New criminal sanctions - Inflicting pain through the denial of employment and education

Criminal Law Review

Volumn , Issue MAR., 2001, Pages 184-204

  Bagaric, Mirko ^a  

^a MONASH UNIVERSITY   (Australia)

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EID: 25444444761     PISSN: 0011135X     EISSN: None     Source Type: Journal    
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References (122)

1. For an overview of the characteristic features of many types of intermediate sanctions, see T. R. Clear and P. L. Hardyman, "The New Intensive Supervision Movement" (1990) 36 Crime and Delinquency 42;
2. N. Morris and M. Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System (New York, 1990).
3. See M. Tonry, "Interchangeability, Desert Limits and Equivalence of Function" in A. von Hirsch and A. Ashworth (eds), Principal Sentencing (Hart Publishing, Oxford, 1998) 291;
4. A. Ashworth, Sentencing and Criminal Justice (2nd edn, Butterworths, London, 1995), 269;
5. R. Fox and A. Freiberg, Sentencing: State and Federal Law in Victoria (2nd edn, Oxford University Press, Melbourne, 1999).
6. In comparison to imprisonment.
7. For data regarding the escalating use of imprisonment, especially in the Untied States, see F. E. Zimring and G. Hawkins, Incapacitation (Oxford University Press, New York, 1995);
8. A. Blumstein, "US Criminal Justice Conundrum: Rising Prison Populations and Stable Crime Rates" (1998) 44(1) Crime and Delinquency 127;
9. L. S. Beres and T. D. Griffith, "Do Three Strikes Laws Make Sense? Habitual Offender Statutes and Criminal Incapacitation" (1998) 87 Georgetown Law Review 103, 107;
10. Australian Institute of Criminology, Australian Crime: Facts and Figures 1998 (Australian Institute of Criminology, Canberra, 1998) 37;
11. A. Ashworth, Sentencing & Criminal Justice (2nd edn, Butterworths, London, 1995), 218.
12. This is not to deny that these punishments should be considered sanctions in their own right (as has been pointed out in relation to other types of intermediate sentences: see A. von Hirsch, Censure and Sanctions (Clarendon Press, Oxford, 1993) 58); merely that the proposed sanctions should be used instead of imprisonment (see below).
13. See for example, H. Morris, "Persons and Punishment" in S. E. Group (ed.), Theories of Punishment (Indiana University Press, 1971) 76, 83;
14. R. A. Duff, Trials and Punishments (Cambridge University Press, 1985) 267;
15. J. M. E. McTaggart, Studies in Hegelian Cosmology (Cambridge, 1901) 129
16. See for example, J. Bentham, Principles of Morals and Legislation (1789) ch. 13.2;
17. C. L. Ten, Crime, Guilt and Punishment (Clarendon Press, Oxford, 1987) 2;
18. N. Christie, Limits to Pain (Martin Robertson, 1981);
19. R. A. Duff, "Punishment, Citizenship and Responsibility" in H. Tam (ed.), Punishment, Excuses and Moral Development (Avery Aldershot, 1996) 1, 2.
20. For the sake of completeness, in my view punishment is an unpleasantness, in the sense of a hardship or deprivation; that is, it involves the taking away of something of value as a response to a wrong actually or allegedly committed. This might seem so obvious to be almost tautologous, but it is a point that has apparently been missed in relation to some "sanctions". For example, it has been argued that the suspended sentence fails this test. Suspended sentences threaten future pain (in the form of imprisonment) if the offender re-offends during the term of the sentence. However, the risk of imprisonment for a breach of the criminal law is no different in character to that risk faced by all citizens: see M. Bagaric, "Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments" (1999) 22(2) University of New South Wales Law Journal 535.
21. See M. Bagaric, "In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights" (1999) 24 Australian Journal of Legal Philosphopy 95;
22. M. Bagaric and K. Amarasekera, "The Errors of Retributivism" (2000) 24 Melbourne University Law Review 124.
23. The efficacy of punishment to attain other objectives of punishment which are traditionally invoked by utilitarians is discussed in section 5 of this paper.
24. This point is also made by A. Ashworth and E. Player, "Sentencing, Equal Treatment, and the Impact of Sanctions" in A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (Clarendon Press, Oxford, 1998) 251, 252.
25. Indeed, the proposed sanctions are ostensibly more compatible with a retributive account of punishment, since it could be argued that the new sanctions are inconsistent with the utilitarian sentencing objectives of incapacitation, deterrence and rehabilitation. The cogency of this argument is considered in section 5 of this paper.
26. For example, see A. von Hirsch, Censure and Sanctions (Clarendon Press, Oxford, 1993);
27. R. A. Duff, Trials and Punishment (Cambridge University Press, Cambridge, 1986).
28. See M. Bagaric, "Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt With on the Spot" (1998) Monash University Law Review 231, 270.
29. It has been suggested that numerical differences between situations are irrelevant. This refers to specific descriptions of the person, relation or situation. Thus, the fact that the judgment relates to a particular person (such as John Smith), place (such as London), or relation (John's mother) is irrelevant. Also irrelevant are generic differences: tastes, preferences, and desires: see J. L. Mackie, Ethic: Inventing Right and Wrong (Pelican Books, London, 1977) 83-102.
30. This argument is normally termed the "slippery slope" or "dangerous precedent" argument, and has proved to be particularly persuasive in the context of the euthanasia debate. Five inquiries which have been conducted to inquire into the desirability of decriminalising euthanasia have all advised against the decriminalisation, due to the perceived "slippery slope" dangers of such a reform: see Law Reform Commission of Canada, Euthanasia, Assisting Suicide and the Cessation of Treatment (1982);
31. Social Development Committee of the Parliament of Victoria, Inquiry Into the Options for Dying With Dignity (1987);
32. House of Lords Select Committee on Medical Ethics (1994); New York Task Force on Life and the Law, When Death is Sought (1994);
33. and Special Committee on Assisted Suicide and Euthanasia of the Senate of Canada, Of Life and Death (1995).
34. See J. Kleinig, "The Hardness of Hard Treatment" in A. Ashworth and M. Wasik (eds), in Fundamentals of Sentencing Theory (Clarendon Press, Oxford, 1998) 278, who argues that even imprisonment compromises the human regard that offenders are entitled to.
35. See also C. Harding and R. W. Ireland, Punishment: Rule, Rhetoric and Practice (Routledge, London, 1989) 187.
36. Kleinig, above n. 16, 283. This comment is made in the context of imprisonment, but applies with even more force in the context of corporeal punishment. Cruelty has been defined as "the wilful inflicting of physical pain on a weaker being in order to cause suffering and fear": J. Shklar, Ordinary Vices (Harvard University Press, Cambridge MA, 1984) 8.
37. For an overview of the advantages of corporeal punishment, see C. Harding and R. W. Ireland, above n.17, 193.
38. For a discussion of the possible reasons for the move away from corporeal punishment, see Harding and Ireland, ibid., 188-192.
39. It has been contended that this civilisation process is slowly being eroded with the employment of such measures as curfews, boot camps, chain gangs and "three strikes and you're out" (mandatory sentencing) laws: see J. Pratt, "Towards the 'Decivilizing' of Punishment?" (1998) 7(4) Social & Legal Studies 487.
40. M. Focault, Discipline and Punish: the Birth of Prison (Allen Lane, London, 1977) 11.
41. See also J. Kleinig, "The Hardness of Hard Treatment" in A. Ashworth and M. Wasik (eds), in Fundamentals of Sentencing Theory (Clarendon Press, Oxford, 1998) 273, 278.
42. Like all principles in a utilitarian ethic, this principle is not, however, absolute: see M. Bagaric, "In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights" (1999) 24 Australian Journal of Legal Philosophy 95.
43. The Human Rights Act 1998 (U.K.) gives effect in English law to the rights and freedoms guaranteed under the European Convention of Human Rights. For an overview of the Act, see C. Ovey, "The European Convention on Human Rights and the Criminal Lawyer: An Introduction" [1998] Crim.L.R. 4. For preliminary observations regarding the impact of the Act on sentencing law and practice, see Dame Mary Arden, "Criminal Law at the Crossroads: The Impact of the Human Rights Act from the Commission's Perspectives and The Need for a Code" [1999] Crim.L.R. 439, 448-449. For a discussion of the implications of the Act on other aspects of the criminal justice system, see the various papers in the April, 1999 issue of the Crim.L.R., 251-299.
44. A. von Hirsch, above n.5, 60. The phrase von Hirsch actually uses is a good life (instead of a happy life), but in my view there is no meaningful distinction. For a similar formulation, see M. Wasik and A. von Hirsch, "Non-custodial Penalties and the Principle of Proportionality", in A. von Hirsch and A. Ashworth, (eds), above n.2, 179, 286, where they state that "the more important the interest infringed, and the greater the extent of the infringement, the severer the penalty".
45. The inviolability of physical integrity is discussed in M. Bagaric, "Active and Passive Euthanasia: Is There a Moral Distinction and Should There be a Legal Difference" (1997) 5(2) Journal of Law and Medicine 143.
46. The main objects of punishment identified by Harding and Ireland include those considerations numbered (i), (ii) and (iv) above, but in place of the other three are reputation, social relations and spiritual well-being: see above n. 17, 186. This above list of human interests compares with the hierarchy of human concerns postulated by von Hirsch and Jareborg in "Gauging Criminal Harm: A Living-Standard Analysis" (1991) 11 O.J.L.S. 1. They claim that the most important human interests are as follows: physical integrity; material support and amenity (ranging from nutrition and shelter to various luxuries); freedom from humiliating or degrading treatment; privacy; and autonomy. The hierarchy developed by von Hirsch and Jareborg was in the context of interests that are violated by criminal offences, hence it is not surprising that education, employment and family are not expressly mentioned in their list.
47. Reputation is also an interest which many covet, but it is not a proper target for criminal sanctions. For those who care about it, reputation is already stripped by the process of trial and conviction. For those who are more thick skinned no amount of adverse publicity will increase the level of harm.
48. With the glaring exception of the death penalty, which still exists in many parts of the United States. For an account of the development and use of imprisonment as a criminal sanction, see Kleinig, above n.16; Pratt, above n.21; and Harding and Ireland, above n.17, 195-198.
49. Ashworth and Player, above n.10, 260.
50. For example, the RAND Organisation in the United States estimated that the cost of enforcing the Californian "three strikes" laws will be $5.5 billion annually, and by 2002 the corrections budget will double from 9 per cent to 18 per cent of the overall State budget. In order to fund this increase in cost (and assuming no increase in tax) it is estimated that spending in areas such as higher education, workplace safety and pollution control will need to drop by over 40 per cent: P. E. Greenwood, et al., Three Strikes and You're Out: Estimated Benefits and Costs of California's New Mandatory Sentencing Law (The RAND Corp, Santa Monica, 1994).
51. Although compared to their use in the United Kingdom (and many other parts of Europe) and Australia, fines are infrequently used in the United States: see M. Tonry, Sentencing Matters (Oxford University Press, 1996) 124-126.
52. This is discussed by A. Ashworth and E. Player, "Sentencing, Equal Treatment and the Impact of Sanctions" in A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (Clarendon Press, Oxford, 1998) 251.
53. This problem has been addressed in some European countries by the concept of unit fines. Theoretically, this is a sensible idea, but it has proven to be practically unworkable in some jurisdictions due to the difficulty and time spent in determining an offender's "income". For a discussion of the difficulties which resulted in the abolishment of the unit fine system which operated in the United Kingdom between 1991 to 1993, see J. Greene, "The Unit Fine: Monetary Sanctions Apportioned to Income" in A. von Hirsch and A. Ashworth (eds), above n.2, 268, 270.
54. A proposal for unit fines was rejected by the Australian Law Reform Commission in its report Sentencing (Report 44, 1987) 59-62.
55. C. Harding and R. W. Ireland, above n.17, 195; Tonry, above n.32, ch.4.
56. See also Great Britain, Home Office, White Paper, Crime, Justice and Protecting the Public (London, HMSO 1990) White Paper, para. 4.6.
57. For example, this is a standard requirement of a "probation order" in the United Kingdom: Powers of Criminal Courts (Sentencing) Act 2000 (U.K.). In Victoria, this is a core condition of "community based orders" and "intensive corrections orders": Sentencing Act 1991 (Vic), ss.20, 37. For a good discussion of the range of intermediate sanctions available in Victoria and federally in Australia, see R. Fox and A. Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, Melbourne, 1999).
58. For example, see Powers of Criminal Courts (Sentencing) Act 2000 (UK) ss.37, 38 (which provide for the electronic monitoring of curfew orders). In 1995 in the United States 146 of 200 cities had enacted juvenile curfews: see Pratt, above n.21, 499.
59. For a discussion regarding the merits of house arrest, see R. A. Ball, C. R. Huff, and J. R. Lilly, House Arrest and Correctional Policy (Sage Publications, California, 1988) where the authors are ultimately undecided about the merits of such a program.
60. See also A. Aungles, The Prison and the Home: A Study of the Relationship Between Domesticity and Penalty (Australian Institute of Criminology, Monograph Series No.5, Sydney 1994);
61. R. Fox, "Dr Scwitzbegel's Machine Revisited: Electronic Monitoring of Offenders" (1987) ANZJ Crim. 131.
62. Home detention was rejected by the Victorian Sentencing Committee in its report Sentencing (1987) 332,
63. which adopted the contentions by the Law Reform Commission of Australia in Sentencing: Penalties (Discussion Paper, 30, 1987) 46-50. Among the noted disadvantages of home detention were its adverse impacts on co-habitants and its net-widening effects. However, there have been few detailed studies regarding the effectiveness of home detention. For an overview of the literature to date, see Tonry, above n.32, 117-120.
64. For example, see Sentencing Act 1991 (Vic), 38(1)(d); Powers of Criminal Courts (Sentencing) Act 2000 (UK) s.52.
65. For example, see Powers of Criminal Courts (Sentencing) Act 2000 (UK) s.46; the maximum number of hours of work that can be ordered is 240. In Victoria a work component is a core component of an intensive corrections order and an optional component of an intensive corrections order. In either case, the maximum number of work hours that can be ordered is 500: Sentencing Act (Vic) 1991 (Vic), s.109.
66. For example, see J. Austin and B. Krisberg, "The Unmet Promise of Alternatives to Incarceration" (1982) Crime and Delinquency 374.
67. M. Tonry, above n.32, 101.
68. For example, see ibid., ch.4.
69. Ibid., 128.
70. Ibid., 101.
71. Ibid., 107. It is not even clear that the total cost of intermediate sanctions is less than that of imprisonment: see N. Morris and M. Tonry, Between Prison and Probation: Intermediate Punishments in Rational Sentencing Systems (New York, 1990) 157-159.
72. The order should extend to unpaid work, to minimise the opportunity for offenders to circumvent the order by deferring payment until after the order's expiration.
73. Kleinig, above n.16, 293.
74. The study was conducted by Professor M. Argyle, and is due to be published shortly. One of the main guarantees of happiness (especially for men) is marriage, largely due to the companionship and emotional support which it provides. The corollary of this is also true: divorced and separated people are the least happy (even less than people who have been widowed). One quirky finding was that people who watch television soaps were happier than those who did not, but watching lots of soaps was counter-productive to happiness. See T. Reid, "Some Research That May Bring You a Degree of Happiness", The Age (Melbourne), 6 October 1998, p.10.
75. The cost of keeping a prisoner in jail for a year is about $A44.000 (about £18,000): The Age, "New Laws May Lead to New Jail", 6 January 1999, p.2. The annual welfare benefit in Australia is about $A9,000. The circumstances in which the employment sanction should be imposed is discussed further below.
76. For discussion of this principle, see Ashworth and Player, above n.10.
77. In Victoria, causing a death by dangerous driving is termed "culpable driving" and is normally dealt with by way of a jail term of about three years; see Fox and Freiberg, above n.36, 898.
78. The principle of proportionality is generally thought to sit most comfortably in a retributive system of punishment, however, I have argued that is even more compatible with a utilitarian system of punishment: M. Bagaric, "Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments" (1999) 24(2) University of New South Wales Law Journal 535;
79. and Bagaric, "The Principle of Proportionality in Sentencing: its Justification, Meaning and Role" (2000, 12) Current Issues in Criminal Justice 142.
80. A similar view is taken by J. Kleinig in Punishment and Desert (Martinus Nijhoff, The Hague, 1973) ch. VII, where he suggests that the worst possible crime deserves the heaviest (morally) acceptable punishment and that the least serious offence deserves the softest punishment possible and that other wrongs and punishments should be scaled in between.
81. For a discussion regarding the gross over use of imprisonment, see A. von Hirsch, Doing Justice: The Choice of Punishments (Hill and Wang, New York, 1976) ch. 16,
82. Censure and Sanctions, above n.5, 43.
83. The over-representation of the poor and under-privileged in the criminal system is discussed in M. Bagaric, "Double Punishment and Punishing Character - the Unfairness of Prior Convictions" (April, 2000) Criminal Justice Ethics.
84. Therefore, this paper proposes a form of "limited" substitution, not "full" substitution. For a discussion of these concepts, see von Hirsch, above n.5, 62-64. For further discussion regarding the interchangeability of sanctions, see A. von Hirsch, M. Wasik, J. Greene, "Punishments in the Community and the Principles of Desert" (1989) 20 Rutgers Law Journal 595.
85. Contrary to my proposal (and that of von Hirsch), Morris suggests that equivalence of severity is not a pre-requisite to interchangeability of sanction; all that is needed is that both sanctions serve the same or appropriate penological purposes: N. Morris, Madness and the Criminal Law (Chicago, 1982) ch. 5.
86. See also M. Tonry, "Interchangeability and Desert Limits", in von Hirsch and Ashworth (eds), above n.2, 291.
87. See Fox and Freiberg, above n.36, 414-415. For a discussion regarding the concept of sanction (or punishment) units see Tonry, above n.32, 131; above n.2, 291; von Hirsch, above n.5, 60-64.
88. I thank the anonymous reviewer(s) for this point.
89. The system of punishment in the United Kingdom is a good example of this. The White Paper upon which the Criminal Justice Act 1991 (UK) is based clearly supported a retributive theory: "the first objective of all sentencing is denunciation and retribution for the crime": Great Britain, Home Office, White Paper, Crime, Justice and Protecting the Public (London, HMSO 1990) 2.
90. However, the only consideration which in certain circumstances can trump all others is incapacitation, which is clearly a utilitarian goal. Section 1 makes clear that the only reason for going beyond a proportionate sentence is where this is necessary to protect the public. Section 28(1) allows weight to be given to any relevant mitigating factor, and in this way other utilitarian objectives, such as rehabilitation, may also be relevant. Further, matters not relevant to the just deserts principle have been invoked as important sentencing considerations, for example, the prevalence of the offence: see Cunningham (1993) 14 Cr. App (S) 444.
91. I consider this issue at length in M. Bagaric, "Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals" (2000) 24 Criminal Law Journal 19.
92. J. Monahan, "The Prediction of Violent Behaviour: Toward a Second Generation of Theory and Policy" (1984) 141(1) American Journal of Psychiatry 10.
93. Another study revealed a false positive rate of about 65 per cent: see K. Kozol, "Dangerousness in Society and Law" (1982) 13 University of Toledo Law Review 241.
94. For an overview of the literature in this area, see M. Bagaric, "Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments" (1999) 24(2) University of New South Wales Law Journal 535.
95. P. Greenwood claimed that it was possible to identify high risk robbers and burglars by identifying seven supposed risk factors (similar prior convictions; incarceration for over a year in the previous two years; convictions at a young age; time served in a juvenile facility; use of drugs in the past two years; drug use as a juvenile; and employment for less than a year in the last two years) and hence significantly reduce the number of such offences by increasing the prison terms for the high risk offenders: P. Greenwood, Selective Incapacitation: Report Prepared for the National Institute of Justice (California, 1982).
96. However, it seems that the technique used was flawed. A re-analysis of the original data resulted in less promising results: see A. Blumstein, J. Cohen, and C. Visher, Criminal Careers and "Career Criminals" (Washington, 1986);
97. A. von Hirsch, "Selective Incapacitation: Some Doubts" in A. von Hirsch and A. Ashworth (eds), Principled Sentencing (Hart Publishing, Oxford, 1998) 121, 122-123.
98. On the basis of the definition in the Criminal Justice Act 1985 (NZ), s.2. This essentially relates to crimes of serious violence, such as manslaughter, wounding and robbery.
99. See M. Brown, "Serious Violence and Dilemmas of Sentencing: A Comparison of Three Incapacitation Policies" [1998] Crim.L.R. 710.
100. M. Brown Crim.L.R. Ibid., 714.
101. M. Brown Crim.L.R. Ibid., 715.
102. Including those which go beyond simply looking at prior criminality, and consider such things as employment history and so on.
103. F. E. Zimring and G. Hawkins, Incapacitation (Oxford University Press, New York, 1995) 86.
104. J. Cohen, "The Incapacitative Effect of Imprisonment: A Critical Review of the Literature" in A. Blumstein, J. Cohen, and J. Nagin (eds), Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (Washington, 1978) 209.
105. The failure of draconian "three strikes" sentencing laws, which are founded on the incapacitative ideal and which exist in over twenty American states, further demonstrates the fiction of incapacitation: for example, see L. Stolzenberg and S. J. D'Alessio, "Three Strikes and You're Out: The Impact of California's New Mandatory Sentencing Law on Serious Crime Rates" (1997) 43(4) Crime and Delinquency 457.
106. K. Howells and A. Day, "The Rehabilitation of Offenders: International Perspectives Applied to Australian Correctional Systems" (1999) 112 Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice 1.
107. K. Howells and A. Day, Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice Ibid., 3.
108. A. von Hirsch and L. Maher, "Should Penal Rehabilitation be Revived" in von Hirsch and A. Ashworth (eds), Principled Sentencing (Hart Publishing, Oxford, 1998) 26, 27.
109. For an overview of the literature on rehabilitation, see A. von Hirsch and A. Ashworth (eds), above n.2, 7-43.
110. The distinction between punishment and a social service is employed by von Hirsch and Maher, in "Rehabilitation" in von Hirsch and A. Ashworth (eds), above n.2, 26, 30.
111. Howells and Day, above n.71.
112. Ibid., 4,5.
113. For example, in Victoria, community based orders or intensive corrections orders (which both have a large counselling/rehabilitative component) cannot be imposed without the consent of the offender: Sentencing Act (Vic) 1991, ss.20, 36.
114. This point was alluded to by Herbert Packer over a quarter of a century ago. Packer believed that the task of creating a society where the advent of crime was significantly reduced is beyond the compass of the practice of punishment or the criminal law; it would require us to "remake society itself". The process of rectifying inadequate social conditions is not one that can be accomplished in the context of processes that are devoted to apprehending, trying and sentencing offenders: H. L. Packer, "Theories of Punishment and Correction: What is the Function of Prison?", in L. Orland (ed.), Justice, Punishment and Treatment (Free Press, 1973) 183, 189.
115. See also D. Nagal, "General Deterrence: A Review of the Empirical Evidence", in A. Blumstein, J. Cohen and J. Nagin (eds), above n.70, 96 where Nagel adverts to the difficulty in distinguishing between rehabilitation and specific deterrence.
116. The Panel on Research on Deterrent and Incapacitative Effects, "Incapacitation" in A. Blumstein, J. Cohen, and D. Nagin (eds), above n.70, 66; M. Bagaric, "Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals" (2000) 24 Criminal Law Journal 19, 34-35.
117. F. E. Zimring and G. J. Hawkins, Deterrence: The Legal Threat in Crime Control (University of Chicago Press, Chicago, 1973) 29.
118. A. von Hirsch, et al., Criminal Deterrence and Sentence Severity (Hart Publishing, Oxford, 1999) 47-48.
119. The discussion regarding the events of the strike comes from K. L. Milte and T. A. Weber, Police in Australia (Butterworths, Melbourne, 1977) 287-292.
120. A. Ashworth, "Deterrence" in von Hirsch and Ashworth (eds), above n.2, 44, 51 refers to the Liverpool strike and the Danish experience is discussed in N. Walker, Sentencing (1985)
121. The view that there is a general link between punishment and crime rate also accords with econometric research that shows an inverse relationship between the incidence of violent offending and the use of imprisonment, but that the length of imprisonment is irrelevant: K. Wolpin, "An Economic Analysis of Crime and Punishment in England and Wales, 1894-1967" (1978) Journal of Political Economy 815.
122. Kleinig, above n. 16, 293. This comment is in the context of conditions in prison, but could be equally directed to the proposed sanctions.