Fabian Mika’s lawyer is (mostly) right

Fabian Mika’s lawyer is appealing Mika’s manslaughter sentence, suggesting his cultural background and upbringing should have be taken into account as a mitigating factor in sentencing.

It looks like this is being met with the predictable outrage when anyone notes there’s still ethnic inequality in NZ, coupled with the usual panic whenever someone suggests people’s lives are more complicated than just personal choice.

The judges are no doubt right to point out the logistical difficulties of the lawyer’s idea. Nonetheless, the lawyer’s argument touches on a serious problem with punishment/the ‘justice’ system in general: it only responds to individuals for their individual choices. But no individual choice happens in a vacuum.

The justice system doesn’t deal with the wider social determinants of individual choices. In many ways, it can’t: it falls outside of the justice system’s purview to deal with (for example) economic inequality, the chief cause of high violent crime rates.

But the ‘justice’ system should at least acknowledge that these social determinants are very much unequal from one person or group to another.

You can accurately predict from someone’s class, ethnicity, or family situation that they’re a lot more likely to end up in jail than I am. (Or more likely to have a partner or parent in prison). That’s not fair, and it’s not chosen.

Yes, convicted criminals have made choices, I’m not denying that. But the social determinants of crime and punishment are true too, and too often we deny that.

One of the first lessons you learn studying criminology is that if you’re disadvantaged in society in general, you’re also disadvantaged at every stage of the crime and punishment process:
– examples of crime vs. other examples
– opportunities for crime vs. other opportunities
– likelihood of being in extreme need
– laws and definitions of crimes
– types of crimes you’re likely to commit
– likelihood of being suspected/pursued by police
– likelihood of being caught
– access to good legal help
– likelihood of being convicted
– harshness of sentencing for your crime
– your specific sentencing
– how you’re treated by society after your punishment

So I definitely think someone’s experiences and social position should be considered among the mitigating/aggravating factors in sentencing. But that only deals with the tip of the iceberg of the problem: socio-economic inequality leading to manifold inequalities in crime and punishment.

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