Jail only the scary, invest the savings in education

The reflexive and defensive response by Daniel Andrews to the Bourke Street tragedy won’t improve criminal justice.

Tightening bail laws and replacing bail justices with magistrates will not make Victorian safer.

The reflexive and defensive response by Victorian Premier Daniel Andrews to the Bourke Street tragedy will do nothing to improve Victoria’s criminal justice system.

That the alleged Bourke Street killer, James Gargasoulas, would have been released on bail a week before the killing represents a breathtaking but utterly foreseeable institutional failing.

Tightening bail laws and replacing bail justices with magistrates will not make Victorian safer. The government needs to abandon reflexive and tokenistic reforms and implement reforms that will inject greater expertise into the system.

Decisions relating to community safety need to be based on science, not hunches.

Young, unemployed, under-educated males with mental health and substance abuse problems and with a history of violent offending are the most likely cohort in the community to commit further acts of violence.

This is demonstrated by risk assessment tools, which use actuarial estimates when considering the likelihood an accused will reoffend. If the bail decision regarding Gargasoulas had been informed by his risk assessment, the likelihood that any responsible decision-maker would have granted him bail is about zero.

Despite this, judicial hunches and political expedience continue to distort Victoria’s criminal justice system.

The idea that the Victorian government can make the community safer by putting more remand or convicted people in prison is misguided. Science and sound legal and moral policy show we need to have a bifurcated approach to criminal justice.

We need to have a different approach to offenders who scare us and those who make us angry.

The empirical data establishes that the crimes that inflict the most human suffering are serious sexual and violent offences. All offenders who commit these crimes should be imprisoned. All other offenders should not.

Tax cheats, thieves and small-time drug offenders make us angry but they don’t inflict carnage on the community. They need to be dealt with using sanctions that don’t cost the $100,000 annually that it takes to house each prisoner.

The dichotomy between violent and sexual offenders and other offenders applies equally when it comes to bail decisions. Victoria has toughened its bail laws over the past decade, to the point where 29 per cent of prisoners are on remand — an increase of 10 per cent in about 10 years.

But the answer to improving the bail and sentencing system does not rest in refusing bail to more suspects. It rests in refusing bail to the cohort of offenders most likely to seriously violate the sexual autonomy and bodily integrity of innocent people.

This is where the system is deficient. These decisions are currently made by reference to the unstructured and non-empirically validated decisions of judges and magistrates.

This leads to a high number of flawed decisions. Lawyers, even those appointed as judges, are not trained to predict future criminality. And it is flawed to suggest that experience as a lawyer or time on the bench improves this judgment. It does not.

Judges are not unaccountable for their decisions. There is not even a systematic reporting process whereby judges are informed of the outcomes of their decisions.

Science can help. Progressive countries such as New Zealand have invested in developing and testing actuarial tools that predict the likelihood an accused person or offender will reoffend.

These tools use static factors (such as criminal history score) and non-static factors (such as employment status and family dynamics) and are significantly more accurate than hunches.

Government dereliction has resulted in these tools not being nuanced to the Australian setting and being used to inform bail and sentencing decisions.

The hundreds of millions of dollars this reform would save could be used to reduce crime by the most effective possible means — more uniform police on the streets. There would even be surplus savings to improve our ailing health and education systems.

Mirko Bagaric is a professor of law at Swinburne University and author of Australian Sentencing.