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Unduly and Harshly Punitive?

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Unduly and Harshly Punitive?

Claims that the British criminal-justice system wrongly imprisons thousands don’t square with the evidence. Summer 2019
Politics and law
The Social Order
Public safety

Is human nature good, bad, or indifferent? Is it immutably fixed, infinitely malleable, or something in between? These questions are not susceptible to definitive answers, perhaps, but those of us who like to reflect on that peculiar species (ourselves) whom Alexander Pope called “the glory, jest and riddle of the world” nevertheless feel obliged to ask them. I don’t think we have gotten much past Pope’s list in our fundamental understanding of ourselves—claims to the contrary by Darwinists, Marxists, Freudians, and others notwithstanding.

The best answer that I can give to these conundra, which I concede is completely unscientific, is as follows. Men are born with a natural propensity to good or evil, on a kind of continuum and in a normal distribution—that is, on a bell-shaped curve, with most people fitting somewhere in between the very best and the very worst. There certainly seem to be those who, from an early age—indeed, from the earliest age at which independent action is possible—behave in a way that most people would deem evil. As soon as they are able to pull the legs and wings off a fly, for example, they do so; as soon as they are able to destroy things for no adequate reason, they do so. Their pleasure comes from causing harm to others, and they take such pleasure, if not quite for the duration of their lives, at least for many years.

Their bad character, then, seems a quasi-neurological, genetic, or at least congenital condition. They are not mentally deficient in the usual sense of the words; rather, they suffer from (or make others suffer from, for they rarely complain of it themselves) what the British doctor and anthropologist James Cowles Prichard first called, in 1835, “moral insanity.” Philosophers may puzzle over how far such people should be held responsible for their actions: for to account someone morally responsible for his acts requires an ability to act other than how he did act. I point only to their existence.

What’s less often noticed is that some people are unusually sweet-tempered, good, or kind from birth, and remain so for the rest of their lives. They are without malice toward others, even when others exploit them or repeatedly do them a bad turn. They are charitable in their thoughts and never seek personal advantage by doing people down. Strangely enough, they often seem to go through life with a kind of protective aura around them, that no evil can fully penetrate and destroy their benevolence. The same question arises with regard to them as with to their opposites: How far is someone to be praised for his goodness, if he is good by nature?

Whatever the answer, most of us, I take it, fall somewhere between the two extremes. Does this mean that we are incapable of change, either as individuals or as societies? It is the glory and riddle to which Pope referred that we partly make our own characters—not in every case, of course, and not completely, for doubtless physiology can sometimes trump both conscious thought and morality; but in most cases and in normal circumstances.

At the same time, social circumstances can shift the normal distribution of individual good and evil in either direction—toward there being more or fewer good or evil people. Extremes of good and evil there will always be, but the number of the good or evil will vary, according to the direction in which the normal distribution has moved. But in whichever direction the curve has tended, it is shifted through effects on the human mind.

For example, societies may encourage or discourage certain conduct through their legal arrangements. When I consider the current state of the British criminal-justice system, I am indirectly encouraged to believe in the fundamental soundness of human nature: for the remarkable thing in Britain is not that there is so much crime but so little, for the criminal-justice system does little to deter it. Strange to relate, however, almost all educated people in Britain believe exactly the opposite—namely, that our criminal-justice system is of great, unjustified, and even cruel severity. They have been convinced by constant propaganda emanating from liberal newspapers, the broadcast media, and sometimes from the judiciary, that our society sends far too many people to jail. According to this way of thinking, thousands languish in prison who have done nothing seriously wrong; for them, prison serves only as a university of crime.

Evidence of this attitude is easy to find. In 2007, the recently retired lord chief justice, Lord Woolf, said that many people were in prison who did not need to be there. He did not seem to realize that this was tantamount to admitting that he headed an organization that was depriving many citizens of their liberty without good reason, which was itself morally, if not legally, criminal conduct. He had spent several years of his term of office trying to convince the government that fewer people should be sent to prison and that those sent should serve shorter terms.

If this is what a chief justice says, it is hardly surprising if the public comes to believe that those who appear before the courts risk summary and thoughtless imprisonment, as if judges were employing a somewhat less ferocious equivalent of the Bloody Code, according to which, in 1815, as many as 215 categories of offense were, in theory, punishable by death. In practice, the Code was a good deal less bloody than remembered, and it was applied unevenly. On average, under its provisions in the mid-eighteenth century, fewer than one execution took place per 100,000 of the population, adding up to about 56 per year. Still, that represents a large number for a population of 8 million—the equivalent of about 2,240 per year in today’s United States—but still smaller, probably, than imagined by those who have heard of it.

Statistics are frequently cited to demonstrate that large numbers of people in Britain are wrongfully imprisoned, and it is clearly wrong to curtail anyone’s liberty without good cause. One popular figure in this context is that Britain has the highest rate of imprisonment of any western European country, which happens to be true. “At a rate of 146 per 100,000 of the population, England and Wales have the highest prisoner population in western Europe,” David Scott wrote in the Guardian in 2017. I have seen and heard this statistic cited many times.

In fact, it is my experience of speaking in Britain to intelligent and educated audiences, or in private conversation with intelligent and educated people, that no one is unaware of this statistic, or something like it, and the reality that it supposedly adumbrates; but it is also my experience that no one is ever able to say what is wrong with it, and why it is fatuous. I have never heard or read any critical comment upon it.

But it is easy to prove that the statistic is fatuous, designed more to stir emotion than to stimulate reflection. A simple thought experiment should suffice. Suppose a country existed in which there were only a single prisoner; but suppose also that no crime had ever been committed in that country. The existence of a single prisoner would be an injustice, notwithstanding the country’s extremely low rate of imprisonment.

It is obvious, then, that the raw rates of imprisonment, uncorrected for age (an important correction because young adolescent and adult males are far more likely to perform acts leading to imprisonment than are other demographic groups), cannot tell us much about the relative severity or leniency of criminal-justice systems. And when we make a proper comparison, we see that the allegedly punitive nature of the British criminal-justice system—relative to other systems—becomes a chimera.

International comparison of crime statistics is fraught with difficulty. What counts as crime varies from country to country, as does the manner of recording and classifying it. But he who lives by statistics dies by statistics, and since the statistic that Britain has the highest level of imprisonment in western Europe comes from an organization called Eurostat, those are the numbers that I shall use.

The comparison with Spain is instructive. In 2015, England and Wales had, as noted by the Guardian, 146 prisoners per 100,000 of the population, but Spain had 132 per 100,000: hardly a startling difference. Indeed, in 2008, England and Wales had 150 prisoners to Spain’s 161 per 100,000 of the population: so Britain’s slight preeminence in this sphere is of recent origin, which you would never guess from the commentary.

However, while the police in England and Wales recorded 2,215 thefts per 100,000 people in 2015, Spain’s recorded a mere 442. The difference is even greater when it comes to physical assault. The police in England and Wales recorded 764 assaults per 100,000, while those in Spain recorded a mere 68, less than one-tenth as many. Nor is it likely that these huge differences result merely from differences in recording methods: and insofar as they do, they would increase rather than reduce the differences, because Spain has, per capita, about 60 percent more police officers than England and Wales. It also seems probable (though I cannot prove it) that they waste less of their time enforcing political correctness or engaging in other pseudo-policing activities.

On the assumption that the Spanish criminal-justice system imprisons people for offenses such as theft and assault, it is obvious that it is far more severe and punitive than the British: and I will leave it to readers to guess which country is the more crime-ridden and subject to the more severe crime.

Another myth almost universally accepted by the British intelligentsia (but not by the victims of crime, these two groups inhabiting very different social universes) is that British magistrates and judges are eager to imprison as many people as possible, passing sentences in the manner of the Red Queen in Alice Through the Looking Glass. According to this mythology, officials summarily send large numbers of minor criminals, convicted just once, to prison. I have heard it said at dinner parties that many prisoners should not be in jail and that only physically dangerous criminals should be incarcerated.

Unfortunately, innocent people are sometimes imprisoned, a few for a long time; and one can sympathize with the rage and despair of the innocent (and their relatives and friends) at the injustice that they have suffered. Occasionally, too, I met prisoners in my career as a prison doctor who seemed to have been dealt with much too severely, whose sentence did not seem properly to reflect the mitigating circumstances of their crime. But any system of justice will have miscarriages of justice; and when people say that such miscarriages invalidate the system’s locus standi to punish at all, I ask them how many miscarriages they would expect in a system that deals with many thousands of cases a year. They never can answer, and I am not sure that I can answer, either.

What is certain is that the notion of intemperate magistrates and judges who thoughtlessly send people to prison for first convictions for trivial offenses is wrong. Those imprisoned for a first conviction are fewer than one in 12 of all prisoners; 70 percent have more than seven convictions, and 50 percent more than 15. There are as many people in prison with 46 or more convictions as there are prisoners convicted for a first time. Moreover, one should always keep in mind that a prisoner’s number of convictions does not equal the number of his offenses. Research by the Home Office (Britain’s Department of the Interior) and by the Hertfordshire police show that habitual offenders commit more than 140 offenses a year. Prisoners, happy in the knowledge that I would reveal it to no one, confessed to me that they had committed at least ten times as many crimes as they had ever been charged with. The police inflate their clear-up rates by various methods, but even so, they claim that only about 5 percent of burglaries end in a charge. And only 57 percent of people convicted of burglary are sent to prison, meaning that, at most, 3 percent of burglaries end in a prison sentence for the perpetrator.

It is not only that the likelihood of a burglar being caught and sent to prison is slight; it is also that even when caught and sent to prison, he will stay in prison for only a short time and will soon be let out—frequently to re-offend. In 2012, for example, the average sentence for burglary was 15.4 months, despite the fact that the convicted burglars in that year had (on average) 12 convictions for burglary: which means that, with the 50 percent remission of sentence, burglars in that year would stay in prison for 7.7 months, or 231 days.

This means that, assuming average competence, a burglar in Britain could then expect to serve slightly less than six days in prison for each burglary that he committed. On the reasonable assumption that most burglars were not of the A. J. Raffles or Arsène Lupin type—upper-class men bored by respectability and excited by the prospect of breaking the law—but rather young men with limited earning capacity, this made burglary economically rational: for surely, it was possible in the great majority of cases for burglars to steal and dispose of goods of greater value than they would have earned by honest labor in seven days—moreover, at only a small fraction of the cost of the effort. The question then becomes not why some young men of their class were burglars, but why any was not a burglar. To this question, more than one answer may be returned: that many lacked courage, that the notion of homo economicus is as mythical as the notion of the severity of the British criminal-justice system, that honesty and goodness are natural to mankind even at the lowest level of the socioeconomic scale, or simply that (as a lawyer in New Zealand once said to me) the young men were not good at arithmetic. I leave the explanation to others: but the situation has not changed much in the intervening years.

One reason for the light sentencing for a crime as serious as burglary is the light sentencing for crimes that are more serious still. One can gauge the frivolous leniency of the system by the case of Theodore Johnson, a 64-year-old man recently sentenced to at least 26 years’ imprisonment for his third homicide. In 1981, Johnson, a recent immigrant from Jamaica, had an argument with his wife. She said that he was insufficiently well dressed to go to church, and in the course of the subsequent altercation he hit her over the head with a vase and pushed her to her death off the balcony of their ninth-floor flat. He was found guilty not of murder but, on grounds of provocation, of the lesser crime of manslaughter, and sentenced to three years’ imprisonment.

In 1993, he strangled his then-girlfriend to death because she was leaving him for another man. This time, he was found guilty of the lesser crime of manslaughter on the grounds that he had a personality disorder and was therefore not fully responsible for his acts. While I am opposed to the idea that a person should be punished according to speculations about his future conduct, an idea that is incompatible with the rule of law, it is surely odd to give a man a lesser punishment because he is more likely to repeat his crime—as must be the case if it is accepted that his second homicide really was the consequence of his personality disorder, an untreatable state.

Johnson was sent to a secure mental hospital, where he remained for two years, and was then released on condition that he inform his doctors if he started a relationship with another woman. In fact, he was having such a relationship even before his release but managed to keep it concealed from his doctors for 20 years. The first that they knew of it was after he threw himself in front of a train, injuring himself severely; the police went to his flat, where they found a woman strangled by a dressing-gown cord and with her skull smashed in by a claw hammer. She had left him for another man because of his possessiveness, but, knowing by then of his two previous homicides, had unwisely agreed to return to his flat to help him with some bureaucratic task. But even after three homicides, the criminal-justice system could not bring itself to say that Johnson would never be released. It is most likely that he will die in prison—but not certain.

The commentary on the case demonstrated how emasculated the British intelligentsia has become after years of sociological, psychological, and criminological blather. The question asked in much of the commentary was how it was possible for Johnson to have concealed his relationship with a woman from the mental-health services for so long, as if they were some kind of private-detective agency. It seemed to have escaped the commentators’ notice that the terms of his release were foolish in the extreme, and beside the point.

If a man is held in detention for only five years for having killed two women (his excuses are now acknowledged to have been concocted), it is hardly surprising that burglars should spend only six days per burglary in prison. What is remarkable is that, among the British intelligentsia, the British criminal-justice system should be almost universally regarded as unduly and harshly punitive, and that this belief should be impervious to reason or evidence. In Britain, as no doubt elsewhere, the uneducated sometimes have a better, though intuitive, grasp of reality than do the educated.

Photo: Relatives of Theodore Johnson’s third victim after he was finally sentenced to a long prison term (YUI MOK/PA WIRE/AP PHOTO)

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