Monday, August 22, 2011

Irish Times: "Legal System Provides No Guarantee of Justice"

The newspaper has an opinion piece today that applies a broad tar brush to the legal system, with some wild claims. If the point is that the system needs reform - which one can readily accept - it has been undermined by some pretty bizarre argumentation. A detailed rebuttal would be too long for a blog post so I'll focus on just a few points. The piece starts off with an attack on legislative drafting followed by the assertion that many laws survive constitutional scrutiny only because people cannot afford to challenge them. This is a tall claim given the deference granted by the courts to the legislative branch in constitutional challenges. Moreover, the connection between poor drafting - I doubt if lawyers in any jurisdiction have ever come across the perfectly drafted law - and constitutionality is not substantiated. There is also no evidence offered for the success rate of constitutional challenges, when people can "afford" to bring them. If this is indeed high, it might support the point that the legal system is doing its job. One does not doubt the need for good drafting but it is overstated in this context.

Then the piece attacks "lenient sentences" awarded by the courts and claims that the community has been "demoralised" as a result. The author claims that those released early are committing violent acts and victims of serious crime are "so badly treated." Where is the data for recidivism for violent crimes to support this claim? One study between 2001-2004 found that recidivism in Ireland was highest for property crimes. Sex crimes - which typically atract the highest amount of popular outrage - had much lower recidivism rates. Popular opinion is typically in favour of draconian sentences but what is the evidence that Irish judges typically impose lenient sentences for violent crimes? Lenient compared to UK judges? US judges? One would have expected some evidence to support these sorts of claims, but once again all we get is a bald assertion. Jail is extremely expensive and the evidence indicates that Irish prisons are overcrowded. If violent criminals are indeed being treated leniently, evidence must be collected and resources ought to be directed at remedying the problem. Knee-jerk statements unsupported by evidence are not very helpful.

Next is an attack on wigs and gowns - valid. And an attack on the DPP's lack of accountability. These are sound criticisms but again there is no real substance beyond two statements buried in the middle of the piece. 

The piece also shows inefficiencies in the civil justice system caused by the separation between Solicitors and Barristers with a putative client "Shiela." There is little doubt that the separation of the profession imposes unnecessary transaction costs and is inefficient. That point could have been made more effectively without the examples provided in the piece. Many of those examples - tardiness by barristers taking silk, etc - do not do much for the argument as they only speak to individual instances of lack of professionalism.

In conclusion, yet another opportunity to make the case for reforming the legal system goes to waste.