“The law in its majesty equally forbids the rich man and the poor man to sleep under bridges”
Criminal law as a system of values
(Law and morality, Part 1)

Beth’s recent post on the operation of three-strikes laws in Western Australia for petty property crime and the disproportionate impact on aboriginal youth has sparked this rant, along with the question posed by Michael as to whether the fact that “a law (or punishment) disproportionately affects one group or another allows one to conclude that it’s [a] bad [law]”.

Well, frankly, I think it does.

The last thing the law is, is neutral - the enforcement of criminal law in particular. Police discretion plays a huge role in its practical application, and an overwhelming role in three-strike systems. If you are white you’re more likely to only be cautioned for minor offences, if you are black you’re more likely to be charged. This crudely racist fact is demonstrable through the “civilised” world. Three-strike laws exacerbate the racially biased impact of police discretion, and in effect move sentencing discretion to the police rather than the courts.

But let’s look beyond implementation to the laws themselves. Any rule (laws, employment conditions or organisational policies) can discriminate directly or indirectly. Southern slave states in the US once expressly barred black people from voting: this is direct discrimination. After emancipation some introduced a “grandfather clause”, allowing you to vote in an election only if your grandfather had been so entitled. While this rule is, on its face, neutral - in practice it had an overwhelmingly racial impact, continuing to prevent black people from voting. Indirect discrimination is only visible in outcomes. Similarly, nineteenth century British laws against vagrancy, and contemporary laws against loitering, superficially apply to everyone - but in practice protect the propertied classes from the homeless, and discriminate according to economic status.

Thus, imposing disproportionately harsh and statute-fixed sentences for petty property crime may have a discriminatory impact. A middle-class business person on his first tax-evasion offence and a young indigenous offender on a third shoplifting charge face radically different outcomes. The net harm of tax evasion to society is certainly greater than petty property offences as it (indirectly) robs public education and health systems of vital funds. The tax evader faces no mandatory sentence unless it is his third time before the court, a serial shoplifter gets jail time. Despite the social damage done each year by financial crimes that, the Western Australian legislature is determined to mete out stiff sentences to people who steal food, clothes and bedding. The law is not rational or proportionate, or directed at the greatest evils - it is capricious, inflexible and aims to send a moral message. The fact that young aboriginal men are vastly over-represented in petty offence prosecutions is such a long-standing fact that to claim a legislature can pass “neutral” law in ignorance of the consequences is beyond credulity.

What such a law expresses is a moral position: “we are not interested in why such crimes occur, only in imposing brute discipline on a social group that refuses to respect our rules.” The overwhelming link between poverty and lack of educational opportunity is not addressed.

Proponents argue the law’s harshness is mitigated by allowing for diversionary sentencing: sending offenders to rehabilitation programs, not jail. In impoverished, isolated, rural aboriginal communities where these offences are at their highest no such programs exist. The exception, in practice, tends to let white kids from good suburbs off easily. After all, their futures shouldn’t be ruined by a few mistakes.

I have so much more to say on this topic, it may consume my week.

Anyone wanting light-hearted entertainment, read last week’s stuff. Especially the fiction. Or the stuff about Cambridge.