Pros and Cons - Debbie Newman, Ben Woolgar 2014
Community sentencing
Section G. Crime and punishment
Most legal systems that allow local communities to play a prominent role in sentencing limit this right to relatively cohesive and isolated indigenous or religious communities, but there is no reason in principle that this must be so. A crucial distinction is made between setting the law, conducting the trial to see if a suspect is guilty, and then sentencing; these debates only allow the local community in at the final stage, while retaining the state’s power to set the law and administer it. However, there are profound implications in those areas as well. The most prominent example is ’sentencing circles’ in Australia and Canada, where judges sit with indigenous elders to determine sentences and explain them to both offender and victim. Such circles often take into account different considerations from normal courts focusing on healing and restoring the community rather than a strict emphasis on retribution.
Pros
[1] The main damage done by a crime is done, after that to the victim, to the community in which it is committed; any secondary impact on ’the state’ is minimal. As such, it should be up to the community to determine appropriate sentences, rather than judges who may have little or no involvement with the real lives of those affected by crime. This can cut both ways. Communities may want to punish some crimes more harshly; for instance, gun crime in a neighbourhood where those offences are especially prevalent might be seen as a particularly serious crime. But equally, they may want to display more mercy; poor areas might display greater understanding about burglary driven by desperation, for example.
[2] The world contains many different moral value sets, and the state should be less stubborn about privileging one at the expense of all others. Many indigenous communities do not have firmly fixed conceptions of ’rights’, but instead think of moral relationships in a more community- focused way, which places special emphasis on mercy and restoration of past relationships. The state should be more open to bringing these moral concepts into its operations, especially where all the parties understand them better.
[3] These punishments will be more effective. Often, minority communities feel disconnected from the justice system, because its primary role in their lives is the arrest and prosecution of their young men. As such, they have little respect for the justice system, and so do not acknowledge the moral force of its punishments. Community sentencing makes it more likely that both the offender and his/her community will acknowledge the punishment as valid, making re-offending less likely.
[4] Mainstream justice in these societies is far from perfect; indeed, often its emphasis on retribution over rehabilitation is substantially flawed. The justice system potentially has much to learn from other value systems. It is not enough merely to listen to them; they must be seen to be put into practice and experimented with, in order that the lessons from them can be seen in action and then deployed by judges and juries in all courts.
Cons
[1] The state depends for its legitimacy on the ability to enforce its laws, and this policy undermines that. While the law may remain the same, it is only meaningful if punishment follows a breach. Here, the state loses its power to punish breaches of particular laws, and so risks individual communities weakening the state’s ability to prevent certain social harms. Moreover, because different areas will choose to punish things differently, this creates ’patchwork justice’, where a crime may be punished more harshly in one area than in its neighbour, which is dangerous and illogical.
[2] The state also loses the power to protect internal minority groups. Sentencing circles may reflect biases against a ’minority within a minority’, such as the ’Native Freeman’ in the USA, who are the descendants of African-American slaves that belong to Native American groups, so crimes against them will be punished less harshly. Moreover, it may simply be that certain crimes are ignored within a community; for instance, if a community decides to sentence rape less harshly, then women are left vulnerable within that group. This also means that the state loses its power to propel social change; if a minority group lags behind mainstream society in reducing homophobia, they may also punish homophobic violence less harshly.
[3] Rather than improving relations with these groups, this policy undermines these groups’ relationships with the state, by emphasising their cultural and social differences. This sends the message that those differences are so deep that they cannot be contained by the criminal justice system. If we need separate sentencing, why not also have separate police forces and courts? This proposal will ultimately increase crime, as minority groups become less willing to avail themselves of the justice system altogether.
[4] Such sentencing powers actually risk doing significant damage to cohesion within these communities, as it is far from clear who is to control these sentencing powers, or how they will do so. If it is elected leaders in these communities, then those elections will become vastly more intense, and may spill over into violence. But more dangerous still is the possibility that decisions will be made on familial or patrimonial lines, based on traditional connections, rather than as a fair reflection of the group’s beliefs.
Possible motions
This House believes that criminals should be sentenced in their communities rather than in the courts.
This House would allow indigenous groups to sentence their own.
This House supports sentencing circles.
Related topics
Judges, election of
Jury trials, abolition of
Mandatory prison sentences
Zero tolerance
Right to bear arms