Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

I welcome this legislation. The Social Democrats will be supporting it.

In 2007, the then Minister, Senator McDowell, introduced the Criminal Justice Bill to the Dáil. The Bill was explicitly put forward to, in the then Minister's words, "send a clear and unambiguous message" to organised criminal gangs. How effective these methods would actually be were questioned at the time, as was the Government's decision to impose a guillotine to fast-track the Bill through both Houses over a period of a few weeks before a general election. There was not adequate time for the Bill to be debated, or for legal and human rights groups to examine the measures. In particular, the then Irish Human Rights Commission did not have time to look at the Bill, as it was empowered to do by law. This was yet another example of rushed and reactive legislation. We need to learn from these mistakes and to properly engage with a process. Pre-legislative scrutiny has been introduced since 2007 and when it is well done, it really adds to the legislation. Understandably, the past year has been fairly difficult in that regard.

The criminal justice system is the cornerstone of our democracy. Changes to it need to be well drafted and well considered and we need to bring in opposing voices as well. If there is an area of legislation that should not be subject to guillotine it is criminal justice. The consequences of inadequate scrutiny of legislation are obvious. They are certainly obvious with regard to this legislation and what will transpire in respect of reviewing sentences.

We are here today due to the Supreme Court ruling which concluded that mandatory minimum sentences for second or subsequent offences are unconstitutional. In her judgment, Ms Justice Finlay Geoghegan stated that the Oireachtas impermissibly crossed the divide in the constitutional separation of powers and sought to determine the minimum penalty which must be imposed by a court, not on all convicted of an offence but on that limited group of people who had committed an offence for a second or subsequent time.

When we see policies such as this in relation to sentences imposed on individuals who have committed a previous offence, the obvious example which comes to mind is America's three-strike rule. There was abundant evidence regarding the disastrous effects of this type of legislation in 2007, when this legislation was enacted. The negative effects of the three-strike rule was even referenced by the then Minister. It was not referenced as a negative but it was certainly referenced by the then Minister in bringing the legislation forward.

The introduction of mandatory minimum sentencing in the US contributed to the most dramatic period of prison expansion ever recorded, where the national prison population grew from approximately 300,000 in the early 1970s to approximately 2.3 million people today, disproportionately impacting in particular the black and Hispanic communities. America has 5% of the world's population but 25% of the prison population. One in seven American men will have been in prison. It may well be for short durations but that is quite an extraordinary statistic.

The US has begun to turn away from mandatory minimum sentencing and yet we continued to walk down this well-worn track, despite the evidence pointing against it. There can be a general perception that judges and the justice system go easy on offenders and it is an opinion that is shared by many Members of this House. However, many trends suggest judges are becoming more punitive, certainly at least in terms of some types of crime. Figures published in The Irish Timesrecently show that people found in possession of large quantities of drugs are twice as likely to face jail time as they were ten years ago. The length of life sentences has been on an upward trend and the proportion of short sentences for minor crimes has increased by a third.

Our own expert groups have resisted for decades the policy of mandatory sentencing for decades. The Law Reform Commission, in its 1996 report on sentencing, recommended that minimum and mandatory sentencing be abolished and repeated this call in its report on mandatory sentencing in 2013. In its report, the commission recognised the emotional appeal of mandatory sentences. It certainly looks like an easy fix. It gives the impression that one is being tough on crime but, in fact, the impression is not enough. We need to look at the evidence of where the solution is.

Proponents of this policy generally believe that mandatory sentencing will make sentences more consistent and predictable and the arguments often portray a level of distrust in the Judiciary. It is thought that mandatory sentences might send a message to criminals showing that these acts will not be tolerated and so would deter crime. There is little evidence to support this view when one looks at the rates of crime. Mandatory minimums are an incredibly blunt legal instrument, applying the same sentence to all offenders who have committed the same crime. The potential for injustice is quite considerable.

Providing trial judges with discretion in sentencing would not necessarily mean that the person in front of the judge serves less prison time but it would mean that the trial judge could make an assessment of the appropriate length of time that the offender should serve based on all of the information available which, of course, would not be available to us when we are framing the legislation. In relation to the existing provisions in the Misuse of Drugs Act, for example, people who are engaged as drug mules are sometimes more vulnerable or maybe foolish people who face addiction themselves and may be found to be importing large quantities of illegal drugs on the direction of others, who may face a lesser charge or may not be brought to justice at all. That is not to say that there should not be a punishment for that.

There is also, frankly, little evidence that mandatory sentencing deters crime. In the US, where a large proportion of states have mandatory minimum sentencing, the crime rate has been little affected. It does not appear to translate in that respect.

It seems whenever any form of crime becomes a public controversy, the debate shifts back to mandatory minimums as a simple way of dealing with crime or presenting a solution. During the election campaign last year, the Minister of State, Deputy James Browne's party, Fianna Fáil, promised mandatory minimum sentencing for knife possession. It is not uncommon to hear statements that suggest these sentences are the only possible way we can tackle a particular crime.

The fact the policy was redundant was simply ignored. It sounded like it was the business but we all have to be very careful not to reinforce bias, particularly when something cannot be introduced because it is, for example, unconstitutional. Judges and members of the legal profession often go to great lengths in this country to circumvent mandatory minimum provisions and in some cases, they do so to avoid an injustice. Ironically, mandatory sentencing does not generally achieve consistency in sentencing but increases its arbitrariness, where judges attempt to avoid imposing an unjust sentence on an individual.

Section 15(a) of the Criminal Justice Act, 1999, introduced the offence of possession of drugs for sale or supply with a value of more than €13,000. The law set a minimum sentence of ten years in jail, although judges could impose lesser sentences in cases involving "exceptional" or "specific circumstances". In Ireland, Circuit Court judges generally do not impose the ten year minimum sentence in respect of drug trafficking and, indeed, have faced a lot of public criticism for this. Judges have interpreted this provision in a broad manner from the beginning. Co-operation with gardaí or a guilty plea may be deemed "exceptional" circumstances and so the majority who are convicted do not receive the minimum sentence, even though it is laid down in law. Co-operation with An Garda Síochána can lead to people who are higher up the criminal food chain being identified and brought to justice, which is obviously of value in terms of making communities safer.

In 2013 the Law Reform Commission reported that the directors of the drugs trade had adapted to the new sentencing regime by using couriers they deemed to be expendable. This results in relatively low-level offenders being subject to harsher laws while the higher ups keep their hands clean. The law may be deficient in other ways and, in certain circumstances, could be even benefiting the criminals. We must be careful in what we do in the area of sentencing policy.

The effective response to crime has been always a matter of debate and this debate has been often cast as one between those who fully believe in punishment and those who want to see prison time completely cut and replaced with rehabilitative programmes. In actual fact, most people and in many cases, it comes down to discretion. The debate is more often about the right mix, which is what we should be trying to achieve.

Proactive policing can happen only where there is an appropriate number of law enforcement personnel and a fair distribution of Garda resources. Adequate resources are also essential if we are to provide community policing which should be the cornerstone of the Garda response. I am pleased to see this is referenced in the publication launched yesterday. I have done an analysis of the statistics on Garda resources and will shortly publish a paper on same. My analysis shows that areas of growing population are always playing catch up in the context of Garda numbers. County Meath, for example, which is the Minister for Justice's own constituency, has the lowest ratio of gardaí to population in the country, followed by Kildare. The Minister of State's constituency also features prominently, as north Wexford has experienced a rapid rise in population in recent years. What tends to happen is that Garda resources lag behind population rises and we get policing that is reactive rather than proactive. Community policing is proactive policing but it cannot be done properly with inadequate resources. I am not saying that is the only metric that should be used but it is not something that should be dismissed either. Issues such as rates of crime or specific outbreaks of criminal activity would be also key determinants in the context of allocating resources.

The Scandinavian model emphasises rehabilitation, with treatment and support aimed at helping the offender to become a law abiding member of society. Norway moved its focus from punishment to rehabilitation 20 years ago. This was followed by a large reduction in re-offending rates, which is what we should try to achieve here because such reductions make people feel safer. Compared to a re-offending rate of around 50% within a year in the UK, Norway’s rate is around . This is clear evidence of the value of this approach.

Views on crime and punishment differ but we can all agree that we care about criminal acts because they cause harm and have particularly bad effects in some communities. Very often the perception is different to the reality in terms of the actual crime rate but if people feel afraid, we must take that seriously and address it. Advocating for an approach to crime which reduces harm should be a united goal across the political spectrum. There is evidence that rehabilitation reduces crime and is cost effective. The Law Reform Commission and the Irish Penal Reform Trust have repeatedly called for an end to mandatory minimum sentencing, yet successive Governments have been slow to act. Our future approach should not be just based on the fact that mandatory minimum sentencing has been found to be unconstitutional by the Supreme Court, which is pretty significant in itself, but based on evidence.

Very often when one speaks about ending mandatory minimum sentencing, one is perceived to be soft on crime. We need to make sure we do not reinforce this perception. At the same time, we have a responsibility to examine the evidence regarding what works rather than just presenting apparently simple solutions. The rehabilitative approach has been played out in other countries and thankfully we have seen countries like the USA moving slowly in a different direction, which is necessary. We must look at the evidence here. We want to do more good than harm and mandatory minimum sentences have not been good policy.

I completely acknowledge that there is a significant problem with drugs and organised crime in this country and not adequately resourced policing results in a failure to get to grips with such problems. We saw this in Limerick where a significant problem was allowed to emerge. That county and city ended up being labelled, with international publications describing that city in disgraceful terms quite recently. Communities can be blighted in the long term when proactive policing is not practised. We end up trying to resolve problems rather than trying to prevent them from occurring in the first place. The latter is what proactive policing and good policy allows us to do.

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