If you’ve lived in NSW at an election, you’re probably used to the consistent scaremongering of both parties participating in a law and order auction. One will promise legislation that will ‘better tackle yobs’ the other will say they’ve budgeted an increase of hundreds of officers to enforce the law. More often than not these ‘auctions’ are used to make full throated guarantees that ‘roadblocks’ to better law enforcement will be removed so the ‘police can do their job’.
Over the course of the past 15 years in NSW we’ve seen a removal of unanimous jury verdicts, double jeopardy laws, changes to make bail harder to obtain and many other creeping assaults on hard-won liberties and legal processes in response to media fury over problems that have generally been concocted. We’re seeing another proposed law an order auction recently in NSW, over restricting a suspect’s ‘right to silence’ when being investigated by the police. Of course the language of the article proposes that this modification to the laws will only be used against hardened gangsters - instead of used to give police even more powerful a tool to potentially gaol the innocent. The right to silence is a hard-won right and one that should not be freely given away. Giving police the power to compel people to speak flies in the face of hundreds of years of legal precedent and is absolutely needless when, on almost every metric crime rates have been going down.
Furthermore, a lot of this law and order auction charade is not based on any evidence or any effective policy, but is pure, focus-tested bullshit. This may work well with voters but the incredibly negative impact on the most vulnerable sections of our society are quite easily demonstrated. The dismantling of our civil liberties and the impacts on those most vulnerable shows that the politicians and the police association don’t care much for justice but want only marketable retribution. What we’ve seen in NSW and even in Australia are fairly small breaches, comparatively (If you consider the wholesale shredding of civil institutions like unanimous juries to be minor breaches), to some of the things going on in the USA. This is not meant as a criticism of the USA per se, but rather as an indication of the natural trend of these policies towards a more draconian interaction between the justice system and the people, and the horrific unintended consequences these policies can have.
In the USA, a very similar (if not slightly more robust) approach to a law and order auction at both a state and a federal level (particularly in relation to drug policy), means that police officers are given incentives to arrest people, even for minor crimes. This includes police going as far as to plant drugs on people to meet drug war quotas. These incentives (many of them federally granted in partnership with the DEA) mean they also are better funded and receive bonuses for arresting small time drug users, rather than following up more violent crimes. Not only that, but in drug related crimes, police departments can substantially boost their budgets by confiscating and auctioning property they allege was used in the process of committing said drug crimes. All of this money and life is wasted for a policy that even a US Senate subcommittee has admitted has ‘failed’.
The impacts of a law and order auction are quite easily quantified in terms of cost, but impossible to quantify in terms of the tears and blood shed by the victims of those policies. To put this into perspective, imagine if you were a young black male who had drugs planted on you by a police officer in NYC. The entire deck is stacked against you, there is really nothing you can do but plead guilty as a judge would factor that into a reduction of your sentence. To call that justice is not just laughable, it is evil. An entire system has been created to force the young and vulnerable into the grinder of a justice system that is unconscionably weighted against them. To say this system is law and order in action cheapens the concepts of both law (and the notion of justice that underpins it) and order.
A similar call has been for sex offenders registries, again from the same media sources (I won’t bother to link at this stage, it gives them a degree of import they honestly don’t deserve). Many of the states in Australia have these registers but a further call has been made to make these registries public information. I don’t have to explain why that’s probably a pretty bad idea, yet the calls still come. There is no doubt that some of these individuals have committed unspeakable crimes, but judges and prosecutors are hamstrung by legislation that requires individuals convicted of crimes such as urinating in public to be registered as sex offenders. When even Human rights watch thinks the system should be done away with, you know you’re not pursuing good public policy.
The most heinous elements of these registries are the restrictiveness of the laws and elements of the legislation that do not give judges leeway in sentencing and post-sentencing requirements. This link outlines the horrors of sex offenders lists and more importantly how truly evil they can be when the legal system has no discretion in their use. To think this is a US problem alone is false, it’s happening here in NSW. Note well:
This applies even when an offence such as sexual intercourse with a minor was consensual (in some cases the couples later married), in cases of obscene exposure, and when the magistrate has decided to record no conviction.
Anyone claiming that this sort of thing doesn’t or couldn’t happen here is either ignorant or a liar.
Making the primary criterion of policing policy not evidence, but whether it focus groups well is warping the whole concept of justice and destroying thousands of years of precedent for popular support. Vandals are selling our core liberties to be a footnote in historical texts and we’re encouraging them to do it. We’re voting for it. We’re tacitly supporting it and the media is helping it all happen. Sullying what justice actually means for the sake of pleasing a mob with pitchforks shows that our approach is broken and appallingly so. Politicians are continuing to erode the separation of powers by hamstringing the legal system with mandatory minimums, modifications to legal process (such as majority juries) [tacitly attempting to undermine jury nullification of course] and many other pernicious attacks that are destroying our social concepts of justice. They use the imagery of activist judges and the like to justify draconian legislation that attacks at the heart of a liberal society. We have a great and hard-won legal tradition that is supposed to enshrine our legal rights and maintain the presumption of innocence until we are proven guilty. By tearing up these precedents, we make even greater victims of the most vulnerable people in society. Lady Justice is supposed to be blind and evenhanded, but all a law and order auction does is weight the scales even further in favour of the state.