Does the threat of longer prison terms reduce the incidence of assault?
| Author | Patricia Menéndez,Don James Weatherburn |
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
| DOI | http://doi.org/10.1177/0004865815575397 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2016, Vol. 49(3) 389–404
!The Author(s) 2015
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DOI: 10.1177/0004865815575397
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Article
Does the threat of longer
prison terms reduce the
incidence of assault?
Patricia Mene
´ndez and
Don James Weatherburn
NSW Bureau of Crime Statistics and Research, Australia
Abstract
In a bid to reduce alcohol-related violence, the New South Wales Government recently
proposed introducing mandatory minimum prison terms for assault. This article addresses
the question of whether the threat of mandatory minimum penalties would reduce the
incidence of assault. We exploit an earlier sentencing reform in New South Wales (the
introduction of standard non-parole periods) in which longer minimum periods in custody
were announced but never actually carried into effect. We use time series structural model-
ling to see whether assault rates in New South Wales were affected by the threat of more
severe penalties. No evidence is found that the threat of longer prison terms had any effect
on the incidence of assault in New South Wales. The article discusses the policy implications
of this finding and concludes that liquor licensing policy is a more cost-effective policy instru-
ment for dealing with alcohol-related violence than sentencing policy.
Keywords
Assault, liquor licensing, mandatory minimum penalties, Standard non-parole periods, struc-
tural time series analysis
Introduction
Alcohol-related violence is a problem of long-standing public concern in New South
Wales (NSW), as it is in most other Australian States and Territories. Although assaults
in NSW have declined over the last five years (NSW Bureau of Crime Statistics and
Research, 2014), the fatal assault on a young teenager (Daniel Christie) in January this
year (Needham & Smith, 2014) sparked calls for tougher action on alcohol-related vio-
lence. On 21 January 2014, the NSW Government announced a package of measures
designed to reduce alcohol-related violence. Among other things, the package included a
controversial new proposal to impose mandatory minimum penalties on people
Corresponding author:
Patricia Mene
´ndez, Bureau of Crime Statistics and Research, Level 8, St James Centre, 111 Elizabeth St, GPO Box 6,
Sydney 2000, New South Wales, Australia.
Email: patricia_menendez@agd.nsw.gov.au
convicted of assault while intoxicated by drugs and/or alcohol. The proposed mandatory
minimum penalties ranged from three years for reckless wounding (s35(4), NSW Crimes
Act 1900) to five years for recklessly inflicting grievous bodily harm in company (s35(1),
NSW Crimes Act 1900) or assaulting and causing grievous bodily harm to a police
officer ((ss60(3), 60(3 A), NSW Crimes Act 1900).
The proposal came under immediate attack from academics, media commentators
and senior members of the State’s legal profession. Criminologist Kate Fitz-Gibbon
(2014) criticised the O’Farrell Government for contemplating laws that, in her view,
would do nothing to reduce crime but which would ‘discourage defendants from plead-
ing guilty to an offence holding a mandatory minimum sentence’, thereby ‘increasing
pressure on an already stretched court system’ (Fitz-Gibbon, 2014, p. 1). High profile
business commentator Michael Pascoe described the proposed laws as ‘ridiculous’,
adding that they will create a ‘lawyers picnic’ but do nothing to prevent further
deaths (Pascoe, 2014). Former NSW director of public prosecutions, Nick Cowdery,
NSW Bar Association president, Philip Boulten and NSW Law Society president Ros
Everett all questioned the deterrent value of the proposed new laws, with the latter
expressing the view that ‘deterrence arises from fear of being caught, not from the
length of the sentence’ (Roth, 2014).
It is easy to understand the scepticism. Deterrence theory assumes that individuals
make choices about involvement in crime based on the perceived risks, costs and benefits
of such involvement (Becker, 1968; Ehrlich, 1973). According to this theory, increasing
the cost of involvement in crime will reduce its frequency. The thesis seems plausible in
relation to crimes that involve a degree of pre-mediation or planning. Assaults, however,
often appear to be unplanned and impulsive, especially when inflicted by people under
the influence of alcohol. The classical image of offenders as rational, informed calculat-
ing machines does not sit well with the all-too-common television spectacle of enraged
and intoxicated young men mindlessly brawling outside nightclubs and pubs. In circum-
stances like these, changing the environmental factors that give rise to offending would
seem more productive than changing the penalties for offending. All the same, intuition
and plausible reasoning are no substitute of evidence. The question that needs to be
addressed is whether there is any evidence that mandatory minimum penalties are inef-
fective in deterring crime.
In his widely cited review of the evidence, Tonry (2009, p. 100) concluded that ‘there
is little basis for believing that mandatory penalties have any significant effect on rates
of serious crime’. This is not because he found that a large number of studies of
mandatory minimum penalties which found no effect. The number of studies specific-
ally examining the deterrent effectiveness of mandatory minimum penalties is actually
quite small. Nearly all of the studies on which Tonry (2009) based his conclusion
examined either the specific deterrent effect of tougher sanctions, such as three strike
laws or the relationship between imprisonment rates and crime rates. Most studies of
specific deterrence show prison exerts little if any effect on the risk of further offending
by those imprisoned (Nagin, Cullen, & Jonson, 2009), but this tells us nothing about
general deterrence. Studies of the relationship between crime and imprisonment rates
generally find evidence that prison does reduce crime (Donahue, 2009; Spelman, 2000)
but these sorts of studies do not and cannot separate deterrence from incapacitation
effects.
390 Australian & New Zealand Journal of Criminology 49(3)
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