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Serving the sentence
07 February 2010 By John McDermott
The sentencing of Eamonn Lillis last Friday attracted unprecedented media coverage and raises some fundamental questions about our legal system. Lillis, 52,was sentenced by Mr Justice Barry White to six years and 11months in prison for the manslaughter of his wife Celine Cawley at their Dublin home.
In fact, only Brendan Behan would have remained unmoved by all the fuss over the sentence. He once observed that: ‘‘When I came back to Dublin, I was court martial led in my absence and sentenced to death in my absence, so I said they could shoot me in my absence."
While many common law systems have broadly similar approaches to substantive criminal law, sentencing is still a matter that reflects peculiarly national tastes. In the United States, judges like to hand down 100-year sentences in a process that may make strict mathematical sense, but takes a somewhat optimistic view of the life expectancy of the average 71-yearold fraudster.
For example, sentencing elderly financier Bernie Madoff to 150 years in prison certainly sounds impressive but, if you think about it, a 30-year sentence might have done the job just as well.
In Ireland, our sentences tend not to reach triple digits, reflecting the fact that we believe that most human beings are capable of rehabilitation, no matter what they have done.
Sentencing another human being is the hardest task that any judge is ever asked to perform. It is easy for the media to launch an outcry about sentences that are too light or too heavy but, unlike the judge, they do not have to balance the rights of everyone involved.
In one study, a group of students was given a list of crimes and asked what sentences they would impose. They all gave very heavy sentences, for example, 25 years for armed robbery, 35 years for rape, etc.
The study was then repeated, but this time the students were given some facts about the background of the accused and were told how they had managed to get on the wrong side of the law. This time the sentences selected by the students showed a dramatic decrease.
This simply illustrates the fact that, the more you learn about a person who has committed a crime, the harder it is to lock them in a cell and throw away the key.
The overwhelming majority of criminal trials involve the accused person entering a plea of guilty. Statistics included in the DPP’s annual report of 2008 revealed that 92 per cent of those charged with an indictable crime pleaded guilty. A further 5 per cent were found guilty after a contested trial, leading to an overall conviction rate of 97 per cent.
The public may not appreciate that our criminal justice system spends most of its time sentencing people, rather than trying them.
This means that our judges build up huge practical experience of sentencing, something that should be carefully borne in mind whenever you hear them criticised.
Part of the difficulty with any public debate on this issue is the fact that no two crimes, or criminals, are the same.
In fact, it would be hard to get a public consensus on the primary purpose of sentencing (punishment, deterrence or rehabilitation), let alone agreement on what the appropriate sentence might be following a conviction for manslaughter, where the range of possible punishments varies from a life sentence to probation.
One possible way of avoiding potential inconsistency in sentencing would be for the Oireachtas to remove judicial discretion by imposing more mandatory sentences for certain crimes. However, a succession of governments has been reluctant to do this, reflecting the wisdom behind the old adage that, while legislatures understand offences, courts understand offenders.
In fact, attempts to impose mandatory minimum sentences have proved unsatisfactory in practice. For example, legislation that required persons found with drugs above a certain value to be imprisoned for a minimum of ten years in the absence of ‘‘exceptional circumstances’’ has had little real impact on the war on drugs.
Judges hearing such cases often find such exceptional circumstances to exist. This perhaps reflects their experience that the persons caught in the possession of large quantities of drugs often turned out to be poverty-stricken ‘mules’, rather than the criminal masterminds at which the act was primarily directed.
The fact of the matter is that Irish judges value their independence and do not like being told what to do when it comes to sentencing. While this may be controversial, if a member of your family faced a sentence hearing, it is likely that you would appreciate this judicial independence.
However, despite the significant difficulties that sentencing inevitably throws up, real improvements to the sentencing process have been made in recent times.
Perhaps the most notable reform has been the introduction of the victim impact statement into the sentencing process for a number of crimes. This enables victims of a crime or their grieving relatives to give evidence about the impact of the crime on their lives.
The value of such reports was highlighted again last week when Mr Justice Peter Charleton considered such a report before imposing five life sentences on Polish national Edward Piotrowski for the rape and assault of a woman.
In fact, the real problem is not with the sentencing process, but with what comes after it, in particular in relation to remission and temporary release. These can have the effect of completely undermining the carefully-considered decision of the trial judge.
At present, convicted persons automatically get remission of a quarter of their sentence. Thus, if a judge spends a day agonising over what the sentence should be and imposes 12 years, the moment you arrive at the gates of a prison, you will be told that you will be released in nine years.
More worryingly still, the chronic overcrowding in Irish prisons means that prisoners may get out even sooner. Owing to the lack of places in women’s prisons, a female prisoner is likely to be released having served only a fraction of her original sentence.
All of these problems can be easily reformed and, with a bit of effort from our legislators, we could have a criminal justice system so rational and fair that even Brendan Behan might be tempted to turn up for his sentence hearing.
James McDermott is a lecturer in law at UCD and a practising barrister
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