Good Criminal Policy Is Good Social Policy

By: Opinion

THE adoption of criminal laws prescribing peremptory minimum sentences is becoming more and more fashionable as a means of Namibian criminal justice policy.

Reasonable minimum sentences may be justified, i.e. regarding

sexual violence, in particular if in line with international

research it is recognized that the underlying psycho-structural

factors contributing to acts directed against the (sexual)

self-determination, can often not be eliminated without lengthy

interventions through cognitive-behavioural programmes.

This line of argument cannot, however, be applied through the

bench to just any other criminal act.

 

If one considers the merits of minimum sentences one finds

basically two lines of argument.

 

The first one is based on retribution, and follows the principle

quid pro quo.

 

The other is built on utilitarian theory, which holds that human

beings are rational actors who balance cost and benefits when

choosing and enacting their intentions.

 

This is deterrence theory, or the hope that deterrence will

prevent specific unwelcome acts in the future.

 

The first argument limps often at first sight.

 

It is for instance not intelligible that the theft of a cow,

worth N$1500, warrants the imposition of a minimum imprisonment of

twenty years.

 

This is a case for constitutional review, not only because it

violates the principle of proportionality; it should be possible to

invoke also a violation of the constitutional right to equality in

terms of Article 10 of the Namibian Constitution Although we cannot

pre-empt the court's decision, the High Court should find

sufficient arguments to declare the minimum sentence imposed by the

Grootfontein Magistrates Court, and the relevant provision of the

Stock Theft Act on which it is based, unconstitutional.

 

The construction of our modern constitutional law must match the

requirements for reasonableness.

 

The law does not live by its wording alone, and in particular

constitutional law is more than what can be found in the text of

our constitution.

 

In our context it does not contain any express prohibition of

minimum sentences.

 

But modern legal theory, and here in particular the research

work done in recent years at the Research Unit for Constitutional

and Legal Interpretation (RUCLI; University of Stellenbosch and

University of the Western Cape) has put forth that a dynamic,

holistic and integrative construction of the constitutional order

against the backdrop of social data and the expert interpretation

of such data by acknowledged and renowned scholars is required.

 

As will be argued in the following, such facts and data make a

strong case against deterrence theory in general and the minimum

sentence in terms of the Stock Theft Act in particular.

 

When it comes to criminal justice, which is always a mirror of

social justice, the state, in this case the courts, imperatively

has to take note of the social facts relevant to the construction

of values, principles and rules.

 

In the context of the quest for the merits of deterrence theory

social facts and their understanding by scholars of criminology

cannot be ignored.

 

Should research results reveal that deterrence fails, totally or

partially, deterrence theory should lose much of its persuasiveness

within the Criminal Justice System (CJS).

 

This should also have a normative consequence, and inform the

answer to the constitutional law question whether, and to what

extent deterrence may be retained as permissible policy

measure.

 

For any judge adjudicating at constitutional level, it is thus

necessary to become aware and truly acquainted with entrenched

criminological knowledge.

 

The point in question is What do we know about deterrence? It is

interesting to note that according to longstanding criminological

research deterrence works much differently from the layman's

perception.

 

Fact is that it works! But the data are intriguing, because

deterrence does not really work on the criminals who are at the

receiving end of the law - deterrence works rather on the average

law abiding citizen already deterred by previous learning and

social sanctions!! How can that be explained? Modern action theory

has developed classical utilitarian theory, which assumed that the

existence of any item of human behaviour is prima facie evidence

that its benefits exceed its costs (Bentham, 1789) towards an

expectancy x value/utility model: The largely heuristic model

presupposes that among a number of action alternatives in the

environment of an actor, the selected action will be the action,

which yields the highest utility.

 

The actor considers the probability of intended

consequences/outcomes, thus we talk about expectancy, and the

weight of this outcome against the outcome of other alternatives,

hence the word utility.

 

Now, three crucial facts could be established through rigorous

testing since the 1970s: First, short-term (pleasures) and

long-term (pains) consequences of one's actions are differentially

time-discounted depending on the current situation of individuals

and personality of the actor; second, the huge majority of criminal

acts are governed primarily by short term pleasures and only

secondarily - if at all - by the threat of long term pains; third,

the capacity of balanced consideration of short-term and long-term

consequences depends on adequate socialization during early

childhood, i.e., long before the age of 10.

 

It is more than 30 years ago that the now famous late

criminologist Marvin E. Wolfgang could first demonstrate that about

5% of offenders from a birth-cohort account for approximately 60%

of all crimes committed.

 

These findings have been replicated many times since then, and

today we know that this small group of offenders usually lacks the

capacity to make balanced decisions, due to unfavourable childhood

development.

 

Another much replicated piece of research by Hans-Joerg

Albrecht, the director of the Max-Planck Institute for foreign and

international Criminal Law (Freiburg i.Br./Germany), proved in the

1980s that the escalation of punitive sanctions imposed on

recidivists has no significant preventive effect on the above

mentioned offender group.

 

What these findings tell us, counting one and one together, and

with a bearing on our considerations as to minimum sentences for

stock theft, is that crude punishment does not work as an

additional measure of crime prevention.

 

The analysis of police dockets on stock theft will most probably

show that persons involved are usually originating from a socially

and economically disadvantaged layer of society.

 

Admittedly, organized crime may occasionally be involved.

 

However, those caught red-handed are usually individuals not

living on the sunny side of life, and their typical biographic data

and personality traits are most often associated with a here and

now orientation, dragging negative short- and long-term

consequences out of the action equation.

 

In conclusion, it can be said that harsher punishment does not

prevent the precise criminal act any better, because the majority

of tried criminals are not able to consider the harsh consequences

in the decision making process leading to the criminal act.

 

On the other hand, any disproportionate punishment is also not

necessary to deter the ordinary citizen, because on average,

citizens are already deterred by previous learning and social

sanctions, i.e. lesser means.

 

If our Government introduced the Stock Theft Act under the

banner of crime prevention, with an aim to stem the "tide of

crime", it has not made its homework.

 

It has seemingly not understood that good criminal policy is not

equal to a threat of "locking them up".

 

This lesson could have been learned with the otherwise much

commendable Combating of Rape Act of 2000.

 

Although long time lobbied for, and widely published, the

adoption and judicial application of the latter has not had any

significant impact on the incident of sexual violence - partly for

the reasons set out above.

 

Also the US-American experience with deterrent tools like

Megan's law, "three strikes and you are out"-policy, boot camps

etc, could have shown that deterrence does not work the way it is

hoped for.

 

"Get tough on crime"-policies have, nowhere on the globe had the

desired effects.

 

When the USA got "tough", with huge opportunity costs for social

policy and social welfare budgets, prisons got extremely full, but

crime statistics didn't go down; they blew up.

 

Governments proposing deterrence blindfold their electorate.

 

They suggest that there are cheap means to get crime under

control.

 

But the intuitive, "instinctive" lay-conception that best and

simplest criminal policy has to make criminal behaviour so

expensive that a reasonable human actor would refrain from choosing

it is grossly wrong.

 

Strangely enough it is yet more persuasive to our Namibian

law-makers than are the results of carefully executed empirical

research.

 

But good criminal policy is good social policy, and this is not

shifting the problem to another field.

 

Despite complex results, research documents the connection

between unemployment and crime.

 

Governments should thus undertake to create decent-paying jobs

for the poor.

 

In line with social disintegration theory governments should

undertake more measures to restore the social integration and

strengthen the social institutions of neighbourhoods, concentrating

on children and adolescents.

 

Regarding the objectives of the Combating of Rape Act of 2000

society at large should change male socialisation practice so that

notions of masculinity move away from violence and other

criminogenic attitudes and values.

 

Yes, this is a Herculean task given that following independence

and the growing exposure of the Namibian economy to global

competition, the country drifted into a somewhat anomic situation,

which could not be remedied yet.

 

However, deterrence through disproportional punishment doesn't

work on those who due to unfavourable childhood development

discount the long-term consequences of their acts and thus select

themselves into criminogenic situations.

 

From a sociology-of-law point of view and given the compelling

results of criminological research, extreme minimum sentences are

senseless, and have to be discarded at constitutional level.

 

The disciplinary facts around this case against deterrence

theory can be obtained through scholarly studies, which should

include the following:

 

1. A General Theory of Crime (Michael R. Gottfredson and Travis

Hirschi, 1990);

 

2. Criminology - A sociological understanding (Steven E. Barkan,

1997).

 

The first source, though heavily disputed for its

confrontational style of presenting the facts, is possibly the most

valuable key to further sources.

 

For its brilliance and sophistication it has become the most

widely cited book on criminology of the 1990s.

 

The aetiology of crime is certainly more complex than could be

dealt with here, but no judicial officer dealing with questions of

criminological importance should ignore the rich arguments put

forth in both works, which are available at the Department of Legal

Studies of the Polytechnic - Namibia's University of Science and

Technology.

 

* The author of this opinion piece, Stefan Schulz, is Deputy

Director of Criminal Justice Studies at the Polytechnic of

Namibia

 

This line of argument cannot, however, be applied through the bench

to just any other criminal act.If one considers the merits of

minimum sentences one finds basically two lines of argument.The

first one is based on retribution, and follows the principle quid

pro quo.The other is built on utilitarian theory, which holds that

human beings are rational actors who balance cost and benefits when

choosing and enacting their intentions.This is deterrence theory,

or the hope that deterrence will prevent specific unwelcome acts in

the future.The first argument limps often at first sight.It is for

instance not intelligible that the theft of a cow, worth N$1500,

warrants the imposition of a minimum imprisonment of twenty

years.This is a case for constitutional review, not only because it

violates the principle of proportionality; it should be possible to

invoke also a violation of the constitutional right to equality in

terms of Article 10 of the Namibian Constitution Although we cannot

pre-empt the court's decision, the High Court should find

sufficient arguments to declare the minimum sentence imposed by the

Grootfontein Magistrates Court, and the relevant provision of the

Stock Theft Act on which it is based, unconstitutional.The

construction of our modern constitutional law must match the

requirements for reasonableness.The law does not live by its

wording alone, and in particular constitutional law is more than

what can be found in the text of our constitution.In our context it

does not contain any express prohibition of minimum sentences.But

modern legal theory, and here in particular the research work done

in recent years at the Research Unit for Constitutional and Legal

Interpretation (RUCLI; University of Stellenbosch and University of

the Western Cape) has put forth that a dynamic, holistic and

integrative construction of the constitutional order against the

backdrop of social data and the expert interpretation of such data

by acknowledged and renowned scholars is required.As will be argued

in the following, such facts and data make a strong case against

deterrence theory in general and the minimum sentence in terms of

the Stock Theft Act in particular.When it comes to criminal

justice, which is always a mirror of social justice, the state, in

this case the courts, imperatively has to take note of the social

facts relevant to the construction of values, principles and

rules.In the context of the quest for the merits of deterrence

theory social facts and their understanding by scholars of

criminology cannot be ignored.Should research results reveal that

deterrence fails, totally or partially, deterrence theory should

lose much of its persuasiveness within the Criminal Justice System

(CJS).This should also have a normative consequence, and inform the

answer to the constitutional law question whether, and to what

extent deterrence may be retained as permissible policy measure.For

any judge adjudicating at constitutional level, it is thus

necessary to become aware and truly acquainted with entrenched

criminological knowledge.The point in question is What do we know

about deterrence? It is interesting to note that according to

longstanding criminological research deterrence works much

differently from the layman's perception.Fact is that it works! But

the data are intriguing, because deterrence does not really work on

the criminals who are at the receiving end of the law - deterrence

works rather on the average law abiding citizen already deterred by

previous learning and social sanctions!! How can that be explained?

Modern action theory has developed classical utilitarian theory,

which assumed that the existence of any item of human behaviour is

prima facie evidence that its benefits exceed its costs (Bentham,

1789) towards an expectancy x value/utility model: The largely

heuristic model presupposes that among a number of action

alternatives in the environment of an actor, the selected action

will be the action, which yields the highest utility.The actor

considers the probability of intended consequences/outcomes, thus

we talk about expectancy, and the weight of this outcome against

the outcome of other alternatives, hence the word utility.Now,

three crucial facts could be established through rigorous testing

since the 1970s: First, short-term (pleasures) and long-term

(pains) consequences of one's actions are differentially

time-discounted depending on the current situation of individuals

and personality of the actor; second, the huge majority of criminal

acts are governed primarily by short term pleasures and only

secondarily - if at all - by the threat of long term pains; third,

the capacity of balanced consideration of short-term and long-term

consequences depends on adequate socialization during early

childhood, i.e., long before the age of 10.It is more than 30 years

ago that the now famous late criminologist Marvin E. Wolfgang could

first demonstrate that about 5% of offenders from a birth-cohort

account for approximately 60% of all crimes committed.These

findings have been replicated many times since then, and today we

know that this small group of offenders usually lacks the capacity

to make balanced decisions, due to unfavourable childhood

development.Another much replicated piece of research by Hans-Joerg

Albrecht, the director of the Max-Planck Institute for foreign and

international Criminal Law (Freiburg i.Br./Germany), proved in the

1980s that the escalation of punitive sanctions imposed on

recidivists has no significant preventive effect on the above

mentioned offender group.What these findings tell us, counting one

and one together, and with a bearing on our considerations as to

minimum sentences for stock theft, is that crude punishment does

not work as an additional measure of crime prevention.The analysis

of police dockets on stock theft will most probably show that

persons involved are usually originating from a socially and

economically disadvantaged layer of society.Admittedly, organized

crime may occasionally be involved.However, those caught red-handed

are usually individuals not living on the sunny side of life, and

their typical biographic data and personality traits are most often

associated with a here and now orientation, dragging negative

short- and long-term consequences out of the action equation.In

conclusion, it can be said that harsher punishment does not prevent

the precise criminal act any better, because the majority of tried

criminals are not able to consider the harsh consequences in the

decision making process leading to the criminal act.On the other

hand, any disproportionate punishment is also not necessary to

deter the ordinary citizen, because on average, citizens are

already deterred by previous learning and social sanctions, i.e.

lesser means.If our Government introduced the Stock Theft Act under

the banner of crime prevention, with an aim to stem the "tide of

crime", it has not made its homework.It has seemingly not

understood that good criminal policy is not equal to a threat of

"locking them up".This lesson could have been learned with the

otherwise much commendable Combating of Rape Act of 2000.Although

long time lobbied for, and widely published, the adoption and

judicial application of the latter has not had any significant

impact on the incident of sexual violence - partly for the reasons

set out above.Also the US-American experience with deterrent tools

like Megan's law, "three strikes and you are out"-policy, boot

camps etc, could have shown that deterrence does not work the way

it is hoped for."Get tough on crime"-policies have, nowhere on the

globe had the desired effects.When the USA got "tough", with huge

opportunity costs for social policy and social welfare budgets,

prisons got extremely full, but crime statistics didn't go down;

they blew up.Governments proposing deterrence blindfold their

electorate.They suggest that there are cheap means to get crime

under control.But the intuitive, "instinctive" lay-conception that

best and simplest criminal policy has to make criminal behaviour so

expensive that a reasonable human actor would refrain from choosing

it is grossly wrong.Strangely enough it is yet more persuasive to

our Namibian law-makers than are the results of carefully executed

empirical research.But good criminal policy is good social policy,

and this is not shifting the problem to another field.Despite

complex results, research documents the connection between

unemployment and crime.Governments should thus undertake to create

decent-paying jobs for the poor.In line with social disintegration

theory governments should undertake more measures to restore the

social integration and strengthen the social institutions of

neighbourhoods, concentrating on children and adolescents.Regarding

the objectives of the Combating of Rape Act of 2000 society at

large should change male socialisation practice so that notions of

masculinity move away from violence and other criminogenic

attitudes and values.Yes, this is a Herculean task given that

following independence and the growing exposure of the Namibian

economy to global competition, the country drifted into a somewhat

anomic situation, which could not be remedied yet.However,

deterrence through disproportional punishment doesn't work on those

who due to unfavourable childhood development discount the

long-term consequences of their acts and thus select themselves

into criminogenic situations.From a sociology-of-law point of view

and given the compelling results of criminological research,

extreme minimum sentences are senseless, and have to be discarded

at constitutional level.The disciplinary facts around this case

against deterrence theory can be obtained through scholarly

studies, which should include the following: 1. A General Theory of

Crime (Michael R. Gottfredson and Travis Hirschi, 1990); 2.

Criminology - A sociological understanding (Steven E. Barkan,

1997).The first source, though heavily disputed for its

confrontational style of presenting the facts, is possibly the most

valuable key to further sources.For its brilliance and

sophistication it has become the most widely cited book on

criminology of the 1990s.The aetiology of crime is certainly more

complex than could be dealt with here, but no judicial officer

dealing with questions of criminological importance should ignore

the rich arguments put forth in both works, which are available at

the Department of Legal Studies of the Polytechnic - Namibia's

University of Science and Technology.* The author of this opinion

piece, Stefan Schulz, is Deputy Director of Criminal Justice

Studies at the Polytechnic of Namibia

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