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July 4, 2012

Judge down under laments mandatory 20 years (with parole) for brutal contract killer

The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated.  With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling.  The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:

A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair".  Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.

Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory.   "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.

Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said.  Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case.  "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.

Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....

During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived.  The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.

His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.

Halfpenny was questioned by police a few days later and confessed.  He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.

The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.

So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free: 

--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder.  This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty.  The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.

--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery.  This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.

For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post.  Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.

July 4, 2012 at 07:13 AM | Permalink

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The judge is right it is a disgrace: All the defendants should be sentenced to LWOP or given the death penalty. Who cares if there is remorse or a rat is willing to testify. Just goes to show you how insane liberals judges are. A life is not worth even 20 years. This is why we need the death penalty.

Posted by: DeanO | Jul 4, 2012 9:00:32 AM

I think you can safely say that the United States is a pretty big statistical outlier when it comes to sentencing when compared with other first-world democractic nations, and I think that can be said without passing judgment on whether our sentencing is more or less just than that of other nations.

Even as liberal as I am when it comes to sentencing issues, I do think that 14 years, even with cooperation, for a brutal contract killing is pretty short. And, of course, I agree that mandatory sentencing is stupid, and is politics pure and simple. While it may give the system a certain degree of uniformity in sentencing, it also produces numerous injustices where the mandatory minimum penalty is in no way even resembling of something that is proportionate to the circumstances of the actual offense.

Posted by: Guy | Jul 4, 2012 10:59:16 AM

"while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole."

Apart from the policy issue--there is a rule of law point. The five Justices just said so. It's not law.

Posted by: federalist | Jul 4, 2012 1:08:32 PM

Link to the Australian decision.

http://www.supremecourt.nt.gov.au/documents/sentencing_remarks/2012/7/html/Halfpenny_03072012_21136189_SenNet.htm

I think it provides some context. My interpretation is the judge "laments" the fact the defendant didn't plea bargain which may have been a reflection of his diminished mental ability. Does it excuse his actions - no - but at least some context is provided.

Posted by: Robert | Jul 4, 2012 4:43:09 PM

Another reason to be grateful to live in the United States.

Posted by: Bill Otis | Jul 4, 2012 5:31:49 PM

"I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system"

"Another reason to be grateful to live in the United States."

Because, gosh, we sure wouldn't want to have to put up with Australian murder rates, would we? (1.34 per 100,000 compared to 5.0 in the US, according to this source)

Posted by: Gritsforbreakfast | Jul 4, 2012 7:28:08 PM

"Because, gosh, we sure wouldn't want to have to put up with Australian murder rates, would we? (1.34 per 100,000 compared to 5.0 in the US, according to this source)"

Any evidence that the lower Aussie murder rate is BECAUSE of their sentencing approach?

I didn't think so.

Posted by: TarlsQtr | Jul 4, 2012 9:12:27 PM

Grits --

Somehow I just knew you'd attack any suggestion of gratitude for living in the United States.

Happy Fourth of July to you too.

Posted by: Bill Otis | Jul 4, 2012 10:16:20 PM

I'm an aussie lawyer. I'd love to hear (at least some of) the host of reasons to prefer one sentencing regime over another. I read blogs like this one sometimes just to cheer me up that things aren't sooooo bad down here, so the comment is a bit of a surprise.

While our various jurisdictions slowly align themselves to the Life Head Sentence, with minimum of twenty years non parole period (for a 'low end' murder) unless relevant 'special circumstances' are found to exist there has been some debate over the utility of the 'special circumstances' caveat. In cases like the one above, the logic is that the significance of making a case (eg via testimony against co-accused) outweighs the vengeance factor of keeping the testator locked up. That's a value call.

As to the death penalty, it has become reasonably evident that the last man executed in Australia was 'not guilty' of the crime for which he was hung. That kinda says it all.

Posted by: Marko | Jul 4, 2012 11:07:18 PM

To be fair, Australia's murder rate is only about 1/4 of the United States', so apparently they don't need lengthy prison sentences to learn that murder is wrong.

Posted by: C.E. | Jul 4, 2012 11:25:02 PM

C.E. --

Q: What does the overall murder rate in Country X tell you about the justice of Sentence Y for a particular crime in Country X (or Countries A, B, or C)?

A: Zip.

Aggregates have little to no use in illuminating the correct sentence in any particular case. Liberals were quite insistent on this point when Miller v. Alabama came down, but now, only a few days later, seem to have forgotten it.

Posted by: Bill Otis | Jul 5, 2012 7:42:28 AM

I'm grateful to live in the United States, Bill, just repulsed by the fact that of all the things to love about this country THAT's the thing you're thankful for. How you keep from choking on your own bile when singing the "land of the free" part of the anthem is beyond me.

TQ, similarly, you have zero evidence that harsher penalties lead to significantly more crime reduction than Australia's, and on its face their outcomes are better. Or, if you like, compare New York and Texas' crime rates for two American states which have alternatively chosen the low-incarceration/high-incarceration route. And it wasn't long ago NYC had among the highest crime rates in the country: Their crime drop has basically doubled Texas' over the last decade. Nobody can fully explain the reasons for the difference, but jurisdictions that lock up fewer people have less crime and the evidence super-harsh sentencing schemes reduce crime more than other approaches is scant indeed.

Posted by: Gritsforbreakfast | Jul 5, 2012 7:43:03 AM

Whoops, meant to say NY's crime drop was twice TX's over the last TWO decades. Apologies for the typo.

Posted by: Gritsforbreakfast | Jul 5, 2012 7:45:12 AM

Grits --

"I'm grateful to live in the United States, Bill..."

Might I ask why? Your comments give little to no evidence of it.

"...just repulsed by the fact that of all the things to love about this country THAT's the thing you're thankful for."

Learn to read. What I said was (emphasis added), "ANOTHER reason to be grateful to live in the United States." Do you know what "another" means? Clue: It means there's more than one. Thus your notion that serious sentencing is "the thing" (singular) I'm grateful to the United States for is hogwash, as you knew when you typed it.

Any regular reader of this blog already knows whose posts, as between us, have expressed gratitude for living in the United States, and whose are routinely laden with acid criticism.

"How you keep from choking on your own bile when singing the 'land of the free' part of the anthem is beyond me."

Many things are beyond you, including, quite recently, the difference between a guilty plea and a no contest plea. A few days ago, you claimed to be linking a case in which a defendant had been exonerated after pleading guilty. In fact, when I read the article you linked, it turned out that the defendant never pled guilty. He pled no contest, which is specifically a REFUSAL to admit guilt.

Also beyond you is whether the local police have accosted you with drawn guns. You made that exact claim, only to have to admit its flagrant falsehood after videotapes emerged showing that they did no such thing.

So please do continue with your always pleasant and fun-to-read lectures about choking on bile, etc.

Posted by: Bill Otis | Jul 5, 2012 8:25:36 AM

Grits stated: "TQ, similarly, you have zero evidence that harsher penalties lead to significantly more crime reduction than Australia's, and on its face their outcomes are better."

Well, I do admit to having this obscene habit of not providing evidence for claims I never made...

Therein lies the difference. You made a claim. I did not.

Posted by: TarlsQtr | Jul 5, 2012 9:08:15 AM

@ Bill:

We seem to have one of the highest murder rates around, and, of course, we hand out the longest sentences and incarcerate a higher percentage of our population than any other place on earth.

So it seems to me what we can glean from our sentencing scheme is one of the two following propositions:

(1) Without draconian sentencing, our streets would literally be running red with blood or,

(2) The two don't have much at all to do with one another.

Posted by: Guy | Jul 5, 2012 3:27:56 PM

Guy --

Two points.

First, aggregate statistics tell you zip about what is a just sentence in any given case (which is, after all, the subject of this entry). Do you disagree?

Second, aggregate statistics DO tell you something about longstanding policy. The longstanding policy in this country has been to incarcerate more criminals for longer sentences. At that same time (about the last 20 to 25 years) the crime rate has fallen by more than half.

The idea that these two things are unrelated is preposterous. I have previously referenced studies (Levitt and Spelman) concluding that a quarter or more of this astounding drop is due to increased incarceration.

Do you want to go back to the high crime days of the sixties and seventies by returning to the failed "compassionate" policies then holding sway? Do you want the increases in murder, rape, robbery, aggravated assault, etc. that were there before and will return with them?

Posted by: Bill Otis | Jul 5, 2012 6:09:05 PM

Bill:

I agree with you that aggregate data has nothing to do with individual cases, and what's just depends in large part on how one defines justice. But that seems to be a non sequitur in regards to the simple fact that the US is an outlier in the international community in terms of sentencing.

As to the second point, I would argue it's not quite so simple. We are a world leader in incarcerations, and yet our crime rates, particularly for homicide remain well and above the average for other democratic first-world nations. I'm also familiar with Levitt, and I believe in the work he co-authered with Steven Dubner, they concluded that Roe v. Wade was actually responsible for the majority of the variation in the drop in crime (such that, 18 year later, the people who would have otherwise become the defendants on the dockets weren't there as they were aborted by mothers who either didn't want them or weren't ready to have them).

What also strikes me is that if we're just talking about a quarter of the variation of crime to be attributable to incarceration, doesn't that mean that it's not a very efficacious means of crime control? Particularly in light of the tremendous burden our incarceration crazy has put on state budgets? Factor in the view of our prison industrial complex as little more than warehousing as contributing to the ~60% recidivism rate, and one starts to wonder if there aren't more efficacious and moral ways of going about combating crime.

Cheers.

Posted by: Guy | Jul 6, 2012 5:05:35 PM

Guy --

Let me just cut to the chase.

In 1990, the country had 14,475,600 serious crimes.

After 20 years of building up "incarceration nation," the country in 2010 had 10,329,135 such crimes, a drop of a staggering 4,146,465 crimes PER YEAR.

One quarter of that (the fraction Levitt and Spelman attribute to increased incarceration, and you do not dispute) is 1,036,616.

That's 1,036,616 fewer rapes, robberies, aggravated assaults, murders, muggings, yokings and you name it per year.

Are you willing to unwind "incarceration nation" and thereby bring back the 1,036,616 serious crimes it averted, per year?

Of course, over, say, a five year period, the crime increase will be five times the per year amount, or 5,183,080 additional crimes.

Are you willing to bring back a total of over five million more serious crimes over that five year period, crimes the last two decades have shown we know how to prevent by putting away the people who commit them?

And let me be yet more specific. During the 1990 - 2010 period, the number of murders per year dropped by 8,692 (23,440 to 14,748). One quarter of that is 2,173.

Are you willing to see 2,173 more people murdered per year in order to get rid of "incarceration nation"?

Are you willing to see over 10,000 more people murdered over a five year period?

Now let's say Levitt and Spelman (and I) are way, way off, and have inflated things by a factor of two -- i.e., that these figures are twice what they really are.

On that (undocumented and striclty made-up) assumption, are you willing to see 5,000 more people murdered over the next five years than would be the case if we maintain "incarceration nation"?

On that same gratuitously-favorable-to-your-side assumption, are you willing to see almost 2.6 million additional serious crimes?

If abortion (and other things like more police and targeted policing) have played a role as well (which I will assume arguendo), that's not the question here. The question is, given the massive crime decrease attributable JUST TO INCARCERATION, are you willing to go back to the relatively light incarceration of more than 20 years ago, now that you have the specifics of the benefits incarceration has brought about?

Cheers.

Posted by: Bill Otis | Jul 6, 2012 7:18:58 PM

Bill,

You're failing to take into account what I would assert would be the costs of incarceration nation -- namely that the system sets itself up for repeat customers. Inmates become institutionalized, and then dependent on said institution. It's not just as simple a back-of-the-napkin statistical problem that you're making it out to be. In other words, how many *more* murders, rapes, muggings, etc could have been averted if instead of relying on draconian sentencing we gave some thought to what our criminal justice system should be about? And to put it yet another way, while even if I agree with you that incarceration is certainly responsible for some decrease in crime (which your argument would certainly capture) it doesn't account for negative externalities of the prison industrial complex.

Also, there's still the issue that we have one of the harshest sentencing regimes around and also one of the highest rates of violent crime. Is it that Americans are intrinsically more violent, and need to be incarcerated more?

My position certainly isn't that prisons need to be gotten rid of -- prisons are a part of civilization. One of the main functions of government, IMO, is to mete out punishment for crimes. It's an essential part of civilization, I think. Rather, the idea is that we should be thinking about why is it that other similar, first-world democracies don't rely on incarceration *nearly* to the extent that we do, and yet they have significantly lower crime rates? Maybe there's something lurking in the other 75% that we need to have a look at, and maybe there's a way we can make incarceration more effective for all parties involved: victims, defendants, and society.

Cheers.

Posted by: Guy | Jul 6, 2012 10:10:40 PM

Guy --

"You're failing to take into account what I would assert would be the costs of incarceration nation -- namely that the system sets itself up for repeat customers."

If incarceration bred repeat crime, then, with the increased incarceration of the last 20 years, we would have more crime. But we don't; we have massively less crime.

Nor is it otherwise established that incarceration encourages crime. At most, one could say that incarceration often fails to discourage inmates from continuing to do what they were doing in the first place that landed them in jail. That is hardly a good thing, but it's not at all the same as saying that incarceration PRODUCES crime.

The basic point is this: We know that incarceration in this country works, and works very well. We also know that the more forgiving system of the sixties and seventies that it replaced was a disaster -- the crime rate went up and up.

We would be nuts to trade in a solution that works to go back to a system that fails.

"...we have one of the harshest sentencing regimes around and also one of the highest rates of violent crime. Is it that Americans are intrinsically more violent, and need to be incarcerated more?"

Comparisons to other countries tell us next to nothing. There is too much variation in demographics, culture and history. It would be like trying to compare the (low) violent crime rate in Utah to the (high) violent crime rate in New York. The states are so different in the ways I have mentioned that comparing the two (though it would be favorable to my side of the argument) is meaningless. The problem is just that much more severe in comparing countries to one another.

Lastly, your answer seems speculative and general, rather than specific. I asked specific questions in my last post, and I wonder if you would care to answer them. For example, my first question was, "Are you willing to unwind 'incarceration nation' and thereby bring back the 1,036,616 serious crimes it averted, per year?"

Now you might say "yes" on the theory you suggest, to wit, that I have ignored "the costs of incarceration nation." And if that is your answer, fine. But I'd like to know, one way or the other. And ditto for the other questions I posed.

Cheers.

Posted by: Bill Otis | Jul 7, 2012 8:35:15 AM

Bill:

We don't have massively less crime, do we? I mean, we have roughly the same crime rates, per capita, now as we did in the mid 1960's even though we have many orders of magnitude more people in jails and prisons, right?

I think what we "know" is at least what we can back up with evidence, and you're right to point out that Levitt identified increased incarceration as responsible for a quarter in the drop in crime rates. What you fail to point out, however (I actually decided to go have a peek at the study) is that the majority of crime that Levitt estimates is prevented by incarceration is relatively minor offenses such as property crimes.

Again, even with acknowledging the impact that incarceration has, one wonders exactly what's lurking in the shadows. What accounts for the nearly 80% in variation in crime rates? Incarceration is certainly a tool in reducing crime, but it should not be the only tool, nor may it even be the most effective way to go about reducing crime. Indeed, given it's extremely high cost both in terms of dollars and years, I would be surprised if there weren't more cost effective ways of going about it. For example, I'm familiar with research suggesting that a much more effective way of going after drug offenders is focusing on treatment as opposed to incarcerating them for eons and eons. More cost effective, too.

And that dovetails with something that I think gets lost in the shuffle in all the discussions about this. The problem with incarceration is that it's always in response to crime. It's not about crime prevention. Even the other factors that Levitt mentions in his study, such as the legalization of abortion and increased policing, are at least about crime *prevention* -- meaning that the predicate offense never occurs. In fact, of the factors that I am aware of, it's the only factor that's involved in reducing crime after a crime has already occurred. That being the case, it seems to me that we shouldn't regard incarceration as the vanguard in crime prevention when it certainly doesn't do a damn thing to prevent the first crime from occurring, and is tremendously expensive both in terms of actual cost and then you have to worry about reintegration and the ~60% recidivism rate.

"Are you willing to unwind 'incarceration nation' and thereby bring back the 1,036,616 serious crimes it averted, per year?"

Your premise is flawed -- as I indicated in my previous post. As I pointed about above, Levitt's study indicates that the majority of crimes averted by incarceration nation are relatively minor offenses. That makes sense, too, if you think about it: under even a minimal sentencing regime, people who commit serious offenses are likely going to be locked up anyway. When you start casting the new farther and farther out, you're going to start catching smaller and smaller fish.

So, to rephrase your question to reflect reality, would be I be willing to see more low-level property and drug crime in exchange for rolling back our prison industrial complex? Absolutely. I'd then like to take all that money that we save from not having the prisons breaking the backs of various state governments and funnel it into things that research indicates actually prevents crime, unlike incarceration. Plus, it doesn't have the same moral debasement of sending someone away for life for stealing something, or giving a drug addict decades behind bars.

Cheers.

Posted by: Guy | Jul 7, 2012 6:08:48 PM

Guy --

"We don't have massively less crime, do we? I mean, we have roughly the same crime rates, per capita, now as we did in the mid 1960's even though we have many orders of magnitude more people in jails and prisons, right?"

You could ask the same thing substituting the "mid 1860's" for the "mid 1960's" and make an even more telling point.

Except that it's not telling. It's legerdemain.

The relevant period is from the takeoff of "incarcertaion nation," i.e., from where the curve starts to go up sharply. That is 20 to 25 years ago, so that (from 1990 on) is the comparison period that makes sense to focus on, not one starting 50 years ago, when no one was complaining about "incarceration nation."

As I have stated, using statistics you don't dispute, the crime rate now is less than half what it was at the start of the relevant "incarceration nation" period.

Even the New York Times gets it (sort of). As it said in this piece (http://www.nytimes.com/2011/05/24/us/24crime.html):

"The number of violent crimes in the United States dropped significantly last year, to what appeared to be the lowest rate in nearly 40 years, a development that was considered puzzling partly because it ran counter to the prevailing expectation that crime would increase during a recession.

"In all regions, the country appears to be safer. The odds of being murdered or robbed are now less than half of what they were in the early 1990s, when violent crime peaked in the United States. Small towns, especially, are seeing far fewer murders: In cities with populations under 10,000, the number plunged by more than 25 percent last year."

See also Kent's post on this subject here, http://www.crimeandconsequences.com/crimblog/2011/05/steady-decline-in-major-crime-.html, and mine here, http://www.crimeandconsequences.com/crimblog/2012/06/the-mystery-continues.html

Please note that, contrary to your suggestion that "the majority of crimes averted by incarceration nation are relatively minor offenses," the NYT article correctly notes that perhaps the most startling decrease is in the incidence of murder.

Cheers.

Posted by: Bill Otis | Jul 7, 2012 6:37:32 PM

Bill:

1990? I believe that you're off by about a decade. Incarcerations began to uptick rapidly during the late 1970's and early 1980's continuing until only very recently.

It's not "my suggestion" that the majority of crime decrease was for minor offenses like property and drug crimes. It's Levitt's. I'm just reporting from the study which you were hitching your wagon to.

Also, the title of the NYT article you linked to is "Steady Decline in Major Crime Baffles Experts," not "New Analysis Shows Increase in Prison Population Responsible for Decrease in Crime." Sooo....I'm not sure really what you want me to do with that. Could it be that draconian sentencing is at least in part responsible for the decease? Sure. But at this point, it's really just complete speculation. But I'd be willing to bet there's probably other factors at play. Probably 80% or so worth of other factors.

Cheers.

Posted by: Guy | Jul 7, 2012 9:41:44 PM

I agree with statement that all the defendants should be sentenced to LWOP or given the death penalty. Who cares if there is remorse or a rat is willing to testify. If anyone need death penalty then its fine, no place for any objection.seattle lawyer

Posted by: Seattle Lawyer | Jul 20, 2012 6:31:43 AM

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