On Sentencing

Here is an excerpt from a letter in the Straits Times Forum today:

Nov 3, 2005
Laws shouldn't be too far off global standards

A MAN punched a lawyer in front of a judge and was sentenced to six years in jail. When he appealed to the High Court, another four years were added to his sentence, a decision which was later reversed.

A shoplifter was jailed for 11 years.

Drug traffickers caught with as little as 15g of heroin are sentenced to death. According to Amnesty International, since 1991, 400 people have been hanged, mostly for drug trafficking.

Singapore is known for its strong emphasis on law and order. However, one cannot help but feel that something is amiss in the way court sentences are sometimes meted
out.

Sentencing is a complex topic. The general public doesn't understand it. What often happens is that people read newspaper articles and compare those brief little reports of court cases. Then they are amazed or outraged that Mr so-&-so received such a heavy sentence for what appears to be a minor crime, while another Mr so-&-so received such a light sentence for what appears to be a serious crime.

In fact, when imposing sentences, the courts regularly take into account a wide range of factors which the press doesn't tell you about (due to lack of space, the journalist's own ignorance or simply because those factors aren't considered newsworthy). Let's take a look at the three examples. A caveat - I personally don't know anything about these cases and have not even read the previous newspaper articles about them. I speak generally on the law of sentencing, using these three examples to illustrate.

A shoplifter was jailed for 11 years. This seems to be an extraordinarily heavy sentence for shoplifting. In fact, if this person was sentenced under the ordinary provisions of the law relating to shoplifting, he could not have been sentenced to 11 years (that is well above the legal maximum sentence for shoplifting). What has happened here is that the person has been punished under a separate regime. It is either "corrective training" or "preventive detention" - a set of laws under the Criminal Procedure Code.

What is corrective training? What is preventive detention? Well, it means that you have committed crimes more than once. You are a repeat offender. You keep committing crimes again and again. So finally the law tells you, "One last chance. You've already had lots of chances. The next time you think of committing a crime again, no matter how minor, just remember that due to all your past convictions, you now legally qualify for corrective training or preventive detention. That means you can get a heavy sentence even for a minor offence." The man is released. He promptly commits a crime again. So he gets 11 years.

How about the 15 g of heroin - isn't that very, very little? Like a pinchful of powder between your forefinger and thumb. Well, not exactly. 15 g, in Singapore law, refers to the net weight of heroin, not the gross weight. Think of an orange. One average orange contains about 70 mg, or 0.07 grammes of Vitamin C. To get 15g of pure Vitamin C, you need about 214 oranges - that's plenty, plenty of oranges. Most of an orange is just water, vegetative membrane, fibre and so on.

Heroin, (in the form that is illegally sold), is similarly impure. The purity level varies, of course. To get 15g of pure heroin, you probably need a plastic packet as large as the average 3-in-1 instant Nescafe coffee packet. I'm not referring to the 3-in-1 Nescafe sachet. I'm referring to the kind of Nescafe packet which holds 40 or 50 sachets of instant coffee inside.

How about the man who punched the lawyer? I'm not quite sure about this. The brief mention in the ST Forum doesn't tell me enough. Firstly it should not be possible for the sentence to be imposed, then revised, then revised again. That's because the Singapore system allows for one appeal only. In other words, the sentence can be imposed, then revised, but typically there would be no further route for a second revision (or for that matter, a second upholding - i.e a "no change" decision). If someone can tell me more about this case, I'll comment further.

Now - what is my real point? Do I mean to say that actually, our judges are perfect and sentencing in our courts is perfectly rational? Nope. In fact, few things in the criminal legal system of any country are less "rationalisable" than sentencing. Unlike certain other aspects of the law, sentencing can never be a pure logical exercise. Right at its heart are a rash of unresolvable equations. Here are a few to think about:

How large a fine = one day's imprisonment?

How many days of imprisonment = one stroke of the cane?

How many years of imprisonment = one death sentence?

How large a fine for a rich man = how large a fine for a poor man?

How many molests = one rape?

How many shoplifting offences = one violent robbery?

As Mr Wang once put it, it is like comparing apples and oranges and rambutans. Check out his lucid exposition in the comments section of this post.

Now obviously sentencing is not really as arbitrary and impossible as I may have made it out to be, in this post. After all, sentencing has had a long time to work itself out. Over the past century, a complex set of legal principles and rules has developed to guide sentencing in the Singapore courts. The system is not perfect - it never will be, there are too many dynamic variables - but it's not as amazingly strange and incomprehensible as you might think. The point is that these legal principles and rules are quite intricate, quite complicated, and you really wouldn't understand the topic very well unless you have the opportunity to delve into it. In the meantime, the judges will have to go on judging.

If you asked me what I would change about the system if I could .... I would need to write a thesis, maybe two. There are too many things. Yet anything I propose is, after all, just one man's opinion - eminently fallible. In another life, perhaps ...