Lawyers' Christian Fellowship

MANDATORY SENTENCING: A HISTORICAL PERSPECTIVE FROM THE CHRISTIAN POINT OF VIEW.

The Hon Justice Adams, Supreme Court Of New South Wales,
Chairman, NSW Law Reform Commission,
Member, Uniting Church (NSW Synod) Board For Social Responsibility.

The crime of petty treason was committed by uttering forged coins and whenever a subordinate killed or attempted to kill or conspired to kill his or her superior. For this purpose, an employer or a husband or a priest was regarded as superior. The mandatory punishment for women was being burnt at the stake.

In 1786, William Wilberforce attempted to get Parliament to discontinue the burning of these women. Lord Loughborough, the Lord Chancellor, who was for some time a Ruling Elder of the General Assembly of the Church of Scotland, opposed this reform. He did so for the reason that the spectacle was likely to make a stronger impression as a deterrent on those who saw it than mere hanging, and no more pain was inflicted because the women were always strangled before the fire got near them. In fact, "always" overstated the case. The punishment was abolished in 1790. The crime remained until 1826. This was a little more than 200 years ago but fourteen centuries after Christianity became part of the power structure of the State, for most of which time it was also its dominant element.

Down to that year, the mandatory punishment of every felony was death and there were hundreds of such crimes, many of which were created or at least made felonies in the 17th and early 18th centuries. Grand larceny, for example, was to steal anything of the value of more than 12 pennies. It was a felony and thus punishable by death. Privately stealing in a shop to the value of five shillings also carried the death penalty. Whilst setting fire to a house might well be seen as extremely serious, the death penalty applied whether it was occupied or not; however, it is difficult to understand the reason for executing persons for setting fire to a stack of straw or wood, even though there was no intention to injure any person and it was impossible to do so. Destruction of a tree belonging to another, if with malice against the owner was also a capital offence. It may easily be guessed what the punishment was for killing, maiming or wounding any cattle, whether or not (in the latter two cases) the injury was permanent.

The age of the offender was irrelevant. In 1800 a ten year old was sentenced to death for secreting notes at a post office (a form of larceny). The judge thought it necessary to pacify the feelings of horror in the crowded court by stating "the necessity of the prosecution and the infinite danger of its going abroad into the world that a child might commit such a crime with impunity, when it was clear that he knew what he was doing" and hinting "slightly" at the possibility of the exercise of the prerogative of mercy. The sentence was commuted and the boy was sent to Grenada for fourteen years under a private arrangement with a member of the grand jury who had estates there. Such arrangements were often flagrantly corrupt and little more than slavery, with the prisoners being bought and sold.

In 1785 the Solicitor-General stated in the House of Commons that out of every twenty offenders executed in London, eighteen were under the age of twenty-one. There are many examples of children between the ages of eight and thirteen being sentenced to death as late as 1814. In that year a boy of fourteen was hanged at Newport for stealing. Even as late as 1833 a nine year old boy was given the death penalty for pushing a stick through a cracked window and pulling out some printers' inks worth twopence. Following the Gordon Riots in 1780, of twenty five executed, seventeen were under 18 years of age and three were only fourteen.

Although in the second half of the 18th century the actual execution rate of offenders sentenced to death ranged from 50 to 75 per cent, equally for minor capital offences as for serious ones, by the early 19th century executions for capital property offences, such as stealing privately in shops or dwelling houses unaccompanied by aggravating circumstances occurred in perhaps less than 10 percent of cases. In 1785 in London and Middlesex, of the 97 persons executed, only one was convicted of murder, the rest were property offences not involving violence to the person. This was not an unusual year. It is generally accepted that, by this time, executions had become less frequent that earlier in the century. The number continued to fall. In England and Wales in 1810, there were 481 capital convictions for property offences and 55 executions but only one (of 67) of these was for stealing in a dwelling house to the value of 40 shillings (it should be noted that juries would frequently find that the most valuable items somehow never quite got over the forty shilling mark) ; four out of five were executed for sodomy, whilst nine of fifteen were executed for murder and only two out of thirteen for shooting, stabbing and administering poison with intent to murder.

In 1772, the Parliament rejected a proposal of its own Committee to repeal an Act that punished with the death penalty as for murder any woman who concealed the death of a bastard child unless she could prove that the child was born dead. It is bizarre, to say the least, that this particular crime should abrogate the presumption of innocence, even then considered to be a fundamental principle of the criminal law. Other reforms were approved in the House of Commons, only to founder again in the Lords, with the support of the Bishops, as happened again in 1787.

In 1810 a Bill to repeal the death penalty for theft in dwelling houses to the value of forty shillings was lost in the House of Commons, despite the support of William Wilberforce, but the Bill amending the Act which punished stealing privately in a shop to the value of five shillings with death was passed. In the House of Lords, the Bill was opposed by both Lord Eldon, the Lord Chancellor and Lord Ellenborough, Lord Chief Justice, who claimed the support of the judges. The argument apparently most (but insufficiently) persuasive favouring reform was not that the law was unduly harsh but that it was becoming increasingly difficult to obtain convictions from juries. Lord Eldon, however, not only defended but praised the state of the law, and the House of Lords rejected the Bill by a majority that included seven bishops. A further attempt in 1816 failed, although it was disclosed in debate that a ten year old boy was then confined in Newgate prison under sentence of death for shoplifting. It was mentioned in debate that, in 1814, the Recorder of London had stated from the bench at the Old Bailey that "it was the determination of the Prince Regent, in consequence of the number of boys who had been lately detected in committing felonies, to make an example of the next offender of this description who should be convicted, in order to give an effectual check to the numerous instances of youthful depravity". The Attorney General explained, in all seriousness, that it was necessary to execute these children because a very large proportion had been instructed by their parents to steal in the hope that they would escape punishment because of their age. Reform failed again in 1818 despite compelling evidence that juries repeatedly found, contrary to the plain fact, that the stolen goods were worth less than five shillings or had not been stolen privately.

In 1813 and then 1823 and 1827, Sir Robert Peel managed to procure repeal of some capital penalties, including for larceny in a number of circumstances. By 1839 most of the property offences were no longer punished by sentence of death. The offences that remained were, with one exception (buggery, "either with mankind or any animal"), seriously violent or dangerous.

The reforms of these dreadful laws, which took so long, did not come about as the result of any campaign by any recognizable section of the Church, let alone the whole Church, although many of those who sought reform would have regarded themselves as Christians, as also did many of those who fought them tooth and nail.

The Church in the ecclesiastical courts and, by extension, the Court of High Commission under the Tudors and the Stuarts exercised powers to punish immorality, heresy, witchcraft and the like and freely (and illegally) used torture to procure obviously worthless confessions which provided the basis for imprisonment and execution. Stephen states (op cit, Vol II, ch 25) that, "the practice of burning heretics was…introduced into the law of England by forgery, a usurpation countenanced and procured by the clergy". This was a stern but entirely just observation. The enemies of reform were not confined to the Anglican bishops in the House of Lords. The great non-conformists were, by and large, similarly opposed to what they saw as softening the necessary brutality of the law. Oliver Cromwell was a notable exception.

Of course, much has changed since those days. Nevertheless it is still true that, as a whole, Christians are not active in law reform and those in active political life as Christians usually represent the most conservative and often primitive view of the role of the law as an element of the social order. A question which must be asked is how it came to be that this culture of superstition, gross injustice and cruelty was so actively participated in by Christians and the Christian Church as one of the most significant elements of the social order.

That ethics must govern both personal and community life seems axiomatic. It appears to have been central to Old Testament Judaism. The Old Testament mandated death, the community being the executioner, for a wide variety of offences (but not for theft, for which restitution at double or more value or slavery was provided: see Exodus 22 which seems, compared to 17th Century England, extraordinarily moderate). The idea that killing an offender was mandatory in a range of cases was therefore one which not only had the sanction of longstanding convention in many societies but, in modern Europe, of Divine sanction, even command. The laws of Alfred the Great (849-99), as Stephen observes, (op cit, Vol I, Ch 3) "begin with the Ten Commandments, an adaptation of considerable parts of Exodus, extracts from the Acts, and a historical statement as to the diffusion of Christianity".

Christian ideals did play a prominent role in two significant reform movements in modern times, the abolition of slavery and improvement of labour conditions. I say "Christian ideals" rather than "Christians" because the reality is that Christians were deeply divided on both these questions. However, it is beyond the scope of these talk to go into these matters. I cite them as examples - and there are many more - which demonstrate the rather obvious but puzzling truth that, if there is a Christian social ideal or a number of such ideals, the Church has never, or almost never, either discovered or proclaimed one. There have, of course, been prophets from time to time. Perhaps William Wilberforce and the 7th Earl of Shaftesbury (who, in the face of widespread opposition and after a long campaign, managed to get the Mines Act of 1842 passed, forbidding women and children under the age of ten (!) working underground) and, in modern days, Dietrich Bonhoeffer and Martin Luther King might be so described. But they all failed to bring about a united, or significantly united Christian social action. I will return to this theme in a moment.

I would like to suggest that Christians have a model for criminal law reform of the most powerful kind. Do you remember these words: "You have heard that it was said to those of old...But I say to you that..."(Matt 5:21-22, 27-28, 31-32, 33-34, 38-39, 43-44)? In these passages, Jesus is speaking of the Law - of murder, adultery, divorce, solemn undertakings, retribution, relations with strangers - and asserts it should be interpreted or, perhaps reinterpreted, and applied. In this, Jesus was going to the heart of the Law. He was also demonstrating its limits. For Jews, the Law was applied by force of the authority of the religious rulers and the royal government. Much of the law was executed by the communities in which the wrongdoer lived. It is obvious that, to take a couple of examples, an actual killing could be the subject of punishment as could adultery. But, even if you could prove anger in the heart or lustful thoughts, the notion that you would give the authorities, let alone the village people, power to punish for these wrongdoings would be quite frightening. Of course, Jesus had nothing of the sort in mind. He was pointing out two fundamental truths: firstly, that mere compliance with the external law, though a moral duty, was no sign of true righteousness; and, secondly, that everyone was a transgressor or, in the words of St Paul, "all have sinned" in precisely that manner which required the death penalty. Jesus was also, and this is fundamental, insisting upon personal responsibility as not only the vital element of moral behaviour but also as the measure of denunciation. By parity of reasoning, all are equally responsible for identical behaviour. Thus the same immorality attracts the same consequence, the judgment of death. The criminal law, for the Christian, should express at least two elements: it must measure actual personal responsibility and punish accordingly; it must measure out the same punishment for the same culpability.

The vital distinction between the regulation of society on the one hand and the requirements of righteousness on the other is easier to state than it is to apply. It is not informed, at least directly, by any Biblical or widely accepted theological teaching. Sir Karl Popper , in his seminal work, The Open Society and its Enemies (Routlege,1980), makes the point that the strength of the early Christians and their resurrected creed of the open society - typified, in Jesus' teaching, by the parable of the good Samaritan - lay in their moral courage. He notes their rejection of Rome's claim that it was entitled to compel its subjects to act against their conscience and adds "the Christian martyrs who rejected the claims of might to set the standards of right suffered for the same cause for which Socrates has died". However, he comments that "these matters changed very considerably when the Christian faith itself became powerful in the Roman empire" (ch 11, p23).

The lack of a theoretical, as distinct from a metaphorical, Biblical social philosophy may be an important reason why humanism has had such a significantly greater and more beneficial influence on theories of law and government than Christianity, though no doubt it has been influenced by Christian thought in its turn. Cognately, the philosophical ideas underlying humanism have been open to the influence of scientific reasoning and discovery in a way that the post-medieval Church found almost impossible (see Jean Gimpel, The Medieval Machine: The Industrial Revolution of the Middle Ages, Penguin 1977). It is surely no accident that the process of secularisation and the pro tanto recession of the power and influence of the Church and Christians as such, stimulated by the Renaissance and the Reformation, flowering in the 18th and early 19th centuries and gathering pace into the present time has led to humane reforms across the entire social and political order.

The idea that people have rights as distinct from duties does not appear to be a Biblical idea at all. Moreover, the source of duty is not the inherent worth of the other but the command of God who cares for that other. Yet the idea of human rights, both individual and communal, appears to be the most powerful theme running through virtually every positive social change over the last 200 years. The genesis of the notion of such rights seems rather to lie in Hellene and Roman antiquity than in Christian thought.

In England, as distinct from Europe and even Scotland, the common law developed a self-consciously distinct jurisprudence that separated itself from ecclesiastical and natural law, though it was influenced by the civil law of the Continent. Magna Carta (1215) was itself understood to express the common law. It was to the ancient common law and not Christian principles to which Edward Coke appealed to declare both the immorality and the illegality of torture (Third Institute, 1628), which Holdsworth regards as one of its most important and influential principles. With all its flaws, the common law kept alive the notion of the rights and liberties of the citizen, despite the inevitable corruption of its administration in the interests of the powerful, and its subservience to violent superstition.

The death penalty for felonies except murder, high treason, piracy with violence and destruction of public arsenals and dockyards was eventually abolished in the mid-19th century. The impetus for this reform did not arise as an expression of Christian morality, although it provided some of the vocabulary.

It seems impossible to escape the damning conclusion that the Church contributed almost nothing to the cause of justice, let alone kindness and humility (to use Micah's succinct description of the will of God); indeed, most Christians and certainly most churches have consistently opposed changes that might have given more rational, more fair or more humane justice. Virtually all the reforms of the 18th and especially the 19th centuries have been brought about by democratic forces asserting human rights. They were impelled by much the same intellectual and social ideas that both led to and were significantly influenced by the rejection of superstition, the development of science, and commitment to the central role of reason in human life which had gathered force since the astonishing discoveries of Kepler, Copernicus, Galileo, Newton and a host of others like them. At last, those whose essential philosophy of the social order was rational and humanist were able to influence and bring about reforms to the law.

So far as England was concerned, the tools had been forged to some extent by the common law and needed to be wielded in a new way. But reform of the criminal law from within, by the courts, was impossible and it was forced on them by the legislature. I do not suggest for a moment that Christians were not significant in this move but it was because essentially secular cultural and social changes brought new insight into the possible implications of their faith, new opportunities to express that insight and new empowerment to bring about change.

I do not think it can be seriously contended that any substantial legal, social or political advance, even in the modern era, has been marked by a Christian consensus, with the possible exceptions in the USA of the extension of civil rights to Afro-Americans in the 1960's and 1970's and the changes to the Australian Constitution concerning indigenous Australians in 1967. The devastating analysis of the relations between the church and the National Socialist State by Bonhoeffer (see Ethics and No Rusty Swords Collins, 1965) shows how the (Lutheran, but the analysis applies to all the churches,) Church in Germany not only failed to combat Nazism but became complicit it its crimes. It seems frighteningly true that there is no reason to suppose that, given similar conditions in other cultures, there would have been a different outcome. By way of example, consider the role of the churches in apartheid South Africa or in (especially) southern USA or, more recently, the failure of the Serbian Orthodox Church to take a stance against the atrocities committed by Serbians in Kosovo. So observed, the Church is less a light on the hill than a chameleon, taking its colour from its environment.

It appears, then, that the Church, as such, has generally reflected the dominant notions of the society in which it operated from time to time, whether they were brutal, cruel, acquisitive, irrational, unjust or (latterly) liberal. Papal statements, for example, about aspects of social and political life (with the possible exceptions of abortion and birth control) seeking to apply Christian values to the secular world may fairly be seen as demonstrating rather than refuting this conclusion. Statements of abhorrence of anti-Semitism seem mostly to post date the Holocaust. The mere fact that some persons in leadership roles in the Church assert standards at odds with some conventional opinions, for example on economic rationalism, reconciliation, indigenous land rights or the environment is no indicator of what most members of their churches think, let alone their Christian members. Are they prophets or simply a statistical representation of the range of political and social opinions you might find in any large group? After all, the Church has had sixteen hundred years (dating from its rise to power in the State) to find an independent moral source, that is, one independent of the surrounding culture.

A number of contemporary legal issues illustrate this point. They include homosexual and drug law reform. However, let us consider mandatory sentencing for relatively trivial sentences.

The Sentencing Act 1999 of the Northern Territory provides that an offender must be sentenced on first conviction for a property offence to a term of not less than 14 days, unless he or she proves certain specified exceptional circumstances, on conviction on a second occasion, the offender must be sentenced to a term of not less than 90 days and for a third occasion, to no less than twelve months. This is so regardless of age, circumstances, background, education, intelligence, handicaps, amount, or seriousness. For the first offence, however, if the offender establishes that it is trivial, the offender has made, or has made reasonable efforts to make, full restitution, the offender is otherwise of good character, there are mitigating circumstances, the offence was an aberration and the offender co-operated with law enforcement in the investigation of the offence, the 14 days sentence is not mandatory. Property offences include stealing of goods (but not, eg, shoplifting) robbery, receiving, unlawful entry of a building with intent to commit a crime, unlawful use of a motor vehicle, caravan or trailer or criminal damage to property. Many other crimes of dishonesty, such as obtaining property by deception, frauds by trustees, false accounting or forgery are not caught by this provision; nor are crimes of violence.

The first worrying aspect of this matter is that it has only recently become a public issue, though the legislation in the Northern Territory dates from 1996 and it took a death to catalyse criticism. The most worrying aspect of the debate, however, is that it seems to have proceeded, so far as the politicians are concerned who support or apologise for the laws, without any moral content whatever. All the justifications that I have read refuse to grapple with the question whether any injustice is involved to the individuals who are subjected to the sentences. Primitive social notions of crime and punishment, not essentially dissimilar from those which I have been discussing have been invoked. Those who support the laws, whilst refusing to reason, do not shrink from abuse. The Chief Minister of the Northern Territory, has tried to justify the laws by cowardly and dishonest attacks on the judiciary. For the Christian, popular opinion does not determine morality. After all, dissentients are rare at a lynching.

In so far as there has been any attempt at reason, the argument appears to be that it is necessary to send these people to prison to deter others from committing the same acts, without reference to the extent of punishment which the behaviour itself actually deserved. The requirement of general deterrence is one of the fundamental elements of the law of sentencing. However, it cannot, according to modern sentencing jurisprudence in Australia, justify a sentence which is greater than that which the wrongful act actually deserves. In substance, its effect is to qualify the extent of mitigation that might otherwise be applied because of the personal circumstances of the offender. In dealing with personal circumstances, it is important to remember that a substantial proportion of offenders suffer from measurable intellectual disability. Since it is obvious, and it is not sought to be argued otherwise, that many petty thefts cannot, of themselves, merit the stipulated mandatory punishments, the prisoners are punished for the potential acts of others. If disablement is the objective - the prisoner cannot steal whilst in custody - again, there is no reference to what punishment is actually deserved and the line is drawn arbitrarily, limited only by the size of the gaols the Northern Territory community is willing, at enormous expense to all Australian taxpayers, to construct. Amongst other consequences, it is obvious that this law also provides fertile ground for blackmail and extortion, potentially by police.

The fundamental immorality of this kind of law is that it treats the individual, not as a person, but as an instrument of policy. Now, I do not know any words in the Scriptures that, in terms, denounce the process of dehumanising people for reasons of social policy but the response of Jesus and even, I think, of St Paul, to such an idea is scarcely susceptible of any doubt. As is clear from the passages from St Matthew's Gospel referred to above, the essence of the Law, rightly understood, is personal responsibility equally shared.

Mandatory sentencing laws, such as exist in Western Australia and the Northern Territory, as well as in some States of the USA cannot be justified by any Christian ethical view. This law denies the fundamental criteria of Christian justice: it is unequal and it is dehumanising. It also contradicts fundamental elements of the rule of law in a liberal democracy, namely, the right of persons to be treated as individuals and not as merely one of a class or cast, and the independence of the judiciary. The law permits the politicians to place their thumbs on the scales of justice and requires the judges to deal out the corrupted measure.

In the end, there is no reason to suppose that the Church will try to defend that which it never helped to create. Those of us Christians who oppose all forms of mandatory sentencing will be united by our shared ethical understanding, rather than by the faith which provides its eternal and spiritual matrix. Many, perhaps most, Christians will not share that particular ethical understanding. But it is this understanding that provides the basis for joining with those who are not Christians to undertake the challenge. They are our natural allies and, God knows, the voices of unreason are numerous enough.