The three worst things about criminal law

If you ask a US academic and an Australian judge to discuss the worst features of criminal law, what do you get?

An hour of discussion, comparison, not infrequent disagreement, and some extremely insightful observations about the pitfalls currently built into the US and Australian systems.

Image of lecture

The fourth event in the 2016 ‘Judges in Conversation’ series brought together the Hon Justice Mark Weinberg of the Supreme Court of Victoria, and Professor Paul Marcus, Haynes Professor of Law at The College of William and Mary in the USA, to discuss the topic ‘the three worst things about criminal law in our systems: a US-Australia comparison.’

Jointly presented by Melbourne Law School and the Federal Court of Australia, this public lecture was held at the Federal Court in Melbourne on Thursday 6 October.

In an opening observation that seemed to resonate throughout the conversation, Justice Weinberg singled out the sheer complexity of criminal law in Australia as its worst feature.

His Honour gave as an example the Federal Court judge who wrote to him of the “absurd and utterly incomprehensible junk” that he found himself trying to explain to a jury of lay people. The case before the judge was a Corporations Act appeal on a criminal provision, and he was astounded at the complexity of the offences that the jury had to try and comprehend before reaching their verdict.

“If a judge of the Federal Court is moved to send me a note of that kind in dealing with a jury of lay people, then there is something seriously wrong,” Justice Weinberg said.

Discussion neatly flowed from the general complexity of both systems into the second problem area – summing up, where a judge summarises the relevant law to a jury before they make their decision.

Recognising that each of the 51 US states can do things a bit differently, Professor Paul Marcus said the fact that US judges don’t sum up is “one of the best and worst features” of their criminal system. On one hand, no summing up removes the risk of judges complicating or oversimplifying complex trial proceedings. On the other, if a judge says nothing about the case, can a jury of lay people follow the actual trial unassisted?

In Australia, the difficulty seems to be that judges say too much. In the US, Professor Weinberg said they could perhaps engage a little more.

The third difficulty raised was what Justice Weinberg described as the “complex art of sentencing.”

The problems of sentencing are highlighted in the US, which, in Professor Marcus’ words, has “one of the harshest sentencing regimes in the world.” In California, jails are overflowing to the point where prisoners have to be released because of the unspeakable conditions they are being held in.

What is the cause of this phenomenon? Perhaps US attempts to create more uniform sentencing, which has in turn taken discretion away from judges, is to blame. Although uniformity on its face seems a good thing, when statutes require certain sentences without adequate provision for discretion, the result can be undesirable.

“Unfortunately,” said Justice Weinberg, “Australia is moving in the same direction as the US.”

His Honour and Professor Marcus both spoke of young offenders with good prospects of rehabilitation who nonetheless find themselves behind bars due to the proscriptive requirements of legislation.

The list of criminal law’s undesirable attributes didn’t end at three. Both speakers went on to identify access to justice, juvenile offenders and white collar crime as other significant issues, with lessons to be learned from across the Pacific in tackling them.

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By Emma Jukić