agreement that they are a bad idea.

The title of one 2009 survey on the evidence about mandatory minimums led with its conclusions: The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings. It argued “the decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones.”

Opposition to mandatory minimum sentences isn’t a left-right thing. In 2000 the conservative Samuel Griffiths Society published a paper describing mandatory sentences as a “tragedy”, “unjust”, and violating the “fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime”.

So why? The purpose of mandatory minimums is to reduce the discretion judges have in determining sentences, replacing that discretion with a bright-line rule determined by the legislature.

The idea is that judges tend to be soft on criminals, apparently giving lower sentences than the public would like. So the legislature has to step in. Furthermore, imposing a mandatory minimum sends a message: this is an especially serious crime.

But removing judicial discretion in the sentencing process can lead to serious miscarriages of justice – forcing judges to give disproportionately tough sentences when the circumstances may demand more leniency.

Nor, as the 2009 survey cited above makes clear, is there any consensus that mandatory minimums have particularly powerful deterrence effects – at least no more so than discretionary sentencing.

And rather than imposing parliamentary control over sentencing decisions, mandatory minimums shift discretion from judges to prosecutors.

This latter point is the most important. Mandatory sentences aren’t mandatory, in any real way. Every criminal system, by its nature, has to involve a great deal of discretion.

Under a system with mandatory minimums, the key issue becomes what the prosecutor intends to charge – the charge with the mandatory sentence, or some other collection of charges? That decision encourages prosecutors and accused criminals to bargain about what charges will be bought and what facts will be admitted before any trial takes place. This is particularly prominent in the United States where mandatory minimums are extremely common. Suspects and prosecutors engage in a game of arbitrage, negotiating around the suite of potential charges.

As one Australian paper argued, mandatory sentences “make pre-trial decisions the key to the outcome of a case”. They don’t eliminate discretion. They just shift it to prosecutors. Hardly any more democratic, but much more opaque.

Of course, most voters would prefer harsher penalties for crime, particularly thuggish crimes like king hits. If they didn’t, then tough-on-crime policies wouldn’t be politically effective. One global study concluded that mandatory minimum sentences are popular … as long as they are discussed in general terms. But when presented with specific cases that popularity ebbed away.

That finding accords with a more general observation that different expectations about sentencing between courts and community disappear when specifics are examined. (See this Tasmanian study, for instance, or this Victorian one. The NSW parliament has a recent overview of research here.) The reason is simple, if a bit uncomfortable: courts follow public opinion more than they care to admit.

The original mandatory sentence was the death penalty. Capital punishment is as final a punishment as you can get. It was loved by the tough-on-crime politicians of the 17th and 18th century, when long-term incarceration was too expensive to be an option.

It is said that Edmund Burke once commented he could “obtain the consent of the House of Commons to any Bill imposing the punishment of death”.

But even in that era the judiciary tried to vary the punishment to fit the circumstances of the crime.

Stuart Banner points out in his 2002 book the Death Penalty: an American History there were a surprising number of ways executions could be varied to make them more lenient or more punitive. Sometimes a hanging was staged up to the very last moment, when the condemned was released to their surprise. Sometimes the execution was merely theatrical. For the worst crimes, hanging was combining with, for instance, dismemberment.

In other words, even in a world with just one possible punishment in theory – execution – the judiciary and executive government saw the need for substantial variation in sentencing.

Legislation is a blunt instrument. To impose a general rule on human society it is necessary to abstract away from specifics; to slide over details and particulars in order to come to a broader principle that can be applied to an unpredictable and diverse mixture of conduct in the future.

Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice.

It is one of the foundations of our common law system. Judges must have the flexibility to impose sentencing in proportion to the crime, taking into account all the circumstances and specifics and the necessity to punish those who have done wrong.

This principle is too important to abandon just because an election is coming up.

It’s Power Grabs We Should Fear, Not Cybercrime

“Cybercrime is a systemic risk and I think it is the next black swan event,” the head of the Australian Securities and Investments Commission, Greg Medcraft, told a forum at the end of last month.

That’s just 15 words in which Medcraft squeezed one moral panic and two fashionable but misleading economic concepts.

Catchy, though. Medcraft’s comments were widely reported.

But they demonstrate, once again, how Australian regulators and law enforcement agencies are using the digitisation of the economy as an opportunity for a huge power-grab. More on that in a moment.

Medcraft’s argument is drawn from an unofficial working paper, “Cyber-crime, securities markets and systemic risk”, published mid-last year by the International Organization of Securities Commissions, an association of which ASIC is a member. You can read the paper here.

So, could cybercrime be the next ‘black swan’ event? A black swan (the phrase was coined by the statistician Nassem N. Taleb) is characterised by two things. It is incredibly devastating, and it is incredibly rare. This makes black swan events hard to predict precisely because their probability of occurring is so low.

Crime, whether ‘cyber’ or traditional, does not fit the black swan criteria.

It is not incredibly rare. Financial crime is an already existing, easy-to-quantify, and constant risk.

Nor has it been incredibly devastating. Cybercrime is usually low level. Hackers take down websites, not stock exchanges.

Perhaps they might do worse in the future. But that does not make them a black swan. The very nature of a black swan is that they are unpredictable. You can only recognise them in retrospect.

Nor is cybercrime a ‘systemic risk’. This term refers to the danger that a shock to one institution will have flow-on effects to other institutions in the system. In the Global Financial Crisis, the initial shock was declining house prices, which led to a run on some banks, which spilled over into runs on other banks, and eventually a credit crunch.

It’s plausible to argue that an initial shock could be cybercrime-related. Yet the systemic risk is created by the interconnectedness, not the shock. The worst scenario the International Organization of Securities Commissions can come up with is a cyber-attack on a systemically important institution, or a coordinated attack on a large number of institutions at once. But these are merely more initial shocks.

This might seem a minor objection to Medcraft’s claim. Pedantic, even. It isn’t.

Now that the GFC has passed, financial regulators are quietly changing their approach to regulation. How they see the relationship between micro failures and macro consequences is central to this.

Should regulators try to predict and prevent the crises themselves, as Medcraft seems to argue, or should they instead focus on how the system responds to unforeseeable crises?

Nassem Taleb invented a second famous term: anti-fragility. Anti-fragility describes systems which become stronger when they are stressed. Taleb contrasts this with systems that are simply resilient, designed merely to survive shocks. A resilient system is one which tries to defend itself against known dangers – say, cybercrime. An anti-fragile system is one which accepts uncertainty and is designed to evolve in response.

No surprise then that Greg Medcraft talks about the need for ‘cyber-resilience’. And that makes technology the problem, and ASIC the solution.

Cybercrime is not the bogeyman it is made out to be.

Sure, there is an extraordinary variety of claims about the damage cybercrime does to the economy. Almost all of them are overstated. At Crikey, Bernard Keane has an excellent overview of just how ludicrous these estimates are.

This paper from 2012 finds that traditional crime costs the typical citizen at least a hundred-fold more than computer crime. The paper concludes that the best way to deal with cybercrime is simple law enforcement. Hunt down criminals individually. Throw them in jail. Cybercrime is hardly the sort of policy dilemma that screams black swans and systemic risks.

But not according to the International Organization of Securities Commissions. In its working paper, the black swan event it foresees is a horrifying cyber-catastrophe originally dreamed up by Richard Clarke in his 2010 book Cyber War.

Clarke, a former US counter-terrorism official, warned of a full-blown digital international conflict where cyberwarriors cripple national infrastructure, release chlorine from chemical plants, remotely crash trains, etc, etc, etc.

As Wired magazine put it, Clarke’s prognostications are like “the Book of Revelation re-written for the internet age, with the end-times heralded by the Four Trojan Horses of the Apocalypse”.

Our corporate regulator can’t seriously believe this hyperbolic nonsense. So let’s assume they don’t. Yet that doesn’t give them much credit.

ASIC has a track record of seeking extra powers in response to technological change.

It is the most enthusiastic user of section 313 of the Telecommunications Act, a law that allows it to block (that is, censor) websites from Australian internet users.

And it is one of the big advocates of mandatory data retention, a policy which would force internet service providers to keep records of everything we do online, just in case law enforcement agencies – and regulators – want to look at it in the future.

Medcraft’s dark warnings about cybercrime and black swans need to be seen through this prism: the ongoing battle between government power and digital liberties.

ASIC knows, as all good bureaucracies do, that the best way to get new powers is to massively overstate the problems those powers are supposed to fix. Unfortunately it seems that policymakers are particularly susceptible to technological gobbledygook. Remember the internet filter?

Cybercrime is, undoubtedly, a challenge. But we should be worried when our key regulators, deliberately and explicitly stoke up mindless panic about the impact of new technology.

Neo-Prohibition Isn’t The Answer To Violent Crime

It wouldn’t be a moral panic without demands that the government do something.

And so it is with the alcohol-fuelled violence panic that swept New South Wales over the Christmas break.

Richard Denniss of the Australia Institute made a few proposals in the Sydney Morning Herald here. Governments could increase alcohol prices by increase taxes or imposing a minimum price. They could restrict pub opening hours. They could even set a maximum blood alcohol level for people in public places.

Such proposals are more or less the sort of neo-prohibition public health activists have wanted for years.

Today Barry O’Farrell announced a crackdown on alcohol venues, with mandatory bottleshop closures at 10:00pm, a 1:30am pub lock-out, and no pub service after 3:00am.

Let’s lay aside whether it is fair to restrict the liberties of all because of the idiocy of a few. It is utterly and despicably perverse that our immediate reaction to a highly publicised violent assault is to blame public policy, or market forces, or “culture” in general.

It’s classic guilt displacement, shifting the responsibility from the perpetrators of violence and onto society. That is, it’s not totally their fault they were violent. Alcohol vendors were plying them with liquor! Lazy politicians were neglecting their regulatory duties! Music videos have been glorifying drinking!

What does this imply for the moral responsibility of the perpetrators? After all, to punish somebody for an act they had little control over would be a travesty of justice.

Perhaps the number of bottleshops in a suburb should be a mitigating factor in sentencing. Of course, none of our latter-day prohibitionists have taken their logic this far. But such perverse reasoning is implicit when we seek social explanations for individual criminal acts.

The perversity increases when you realise that there is no alcohol-fuelled violence crisis. The rate of violence related to alcohol is stable, even declining. (This piece in the Guardian sums up the evidence for New South Wales nicely.)

Our alcohol consumption is steady, too. Australia’s per capita alcohol consumption has been hovering around 10 litres a year for the last few decades. (In the 1970s it was more like 12 litres.)

But regardless of whether it is trending up or trending down, it remains the case that the Australian public consumes a large quantity of alcohol, and gets into very few fights.

There are, as there have always been, brutal thugs who take pleasure from violence. The correct – and most direct – response is to target the thugs, not to fiddle with tax policy.

The relationship between alcohol and violence is not as clear cut as you might expect. Yes, much violent crime is caused by intoxicated people. The doctors and police are right. But figuring out whether alcohol actually causes the violence is quite hard.

Correlation, as we all know, is not causation.

The most common theory is that alcohol lowers inhibitions. It directly anesthetises the parts of the brain that we use to regulate our everyday behaviour. Alcohol changes us physically, and in a way that makes some people more aggressive.

From experiments in laboratory settings we know that people who consume alcohol exhibit more aggressive behaviour.

But the inhibition theory is not the only theory which could explain this.

Some experiments have shown that people tend to get more aggressive even when given a placebo. That is, when they are told they are going to have an alcoholic drink, but are secretly given a non-alcoholic tonic, they get aggressive anyway. Thus the ‘expectations’ theory suggests people get more aggressive when intoxicated simply because they expect to get more aggressive when intoxicated. They think aggression is more socially acceptable in a drunk.

There are other theories. The connection between alcohol and violence could be indirect. Intoxication reduces intellectual function, causing us to exaggerate provocation and to needlessly provoke others.

But these theories only take us so far. It’s one thing to show in a lab that people who believe they are intoxicated people are marginally more aggressive than those who are sober. It’s quite another to draw policy conclusions from that finding.

The overwhelming majority of people drink without getting violent. (Some people just get more helpful.) In the real world, humans are able to regulate their behaviour even while intoxicated. Even if alcohol ’causes’ violence, it only causes it rarely, and in a tiny fraction of people.

Even drunk people make choices. Even drunk people can be moral. We are not machines. Public policy ought not to treat us like machines.

The more policy-focused researchers try to side-step this issue with macro-level studies that look at correlations between alcohol consumption in an area and incidents of violence.

That’s where we get the claims that bottleshop density facilitates violence, for instance.

But these studies often struggle to distinguish between other factors. The essential feature of bars and pubs and nightclubs and bottleshops isn’t that they sell alcohol. It’s that they bring large groups of young men together in close proximity.

Ultimately, the neurological, psychological, and sociological evidence about the relationship between alcohol and violence isn’t strong enough to get us away from a simple intuition: violent acts are caused by violent people, regardless of their level of intoxication.

As one paper from 2008 concludes, “alcohol may facilitate violent behavior among those who are already inclined to behave that way. It is also possible that violent adolescents sometimes use alcohol as an excuse for their behavior.”

So the idea that we would be trying to blur the responsibility of violent offenders with alcohol regulation is utterly, utterly repugnant.

It’s exactly what the thugs, and their lawyers, want us to do.

Queensland Party Crackdown Out Of Control

Every government has a reform program of some description. The reform program of Campbell Newman’s Queensland government is to expand, to a ludicrous and dangerous extent, the powers of the police.

Admittedly, the title of the Police Powers and Responsibilities and Other Legislation Amendment Bill doesn’t have the same sort of grunting aggression as the Vicious Lawless Association Disestablishment Bill, which was passed earlier this year to target bikies.

But for all the absurdities of the anti-bikies legislation, the bill currently being considered by the Queensland parliament is probably worse.

The bogey-man in this bill is “out-of-control” parties. No doubt you can conjure up such a threat to public order in your mind. Hundreds of drunk teenagers spilling out on the street and damaging nearby property.

But according to the draft bill, a party is a gathering of twelve or more people. And it is considered out-of-control if three people at that party do something like be drunk in a public place, cause excessive noise, unreasonably block the path of a pedestrian, litter in a way that might cause harm to the environment, or use “indecent” language.

The punishment for holding a party that gets out-of-control? A $12,000 fine or a year’s jail. In other words, a party host is punished for the actions of party guests. For good measure, the bill allows police to enter property uninvited without a warrant.

Out of control parties are a classic moral panic. They involve teenagers. They involve alcohol. They involve new technologies – house parties are now being organised on social media. This apparently makes them worse than they used to be.

Of course before Twitter and Facebook there was the text message. People panicked about text message parties too. And before text messages? Well, teenagers clearly found some way to organise wild parties that ended in arrests.

Modern police forces have existed since the nineteenth century. For two centuries parliaments have been loading the criminal statutes up with new offenses. According to the government, “the ever increasing size, frequency and societal impact of these out-of-control events in recent times has necessitated the development of specific legislation”. Yet everything that makes an out-of-control party out-of-control is illegal already.

It is already illegal to be drunk and disorderly. It is already illegal to riot. It is already illegal to harass pedestrians, use indecent language, breach the peace, be a public nuisance, threaten another person, throw a bottle, damage property, assemble unlawfully, supply minors with alcohol, fight, show your private parts in public, be a hoon, light fireworks, endanger the safety of another individual, litter, trespass, and be excessively noisy.

A recurring feature so many legislative proposals in our modern era is that they mirror existing offenses. At best, this makes them redundant. At worst – as in this anti-party bill – they offer prosecutors and law enforcement officers a menu to pick and choose whatever charge will meet with the greatest punishment.

In other words, they vest police officers and prosecutors with enormous discretion to act, arrest, and charge however they like. It has to. There’s no way the Queensland police could enforce the law, as written, on any of the innumerable parties that occur every weekend across the state. Three people swearing at a party of more than a dozen guests that annoys the neighbours? Hard to imagine a party that wouldn’t fit this criteria.

A basic tenet of liberal democracy is that politicians – the representatives of the people – write the laws to shape the society they want. The permanent, administrative arm of government merely enforces those laws, neutrally and consistently.

That’s the ideal, anyway. But not all statutes are enforced equally. The police, and their prosecutors, have an enormous amount of discretion about what laws they chose to focus on. (Hence the periodic “crackdowns” on jay-walking or speeding. If all laws were enforced at all times, there would be no need for crackdowns.)

No matter how many rules we impose on police work, discretion is inevitable. Inevitable but not desirable. A liberal democracy is a government of laws, not a government of men, as James Adams said. As far as possible, we don’t want to trust justice and our liberty to the judgment of fickle individuals.

Police officers are no better or worse than the rest of us. There are bad eggs in law enforcement, as there are in the general public. And good eggs can sometimes have bad days. Queensland’s anti-party legislation empowers good eggs and bad eggs alike.

As does the anti-bikies legislation, which is so over-blown that it borders on surrealism. Such laws invite the sort of miscarriages of justice that a liberal democratic legal system should strive to avoid. Australians who don’t live in Queensland should be paying attention too.

One feature of Australian federalism is that states learn from each other. A law in one state is apt to be copied by another state. We saw anti-bikies laws replicated across the country earlier this decade. No question that all state governments will consider imposing Queensland-style laws themselves.

Defending his out-of-control parties bill, the Queensland Police Minister has argued that “the majority of people who do the right thing have nothing to fear”. Well, that’s not the way the bill is written. Not if the letter of the law is enforced. No free society should rest their liberties on the discretion of the agents of the state.

Anything You Don’t Say May Be Used Against You

The first sentence of the press release announcing the New South Wales Government’s changes to the right to silence read: “The scales of justice will be tilted towards common sense.”

Yes, “common sense”.

We should be terrified when professional politicians start talking about common sense. Rights are always undermined by euphemism.

The O’Farrell Government’s right to silence changes passed the NSW Parliament last Thursday. From now on, NSW Police will qualify their standard police caution “you are not obliged to say or do anything unless you wish to do so” with this sentence: “But it may harm your defence if you do not mention when questioned something you later rely on in court.”

In other words, you’re welcome to stay silent, but you might regret it.

Juries will be allowed to “draw an unfavourable inference” from the fact that somebody decided to remain silent before a case got to court.

Courts have identified two parts of the right to silence. The first is your right to say nothing when being questioned by the police. The NSW reforms do not directly remove the right in this first sense.

The second part is the right not to have that silence used against you at trial. And it is this right that has been comprehensively trounced by the changes.

What good is a right if you are told you could well be punished for using it? The second part of the right to silence gives substance to the first part. It is disingenuous to suggest otherwise.

Most serious analyses of the right to silence are done by legal academics. Understandably, they focus on how judges and courts understand the right. So we get a lot of discussion about famous cases and High Court appeals and jury instructions.

But much of this misses the point. The Government has been transparent about what it believes the purpose of its reforms are – not to alter the way courts think about the right to silence, but how accused people think about it.

A police interrogation is presumably an uncomfortable occasion, whether you are guilty or innocent. When the facts of a case are unclear, the accusation is unclear, the accused may be confused, intimidated, and off-balance, the new standard police caution becomes little more than bullying. How are they supposed to know what they will later rely on in court? How specific will they have to be?

What was originally an unambiguous protection for people accused of a crime – if you are unsure of yourself or out of your depth, stay silent until you can fully consider your legal position – is now vague and imprecise and threatening. The fact that a lawyer must be present is no comfort.

This piece in the Conversation on Friday makes it clear how devilishly complex removing the right to silence can be. The NSW changes are based on a similar reform in the United Kingdom back in 1994. The new doctrine has become a “notorious minefield”, yet has had no effect on conviction rates.

The right to silence is one of the more unloved rights. It is being slowly written out of the legal canon.

The police don’t like it. One paper published in 2000 in the Australian Federal Police magazine argues that the development of the right to silence was simply “an over-reaction to tyranny”. That tyranny was the early modern English star chamber, which used torture to coerce suspects to talk.

But then again, there’s probably loads of evidentiary rules and accountability requirements that some police think get in the way of speedy convictions. That a legal protection is often used is no reason to get rid of it.

And politicians don’t like it. Obviously, elected officials adore a good law and order crackdown. The upside gains are huge. Nobody likes crime. The downside risks are tiny. Civil libertarianism doesn’t swing elections. Even federal politicians are desperate to get in on the action. Julia Gillard told Western Sydney she wants to fight gangs. Tony Abbott wants to roll out CCTV surveillance.

The push against the right to silence isn’t limited to criminal procedure. There were no less than eight pieces of legislation passed in the Commonwealth Parliament last year that limited this crucial right. (I wrote about one of those – an anti-illegal immigrant bill – on the Drum in September.)

Earlier this month, the NSW Attorney-General Greg Smith said that the changes would make trials “more efficient”.

What a horrible thought. The entire English criminal system is designed to make it hard to convict someone. What Greg Smith calls inefficiency is better called protection of the innocent.

Grandstanding about mobiles won’t reduce the road toll

It’s an old principle of policing – if you can’t enforce the laws on the books, demand more laws.

More than 55,000 people in Victoria were booked for using their mobile phones while driving last year. That’s around 150 people a day.

So on Monday, the front page of the Herald Sun reported that Victoria’s chief highway patrol cop wanted the government to force drivers to switch their phone off in cars.
Never mind that a ban on phones in cars would be completely unenforceable.

Victorian road rules are clear. The Road Safety Act bans mobile phone use while a car is running. The only exception is receiving calls or using navigation functions with a commercially fitted holder. Even then, the driver cannot touch the phone at any time. The fine is $300 and three demerit points. New South Wales enacted similar laws last week.

Yet one survey suggests around 60 per cent of Victorians still use their phone while driving. That 55,000 people booked isn’t a lot, considering more than two million of the state’s 3.7 million licensed drivers are breaking the rules.

The Herald Sun article said “thousands of rogue motorists flout the law”. No – millions do.

First things first: it is incredibly stupid to use a mobile phone while travelling at speed. Driving is a complex task. Sending a text message on a phone increases the risk of accident up to 23 times. That much is easy to demonstrate in simulations and in-car experiments.

But things get less certain from there.

The “while driving” data is a bit misleading. They include a lot of circumstances we wouldn’t usually call driving – like checking your phone while stopped at a traffic light. But if the engine is running, it counts.

The NSW government commissioned a study into the extent of the problem earlier this year as part of a parliamentary inquiry. The results were striking and counterintuitive.

Seven per cent of accidents in NSW in the last decade involved driver distraction. And within that 7 per cent, only 1 per cent involved a handheld phone.

Don’t get too hung up on the specific numbers. There are many complicated definitional issues. There’s a large body of academic research on driver distraction but it’s not all comparable. And, obviously, the ideal number of accidents is zero, whether related to phones or anything else.

Yet it still remains that mobile phones are extremely small proportion of the causes of distracted driving involved in accidents. The majority of distractions come from outside the car. Then there are those within the car – like fellow passengers, grooming, or eating and drinking.

There are even three times as many accidents involving police pursuit as mobile phones.

The overwhelming majority of accidents involve exactly what you’d expect: speed, fatigue, and drink. Mobile phones hardly rate.

But you wouldn’t know that from the press. Phones dominate the popular discussion of car accidents. Using a phone while driving seems to be the ultimate in recklessness. It is terrifying to imagine there are people speeding down the freeway while tapping out text messages.

Smart phones are a novelty, and novelty makes news. Stories about how mobile phones cause accidents has all the characteristics of a moral panic – a disproportionate reaction to a small problem. Drivers face worse distractions. There are more disconcerting risks on the road.

For instance, one 2005 study found in-car entertainment systems are a far bigger real-world distraction than phones. You have to take your eyes off the road to change a CD or radio station. Handheld phones are problematic not because they impair drivers physically, but because talking while driving takes extra mental effort. It’s the conversation which is dangerous, not the phone. (This explains why some studies have found hands-free phone systems are no safer than hand-held ones.)

These are uncomfortable findings. No politician wants to challenge the right of drivers to chat with passengers or listen to the radio. Anyway, that’s why we have careless driving laws, and take recklessness and negligence into account in criminal accident proceedings.

Nevertheless, there has been a remarkable decline in car fatalities over the past few decades. The Commonwealth government has been tracking road deaths since 1925. Deaths have reduced from 30 per 100,000 population in 1970, to seven in 2008. If anything, that understates the decline: we’re driving twice as much as we did 40 years ago. And the death toll is still going down, even as more people buy more complicated phones.

A society should try not to have too many unenforceable laws. They breed contempt for the law as an institution. If people get used to disobeying one law, they may become comfortable with disobeying others.

As the American writer Radley Balko has argued, calls to increase restrictions on mobile phones in cars aren’t about safety; they’re about symbolism.

It’s already illegal to use phones in the car. Lots of people do it anyway. But political grandstanding about mobiles is not the same as reducing the road toll.

A Crackdown On Illegal Immigrants. Interested? Anyone?

Last week Immigration Minister Chris Bowen introduced a bill into parliament. Had we been any other country on the planet this would have been extremely controversial.

Columns would have been published. Talkback callers would have been enraged. Television panels would have pontificated.

But our immigration debate is peculiar. The Migration Amendment (Reform of Employer Sanctions) Bill 2012 will in all likelihood be ignored.

It shouldn’t be. This legislation significantly increases the penalties for employers who hire “illegal workers” and gives a whole range of new inspection and police powers to the Immigration Department to enforce them.

The bill erodes the right to silence, for one, and establishes powerful search warrants with which immigration officers can enter premises to hunt down evidence of illegal workers.

More broadly, the bill puts meat on a new and punitive immigration regime: it is now the legal responsibility of employers to find out whether the people they hire are entitled to work in Australia.

So yes: a crackdown on illegal immigrants! The stuff tabloid dreams are made of.

Or not. In the Australian consciousness, immigration politics is purely about asylum seekers.

By definition, asylum seekers want authorities to find them. Illegal workers do not. They are people who are working in breach of their visa conditions. They may have overstayed their temporary visas, they may be here on tourist visas, or they might be working more hours than their student visas permit.

It’s hard to measure, but we know there are at least 50,000 illegal workers in Australia. A Government report (PDF) in 2010 suggested it could be as many as 100,000.

That figure is a lot more than the few thousand who have sought asylum in Australia by boat.

Why the disconnect?

Immigration politics is not about quantity but visibility. And our borders are uniquely secure. The twentieth century fantasy of full state control over who enters and exits a country has only come close to realisation in Australia.

Those dinky boats may seem like a threat to our “sovereignty”, but they are actually a demonstration of it. Our high-tech Navy picks them up, and our bureaucrats ploddingly process each one in turn. Every migrant interacts with the system at some point. There are no exceptions.

In almost every other country, borders are far too porous to imagine a government could be this diligent.

So in the United States, the United Kingdom and the richest nations in Europe, it is illegal workers who bear the brunt of the political and public attention. We obsess about the people who want to come here. The rest of the world obsesses about those who already are there.

This focus on asylum seekers means we ignore the great issue of our time: the clash between national borders and an increasingly global employment market.

The Government’s new illegal worker bill is evidence that we are not as isolated as we think. One hundred thousand people is not trivial.

But the Immigration Department’s arguments for why we need to crackdown on illegal workers are unfortunate.

First: if we allow illegal workers to work, our immigration controls will be weakened. In other words, immigration restrictions are needed to maintain immigration restrictions. It gets even more circular from there. Illegal workers are a problem because of “costs associated with locating and removing illegal workers”. Read that one again.

Second: illegal workers “deny Australian citizens and permanent residents the opportunity to obtain a job”. It would be nice if the Immigration Department didn’t endorse the claim that foreigners crowd residents out of the employment market, but, well, there you go. Likewise, we might put aside the claim that illegal workers “may not meet … stringent health and character tests”.

One final argument is the most convincing, but perhaps not in the way it is intended: illegal workers are susceptible to exploitation.

This is undoubtedly true. But it is because those workers face the threat of deportation that they are so vulnerable. The stricter we are about visa overstayers, the more we increase the chances that they will be exploited by unscrupulous employers who threaten to call Immigration if they complain.

We know from international experience that an aggressive pursuit of illegal workers and their employers can create as many problems as it tries to solve.

So that this crackdown on illegal workers is likely to sail through unexamined has nothing to do with its desirability. It is, instead, a window into the strangeness of the immigration debate in Australia.

The Terrifyingly Inscrutable Minds Behind Mass Murders

We still don’t have a good grasp of what drove Eric Harris and Dylan Klebold to massacre 12 of their fellow students and a teacher in 1999.

The Columbine High School killing was one of the most significant domestic acts of violence in the United States in recent decades. It remains an icon of savagery. It has been studied continuously.

Every second of their killing spree has been recreated; every biographical and cultural motive canvassed. Yet as one book, Comprehending Columbine, points out, a decade later there remains “no comprehensive understanding as to why it happened and why it happened where it did.”

No doubt each boy acted for separate reasons. Harris and Klebold had markedly different personalities and different family backgrounds. But despite the enormous amount of written material the killers left for investigators, what turned them from students to mass murderers is still somewhat of a mystery.

School shooters aren’t all as enigmatic as Harris and Klebold. When Evan Ramsey killed two of his fellow Alaskan students in 1997, his motives and pathology were clearer: he had been bullied at school and abused at home.

Yet in the ranks of young killers, there are both bullies and the bullied (Harris of Columbine was in the former camp). Some have been leaders, others followers. Some shooters claim to hear voices in their head. Others are desperate to prove they committed their crimes in perfect, clear sanity.

One recent survey of school shootings concluded that “the particular circumstances of each shooter, each distinct from the last, contribute to a sense of disequilibrium”. There is no clear thread which ties these acts together. And this for a distinct phenomenon, united by a shared location (schools) and shared targets (fellow students and teachers).

Humans want to understand why things happen. We think in terms of cause and effect. But mass murders usually confound explanation.

It is unlikely we will ever fully uncover the “causes” of the massacre committed at the Dark Knight Rises premiere in Aurora, Colorado on Friday. The attempts to derive meaning from atrocities like this are understandable but futile.

It’s a 30-minute drive between Aurora and Columbine High School. The suspected killer, James Holmes, would have been 11 at the time of Harris and Klebold’s rampage.

Yet it was only his victims who lived in the shadow of Columbine. Holmes was raised in California and moved to Colorado to enrol in a PhD. He could not have felt the region’s history as keenly as those he targeted late last week.

But wouldn’t it be more comfortable to understand his actions in that frame? To believe he was the product of a traumatised community, and therefore the shooting had a discernable explanation?
Just as it would be easier to understand Columbine if the killers had been inspired by the music of Marilyn Manson, or given political purpose by an underground neo-Nazi trench coat gang, or were the products of broken homes or bullying.

None of these common explanations hold up to scrutiny. But even if any were true, there would still be Comprehending Columbine’s question of why it happened and why it happened there.

Take one popular account. Yes, Harris and Klebold were passionate fans of the video game Doom, where players shoot monsters from a first-person perspective. And Harris said their upcoming massacre would be “like playing Doom”.

But that’s not much of an explanation for their actions. An estimated 10 million people played Doom at one time in the 1990s. Why did those two boys from Colorado feel compelled to re-enact it?

These little tidbits – we will no doubt hear many about James Holmes – are superficially damning but rarely have any explanatory power.

Yet immediately after word of the Aurora shooting dripped out, there was a long list of candidates for explanations. Hurriedly cobbled together experts blamed bullying. An American ABC News reporter blamed the Tea Party. The Daily Mail blamed Occupy Wall Street. One politician blamed the opponents of Judeo-Christianity. An MSNBC talking head blamed Star Trek.

Those inanities have now ceded to a slightly more considered debate about gun control, but that too seems like an attempt to fill the gap with meaning – to draw a lesson, to impose a narrative.

Our cause-and-effect thinking flatters us that atrocities are problems to be solved. Every shocking event must be followed by a debate. Could tighter gun laws avoid such violence? Surely the best case scenario is it could reduce the number of victims.

The desire to cause horrific violence is likely much stronger than the legislative strength of Washington DC. The uncomfortable reality is these tragedies do not pivot on public policy, but rather on an insane choice, made by an individual, to kill strangers.

Mass murders are a global phenomenon (Wikipedia has a revealing list here). Compared to the United States, gun laws are strict in Norway. So Anders Breivik’s spree killing a few months later did not spark a passionate debate about gun control, despite his shared use of semi-automatic weapons.

There, the story has been about Islamophobia – as Breivik intended it. This is a narrative, imposed by the killer himself, to try to give the event a concrete meaning, and distract us from looking at Breivik’s specific, unique, individual mental world. James Holmes too may try to impose his own justification for his actions.

For some reason we do not seek to “understand” serial killers – who commit their crimes in private over time. Yet like rampage killers, they too can be drawn to their actions by the thrill, or the notoriety, or power over others.

Evil is too easy a word. Nevertheless, if there is an explanation for acts of violence like those in Aurora or Columbine, they will be found not in culture, law, or politics, but in the terrifyingly inscrutable minds of those who choose to murder others indiscriminately.

Freedom Of Association Lost In The Moral Panic

“You are the sort of man this act aims at,” Magistrate Laidlaw told a 30-year-old Sydney man, George Harris, as he sentenced him to six months’ hard labour.

The Vagrancy (Amendment) Act 1929 had been passed by the New South Wales Parliament just a year before. Laidlaw thought the act was fantastic – a “very desirable piece of legislation”, he said in a separate case.

George Harris had violated the act by “habitually consorting with reputed criminals”. He’d consorted with them at Central Station, and he’d consorted with them at Randwick racecourse. Not only had Harris consorted all over Sydney, Laidlaw hastened to point out, but he had been observed consorting “at various times of the night”.

So what sort of man was George Harris? He had a police record more than a decade old, according to the Sydney Morning Herald. That record was spread across Australia and New Zealand.

Yet his offences were relatively minor – theft, vagrancy, and “being a suspected person”. Harris may have been a bad sort, and may have hung around with other bad sorts. But in February 1930, the state of New South Wales imposed six months’ hard labour upon him for mere association. No need to prove that he had stolen anything or assaulted anyone. His relationships were crime enough.

Consorting with convicted criminals was made unlawful in the midst of Sydney’s moral panic over the ‘razor gangs’ – that era of crime luridly but forgettably depicted in Underbelly.

The tabloid newspapers had aggressively called for a crackdown on consorting in order to tackle the gangs. Introducing the anti-consorting laws, the colonial secretary claimed it was a necessary tool to deal with the many people “from other parts of the world” who were “engaged in an orgy of crime in this city”.

But the crime of consorting was, in reality, a catch-all crime that gave police discretionary powers to pull up whoever they liked. The police had to give one warning and then that was it. As the University of New South Wales’ Alex Steel has written, “once the police decided that a person was a criminal, they might proceed to arrest him or her for consorting on any convenient ground.”

This unjust law gave police the power to criminalise what should be protected under freedom of association. It remained with its original strength for half a century, until the New South Wales government tightened up some of its excesses in 1979.

But consorting laws are back. The O’Farrell Government amended them earlier this year to give them more bite. They did so ostensibly to deal with bikie gangs and the recent drive-by shootings. Now even regular email with someone who was once found guilty of an indictable offence is now considered consorting.

Certainly, the amended law offers a few defences against a charge of consorting. For instance, it is legal to consort with someone if you are their lawyer or doctor. But that’s not much consolation. The defences are extremely narrow, and the circumstances in which you could be found to have illegally consorted are extremely broad.

The NSW Young Lawyers society has pointed out consorting would even include football clubs where some members of the team have been convicted of assault. Police could disband a club with one warning. Any players that continued to fraternise with their team mates would face jail. Even if you assume police are at all times noble and dutiful, such powers are obviously – ludicrously – excessive.

The first person was convicted under the amended laws last week. Yet he was not a bikie, but a 21-year-old man the NSW police admits has no link with motorcycle gangs.

It was the same in the 1930s. The police found consorting laws useful to clear the streets of prostitution, but not so useful in clamping down on razor crime. Consorting laws are good for smoothing the wheels of prosecution – if you think the goal of a legal system is to maximise prosecutions. But its ability to prevent or punish serious criminal activity is limited.

Consorting laws are clearly unjust for those accused of consorting. But they are cruel for those who have been convicted and punished for a crime. A malicious police officer could eliminate a released criminal’s freedom of association simply by issuing his friends with a warning.

When governments face law and order problems, the urge to “do something” must be overwhelming. The newspapers call for action. Talkback radio calls for crackdowns. Police call for more police power.

But police and prosecutors already have a long list of offences they can charge, and they have ample powers to do so. Nobody seriously believes motorcycle gangs are an unprecedented threat that a modern legal system is powerless against, yet for some reason everybody acts as if they are.

Benjamin Franklin famously said, “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Freedom of association – a freedom that extends even to those who have in the past been convicted of a crime – is one of those essential liberties.

Tasers: The Non-Lethal Force That Kills

It’s time to stop describing Tasers as “non-lethal” weapons. They are quasi-lethal. At best.

That much should be clear from the death of 21-year-old Roberto Laudisio Curti in New South Wales last week.

The widely broadcast security camera footage shows Curti running away. One police officer in pursuit appears to pause, raise, and fire his Taser’s barbed projectiles at the Brazilian student. Curti stopped breathing shortly after.

If accurate, this incident would clearly be what the NSW Ombudsman warned about in a major report four years ago: Taser use is highly susceptible to mission creep. Nothing in the security footage suggests Curti presented an “extremely high risk” to officers or the public – the grounds for Taser use. From what we can tell, there was no threat or aggression.

But let’s put the specifics of this case aside. There are inquiries by the New South Wales Coroner and NSW Ombudsman which will be looking closely at those.

There is a more basic problem with the use of Tasers.

In the United States, 12,000 law enforcement agencies now carry the weapon. Assessing the evidence collected in that country, the National Institute for Justice (the research wing of the Department of Justice) found in 2011 there is “no conclusive medical evidence” indicating “a high risk of serious injury or death” from Tasers.

That sounds all well and good until you read the NIJ’s caveat: “… in healthy, normal, nonstressed, nonintoxicated persons.”

This is a particularly crucial caveat, as it is dealing with unhealthy, abnormal, highly stressed and blindingly intoxicated persons where Tasers are most useful.

One anonymous police officer wrote in the Punch after last week’s fatality he had “wrestled a lot of drug-affected people and they don’t give up easily. Often a lot of force needs to be used in order to bring them under control.”

More than half of those tasered in NSW between 2002 and 2007 were identified as having drug or alcohol problems, or having been intoxicated at the time of the incident.

A Taser is effective in such situations because it does not rely on pain, or the threat of pain, to compel compliance. The shock delivered through the darts completely incapacitates its target – the electric current overrides the brain’s control of the body and causes the muscles to spasm involuntarily.

So as a policing tool, it is most useful against drug-affected people who display “superhuman” strength.

And that is also exactly the circumstances where the research suggests Tasers are going to be at their most lethal.

This analytical disconnect allows supporters to claim Tasers are much safer than they actually are in practice.

Yet announcing the rollout of Tasers to general duties police in 2008, the Police Commissioner Andrew Scipione said “if this is but one option that gives the police officers in the streets of NSW some alternative rather than to use deadly force, rather than to shoot somebody and killing them, then this is a good option.”

Even our limited experience in Australia shows Tasers don’t replace firearms. The Western Australian Corruption and Crime Commission found they are a substitute for other tools like pepper spray.

Taser use has increased substantially over the last few years in WA, but firearm use has increased as well. This is a phenomenon overseas jurisdictions have discovered too, and it makes some sense. Depending on the environment and the officers’ training, attempts at tasering someone fail 10-20 per cent of the time. If a situation is truly dangerous, police officers use much more reliable guns.

It has been suggested the use of a Taser could have saved the life of the carjacker who was shot in a Parramatta shopping complex on Sunday.

Perhaps. But if the officers in question believed anybody was seriously at risk, a Taser would not have been their response. There is a reason officers still carry firearms.

Tasers don’t always attach to their target properly. The model in use in NSW can only fire once – if the darts miss, the officer has to reload. And in only 35 of 48 incidents studied by the NSW Ombudsman in 2008 were Tasers described as “effective”.

So yes: Tasers are less lethal than firearms, and in some circumstances would be preferable. But that is not how they are actually used. They are now, according to the WA CCC, the “force option of ‘choice'”. And, given the usual profile of individuals which they are used against, Tasers are a more potentially lethal replacement for other non-lethal methods.

Some reports have said Roberto Laudisio Curti was on drugs when he died.

The problem for Taser advocates is to devise a standard of use which recognises first, that Tasers are most useful when for dealing with highly intoxicated individuals and second, they are at their most deadly when doing so.