Judges are human and they are influenced by the cacophony of noise generated by politicians, the media and law-and-order advocates about sentencing.  So says Western Australia’s Chief Justice Wayne Martin and he is on the money.  In fact, what is extraordinary is that anyone would think otherwise.  We may not elect judges and magistrates in this country the way they do in the US, but we should not pretend that our court system somehow operates in a higher realm where those sitting on the bench are impervious to public opinion.

Martin has also exposed the fallacy of thinking that jailing people is a good idea in terms of reducing crime — it simply isn’t.

Chief Justice Martin’s refreshingly honest view of the world, delivered to a criminology conference in Perth yesterday will fortify his growing reputation as perhaps the most progressive leader of a court in the nation.  Recently Martin abolished the wearing of wigs in all cases —  something no other chief justice has been prepared to do.  And earlier this year he called for better dialogue between the courts and the media, including the idea of allowing cameras into court rooms.

Tailback radio, low-rent commercial TV current affairs programs and tabloid print outlets such as the Herald Sun give a voice to an enraged minority and present it as an accurate assessment of community views about sentencing, Martin says.  This is in turn can influence judges and magistrates.

“There is a real danger in this environment that both judges and politicians will take the views of the vocal minority as representative of the views of the majority, in the same way as viewers and readers will take the tiny proportion of cases reported in the media as representative of the whole,”  Martin said.

And it is because judges and magistrates are being influenced by their perception of what are labeled “community views” that more people are going to jail and for longer, Martin argues.  “So, if judges are not influenced by likely public reaction in individual cases, why are more and more people being sent to prison and for longer? It seems to me to be at least likely that judges are just as influenced as politicians and police by their perception of community standards and expectations,” he said.

But jailing people in many cases is just plan dumb.  “The impression one gets from public debate is that there is also a perception that increasing the rate at which people are sent to prison, and the length of imprisonment, will reduce criminal behaviour. The data does not support that proposition,” Martin says.  And he cites a welter of figures to support his case.  For example, 40% of male prisoners released from Western Australian prisons between  1998 to 2008 returned to jail, and that figure was a shameful 70% for Aboriginal offenders.  These recidivism rates are not unique to WA — similar numbers can be found in all states.

For too long now, the judiciary and magistracy in Australia has sat relatively mute while deceitful and intellectually vacuous claims about sentencing and the justice system are made daily by the tabloid media and the politicians and law and order advocates for whom they are ciphers.  Western Australia’s Chief Justice is using his platform to fight back with strong and clear arguments. One hopes his colleagues around Australia follow his lead.