Monday, August 9, 2010

In defense of leniency

Pedantry and mastery are opposite attitudes toward rules. To apply a rule to the letter, rigidly, unquestioningly, in cases where it fits and in cases where it does not fit, is pedantry. To apply a rule with natural ease, with judgment, noticing the cases where it fits, and without ever letting the words of the rule obscure the purpose of the action or the opportunities of the situation, is mastery. – George Polya

Woman let off for drink-driving over lack of public transport

It’s a bit of a role-reversal that the comedians are being pedantic and the lawyer is being compassionate, but that’s what we have here.

First of all, and unsurprisingly, the thing the media has latched onto is a very minor part of the case. The woman in question was let off primarily because it was a low-range infraction (between 0.05 and 0.08) and because she was a first-time offender – no criminal record and an exemplary driving record – who genuinely made a mistake. This kind of thing happens all the time in our courts – I want to stress that, all the time, and not just for traffic offenses. The only thing remotely unique about this case is that the lack of alternate ways home was a minor factor in the magistrate’s assessment that this was an error in judgement on her part and not a deliberate flouting of the law; if she had had the option of taking public transport home she should probably have done so, just in case she were over the limit. But since she genuinely believed that she was under the limit (she had had two standard drinks over a two-hour period, which wouldn’t raise most people over the limit) it would have seemed unnecessary to go out of her way to avoid driving (by sleeping in her car, as Carrie suggested). Like I said; this is a minor issue in the case that has been blown out of proportion by the media.

What’s interesting, though, is the vehemence with which the panellists oppose this kind of leniency. Carrie asks “It’s not Point-Oh-Five-ish, it’s Point-Oh-Five, isn’t it?” Rochford sees this as a sign that “the law just doesn’t work.” Hughesy (though joking) suggests that the ads be changed from “If you drink, then drive, you’re a bloody idiot” to “If you drink, then drive, you’re a bloody idiot – unless you’re a pretty 27-year-old who lives in an outer suburb”. This betrays two things – one, egotistical indignation that comes from people who are angered at what they perceive as someone being treated better than they do; and two, ignorance of the point of our legal system and the way in which it functions. I’ll address the latter first.

In a very broad sense, the legal systems of Australia and most other Western countries are based on the idea of rehabilitation. There are still some throwbacks to the old ‘punishment’ style of running things, but to simplify, modern laws and their punishments are designed to prevent people from doing certain things that could harm others, and if they do so, to prevent them from doing it repeatedly. This is why we have good-behaviour bonds, suspended sentences, parole; why prisons are now more often referred to as ‘correctional facilities’. What’s done is done, and nothing that we do in the here and now can change it; all we can concern ourselves with is trying to make sure it doesn’t happen again. An extreme example of this is the way we handle cold-blooded murder differently to how we handle killing in self-defence, but a more relevant example would be defrauding Centrelink. Due to the complicatedness and often absurdity of Centrelink’s rules, a lot of people end up receiving money they’re not entitled to by way of accidentally filling in a form incorrectly or forgetting to notify Centrelink of something. A small number, however, deliberately rort the system; fake disabilities and so on. The former are just expected to pay back the extra money, while the latter are brought up on fraud charges – our system differentiates between honest citizens who make mistakes and people who deliberately flout the law.

This is why Henley was not convicted – because she was seen by the magistrate to be a law-abiding citizen and a sensible driver who had merely made an error in judgement. The ordeal of her arrest and trial would be more than enough to ensure that she didn’t repeat-offend, so the magistrate considered punishing her further to be unnecessary. The public transport issue doesn’t even really come into consideration on any meaningful level; this isn’t anything new, this is just another example of the way our legal system works.

Now, the reason the panellists get so irate over this is because they see themselves as the victims. They make the effort to avoid driving when they’re over the limit, so why should this woman get off just because of where she lives? There is a lot of complicated identity theory behind this (basically a sharp distinction between the self and the Other, with a little Fundamental Attribution Error on the side) but basically, they will on the one hand say that it’s unfair for her to get off when they work so hard to not break the law, but on the other hand do exactly what she did if the roles were reversed. I guarantee you, without a shadow of a doubt, that if one of them were to be picked up on a minor offence – something that was a lapse in judgement rather than a deliberate flouting of the law – they would get equally indignant if their good record and character weren’t taken into account in the way Henley’s was. But this doesn’t seem to occur to them, so they start opposing leniency.

They should be thankful they live in a system with such leniency. Would the panellists really prefer to live in a country where punishments are harsh and absolute, and innocent mistakes are punished the same way as deliberate, criminal acts? Rochford sees this leniency as proof that the system doesn’t work – this is proof that it does.

As to it setting a precedent, encouraging others to try and excuse their way out of drink-driving offences based on their postcode? As Phillip Stewart said, the court case itself doesn’t do that at all – but by blowing it out of proportion and repeating over and over that it does set a precedent, the media has.

(I’m primarily responding to 7PM’s coverage but this article gives some background info; the beginning is quite as biased and sensationalist as 7PM’s coverage, but note what Lionel Rattenbury has to say at the end)

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