Comment on: “towards a more pragmatic penal system”
| Author | George Zdenkowski |
| Published date | 01 December 1983 |
| Date | 01 December 1983 |
| DOI | http://doi.org/10.1177/000486908301600407 |
| Subject Matter | Original Articles |
238 (1983) 16
ANZJ
CRIM
COMMENT ON:
"TOWARDS AMORE PRAGMATIC PENAL SYSTEM"
George Zdenkowski*
At
the
editor's
request I
make
a few brief comments and certainly do
not
propose
critically to examine in a comprehensive manner many of
the
assumptions
underlying
John
Ray's
analysis. Ray's discussion of proposals for improvements in
Australia's penal system is bedevilled at the outset by his
treatment
of certain issues
as ,unproblematic, apolitical
and
value-free.
The
key issue, according to
Ray,
is
what "we should do with criminals" (emphasis added).
The
fundamental
assumption -
that
there
is a criminogenic section of
the
community
that
can
and
should be isolated from
the
sanitized majority -cannot be sustained.
One
cannot
(or
ought not) simply assume aconsensus as to the complex crime debate.
Who
are
the
"we"
for whom Ray purports to be a spokesperson? Likewise
many
vexed debates
(What
constitutes crime? Who are criminals?
How
are such
definitions arrived at? In whose interests are such definitions reached?
How
does
differential enforcement policy alter the
paper
reality of
the
statute
book?
etc)
are
ignored'.
It is interesting to
note
that Ray's paper, originally delivered to a Liberal
Party
convention in
September
1978, contains
not
a single reference to the devastating
indictment of
the
NSW prison sJstem by Justice Nagle, whose
Report
of
the
Royal
Commission into NSW Prisons was
handed
down some six months earlier.
Ray
defines the problems of
the
penal system as being: (i) gaols are universities
of crime; (ii)
"dangerous
psychopathic rapists, murderers, etc are released after
only
short
periods and go
out
to
repeat
their crimes"; (iii)
"the
great cost of
the
prison system"; (iv)
"the
ever-rocketing crime
rate".
This approach to
problem
definition, among
other
things, telescopes the notions of crime
and
punishment
though
the
solutions
Ray
proposes speak only in terms of punishment.
As to his first problem,
there
is no
doubt
that
people who are imprisoned do learn
something
about
the
commission of crime from
other
prisoners. However, to posit
the
existence of "anti-social knowledge
and
anti-social attitudes" as a corpus which
is transmitted like an infectious disease is something altogether different.
The
second
problem
makes seriously inaccurate assertions. To label rapists as
"psychopathic"
involves an implied dismissal of the important
debate
about
rape
representing an extreme assertion of male power and ignores
the
corresponding
need
to examine male-female relations in general in
our
society when looking at
the
origins of and reactions to that form of anti-social conduct",
Further,
it is quite
misleading to suggest
that
persons convicted of
murder
and
rape
are released
"after
only
short
periods".
Murder
generally carries amandatory life sentence in Australia
and
astudy by Freiberg
and
Biles has shown that the average actual sentence in
NSW
in 1975 was
17~
years".
Rape
also generally attracts very harsh penalties'.
*Senior Lecturer, Law School, University of New South Wales.
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