Criminal Laws Only Deter When They Are Seen as Just

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Justice Australia

Politicians often invoke tough-on-crime rhetoric to win votes – playing to popular perceptions that penalties are too weak and that, when dealing with defendants, magistrates and judges should ‘lock’em up and throw away the key’.

There is also a popular view that the tougher the penalty, the less likely people will engage in crime.

However, research suggests that punishments are unlikely to deter people from breaking laws which are seen as unfair – in other words, the perceived legitimacy of laws is important to determining whether they are likely to deter would-be offenders.

Why is legitimacy important?

The perception of legitimacy in the creators of the law is important in fostering respect and adherence to legal rules – such as those which give rise to criminal offences.

Legitimacy leads to the societal belief that laws should be obeyed merely because they are laws, rather than because they are inherently just.

And while not everyone in a society will agree with all laws, the existence of legitimacy will help ensure adherence because there is a general acknowledgement that the rules are creating fairly and with the interests of the community in mind.

Legitimacy helps to ensure compliance amongst the populace – that victims report crimes, witnesses make truthful statements and decisions of parliament and the judiciary are broadly accepted.

When legitimacy dissipates

Where there is a widespread view that a law – or several laws – are not there for the benefit of society as a whole, it is less likely that they will be adhered to.

For example, many believe that laws against downloading movies and music are there to protect the interests of big business, rather than for the benefit of the population.

The futile and costly war on drugs is another example, whereby many view the consumption of drugs – especially ‘softer’ substances such as cannabis – as a personal choice. Those in favour of legalisation point to the hypocrisy in permitting the consumption of alcohol, tobacco and many dangerous pharmaceuticals whilst criminalising substances which cause less net harm to society.

Such ‘unjust’ laws are often ignored, and widespread disobedience becomes impossible to rectify and can adversely affecting legitimacy.

Perceptions of legitimacy are linked to offending

Research suggests that those who display a higher degree of cynicism towards the law are more likely to break it.

A 2007 2007 study, for example, found that amongst a sample of 1,355 adolescents convicted of a serious offence in Philadelphia and Phoenix, legal cynicism was highly predictive of overall offending.

In a more specified example, researcher Tom Tyler found that when he split drink driving offenders in Canberra, Australia, into groups representing their perception of the legal system, those who were more cynical of the law were far more likely to reoffend.

Among the group which thought the law was highly legitimate, only 3.3% were arrested within the following two years, while 15.6% of those who thought the law was not legitimate were arrested over the same time period.

A 2011 Chicago study examined the effects of legal cynicism on violent crime in disadvantaged communities. The researchers explained that cynicism is an adaptation to structural disadvantage, and cynical attitudes significantly increase the likelihood of offending.

They found that in neighbourhoods where residents were more cynical towards the law, homicide was higher at a statistically significant rate.

Each of the studies found that it is important for deterrence purposes to ensure that laws are accepted as just and fair.

Ineffectiveness of harsh penalties

Professor Daniel Nagin suggests that high incarceration rates produce “stigma erosion,” where harsh punishment become less effective the more they are imposed.

Nagin explains that the situation is compounded where people are punished for offences resulting from a “rigged game”; where they are set up for failure due to their disadvantaged circumstances.

Another study by researcher Tom Tyler found that perceptions of legitimacy are a stronger predictor of compliance with the law than perceptions of deterrence.

He found that, when other inhibitions are strong (such as one’s moral beliefs), the deterrent effect of possible punishment are irrelevant to whether adolescents and young adults engage in criminal conduct.

Why people de-legitimise the legal system

Perceptions of legitimacy can be adversely affected by a range of factors – including socioeconomic disadvantage which can result in lack of access to education, employment, housing and representation in the criminal justice system.

It was revealed last year that in Australia, community legal centres are turning away 160,000 people a year due to lack of resources. And also more than 13 percent of people in Australia live below the poverty line, legal aid is only available for 8 percent.

The Law Council of Australia reports that at least 5,000 people were refused assistance from Legal Aid Commissions between 2009 and 2014. The report emphasised that the shortfall was the direct result of decades of cuts, explaining that Australia now spends half of what the UK does per capita on legal aid.

And data released in 2012 by the Australia Institute suggests that 88% of Australians agree that “the legal system is too complicated to understand properly”. 83% agree “only the very wealth can afford to protect their legal rights.” A 2003 study of 500 indigent defendants found that less than half of those who applied for legal aid were successful.

The bottom line is that if our federal and state governments want laws to be obeyed, they should ensure the rules are fair and just, and that those who face legal proceedings have adequate access to legal representation.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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