To understand all is to forgive all: such is the underlying philosophy of much penological liberalism, or leniency toward criminals. There but for the grace of God, moreover, go we.
But what is it to understand all? While many complain of not being understood, would anyone be pleased if someone said to him: “I understand you completely”? Would he not, on the contrary, feel that the claim was arrogant or, if true, deeply disturbing? For which of us does not want to preserve a secret garden that only we may enter? Who wants to be wholly transparent?
Fortunately, claims to understand all are bogus: the heart of our mystery remains, and will likely always remain. But premature claims to understanding may still do harm, and nowhere has this been truer than in penology. A recent case in England has exposed the crosscurrents of popular opinion about the proper punishment of criminals, revealing just how shallow is the liberal current.
Lavinia Woodward, a young medical student at Christ Church, Oxford, was found guilty of wounding her boyfriend, a Ph.D. student at Cambridge, during a quarrel. Intoxicated, she stabbed him with a bread knife. When, terrified, he called emergency services, he exclaimed that she was high on cocaine—which, as it later proved, she often was.
Woodward is the daughter of rich parents and was a brilliant student—indeed, first in her class. She had already coauthored papers in prestigious scientific journals. Her ambition was to be a cardiovascular surgeon, and she certainly had the intellectual capacity to achieve it: though, of course, far more than intellectual brilliance is needed to be a good surgeon. Among other things, one needs manual dexterity, good judgment, dedication, and (preferably) compassion. How far Woodward had, or would develop, such qualities remained to be seen, but the auguries were not good.
While at Oxford, Woodward acquired a dark reputation. She began to drink heavily and took a lot of cocaine. She reportedly associated with drug dealers, of a very different social type from students at Christ Church. Her conduct was erratic and frequently menacing. Her explosive temper frightened people. A previous boyfriend had reported her to the police for assault; the police did not charge her, but noted her behavior—surely unusual for female medical students at Christ Church—for future reference.
Woodward pleaded guilty to the attack on her boyfriend (the facts were not in dispute). But the judge first deferred sentencing, noting that, while her crime would normally draw an immediate prison sentence, he considered it wrong to blight so promising a career. Four months later, he suspended the prison sentence. His reasoning was instructive—or perhaps illuminating. His remarks caused a storm of controversy. In addition to his initial indication—that Woodward was a gifted person, whom therefore it would be too severe a punishment to imprison—the judge gave the following reasons for his decision, prefacing his comments by saying that “many, many mitigating circumstances” marked her case.
First, she had no previous conviction. Second, he found that she was genuinely remorseful. Third, while she was clearly highly intelligent, the judge told her, “you had about you an immaturity that was not commensurate with someone of your age.” Further, “reports from experts make clear that you suffer from an emotionally unstable personality disorder, a severe eating disorder and alcohol and drug dependence.” Finally, and, in the judge’s eyes, most significantly, “you have demonstrated over the last nine months that you are determined to rid yourself of your addiction and have undergone treatment and counseling. You have demonstrated to me a strong and unwavering determination to do so despite enormous pressure under which you were put.”
This reasoning does the judge no credit, to put it mildly. Let us take the arguments one by one.
Woodward’s high intelligence and academic ability might just as well have been taken as an aggravating circumstance as a reason for lenience. Would a judge say, “I am sending you to prison because you have no academic ability”? Should there be one law for the clever and another for the stupid? Are the brilliant to be excused their obligation to obey the law?
Against this, one might place society’s interest in not jeopardizing its brilliant members’ careers. But even if this were a proper concern of judges, it is doubtful whether a person with a conviction for such a crime would be permitted to pursue a career as a cardiac surgeon. Even if she could, it is unlikely that she would prove indispensable to the enterprise of cardiac surgery as a whole, and, further, even if convicted, she would not have been prevented from pursuing other careers, such as physiological research. People as clever as Woodward are adaptable (which is why clever people sent to prison tend to do well there). While low intelligence of such a degree that it impedes understanding of what the law requires is indeed a mitigating circumstance, high intelligence cannot be a justification for leniency.
The first of the mitigation circumstances that the judge subsequently cited—that Woodward had no previous convictions—was, strictly speaking, true. But it was clear from his remarks that he was biased in her favor. When telling her earlier that he would spare her from serving time in prison, for example, he said, “It seems to me that this was a one-off, a complete one-off.” But this—as surely he must have known, either then or subsequently—was false. She was fortunate to have escaped previous prosecution, and her whole pattern of behavior, while not admissible as evidence (as it would have been under the inquisitorial system), should have made him wary of emphasizing her previous legal innocence. He was obliged in sentencing her to take her lack of previous convictions into account, but he might justly have avoided public emphasis on it.
The second of the alleged mitigating circumstances—that Woodward was genuinely remorseful—was unknowable and, in any case, irrelevant. How could the judge know that her remorse was genuine? Where expressions of remorse may be expected to result in some benefit to those making them, their sincerity is inherently doubtful. They may be genuine, but equally they may not be, for it is not hard to express remorse, especially for someone as gifted as Lavinia Woodward. Had the judge never encountered good acting? Only that remorse that is without advantage to him who feels it can be assumed to be genuine.
The apparent reason that the judge believed that Woodward was truly remorseful was also odd. One of her bail conditions was that she avoid contacting the man whom she had wounded. She broke this condition by sending him a message to apologize for what she had done—or, as the judge put it, “for what happened.” (It happened, all right, but it didn’t just happen.) The judge apparently interpreted Woodward’s action as a sign of her deep remorse. But was it? No doubt this was a risky strategy—breaking bail conditions might have led to her summary imprisonment. But she was intelligent enough to know that, in present circumstances in England, it rarely does—and that the judge, having already expressed himself firmly against imprisoning her for a major crime, was unlikely to punish her for a minor infraction. She was perfectly capable of working out that the benefit of an expression of remorse would outweigh the risk posed by infringing her bail conditions. I do not say that this was so, but only that it could have been so.
While it is possible that she felt such remorse that she was willing to break the law in order to express it, it is also possible that she felt such contempt for the law that she felt no obligation to obey it. In either case, it is remarkable that a judge should cite as a reason for leniency an act that entailed breaking the law. In effect, he was saying that you can violate it if your motives are sufficiently good; that a bail condition holds only until something else supervenes; and that the bailed person is to be the judge of when that something justifies breaking the condition.
Remorse, genuine or not, is not a proper consideration in sentencing. Criminal justice is not psychotherapy, and prisons are not hospitals for the soul, though it is a good thing if they change people for the better. People are to be punished not for what they might do in the future, which is a matter of speculation, but for what they have done in the past, beyond reasonable doubt. To take remorse into account as a proxy for future behavior is thus inherently against the rule of law, and it risks generating a culture in which people think that crime is permitted, as long as sufficient remorse is felt (or expressed) afterward.
A moment’s self-reflection should demonstrate that remorse is not an infallible guide to future conduct. I ate too much at dinner last night and felt genuinely remorseful afterward; but I shouldn’t like to guarantee that I won’t eat too much for dinner tonight. It is a friend’s birthday, after all; but even if it were not, an excuse can always be found. Indeed, a mind is rarely so flexible as when finding excuses.
The third of the judge’s mitigating circumstances was that the accused was immature for her age. This is preposterous. She was 24, and the age of criminal responsibility in English law is ten. Even if this is much too low, surely 24 would be much too high. Moreover, maturity, in the judge’s sense, is not just a raw fact of nature, like bone age: it is affected by the decisions that one makes.
The fourth mitigation—that she suffered from an emotionally unstable personality disorder, eating disorder, and addiction to drugs and alcohol—is likewise flawed. The diagnosis of personality disorder is a re-description of how some people tend to behave rather than an explanation of why they behave as they do. When, therefore, the diagnosis is introduced as mitigation or excuse in a criminal trial, the following tautological argument is employed: we know that the accused has a personality disorder because this is the kind of thing he does, and this is the kind of thing that he does because he has a personality disorder. This type of evidence is routinely introduced into our courts, as if it had serious scientific value; and so it is that a propensity to behave badly becomes mitigation.
What, then, of the one-off, as the judge put it? It, too, is mitigation, even where it is not in direct conflict with the evidence from personality disorder, which means that everything is mitigation. Further, adding up the prevalence rates for personality disorders given in the Diagnostic and Statistical Manual of the American Psychiatric Association, we discover that up to 35 percent of the population suffers (or makes others suffer) from one. Thus, psychiatry offers tens of millions of people a get-out-of-jail-free card.
It is hard to see how an eating disorder can be causatively related to stabbing a boyfriend: the judge might just as well have said that Woodward was suffering from an ingrown toenail. As to the cocaine addiction, the very language that the judge employed suggests that he knew perfectly well that such addiction is more something that a person does than something that happens to him. “You have demonstrated to me,” he said to Woodward, “a strong and unswerving determination to rid yourself of your addiction.” No one would say, “You have demonstrated to me a strong and unswerving determination to rid yourself of your ulcerative colitis, of your hypothyroidism, etc.” In other words, her addiction had always been under her control; she merely chose not to control it, principally because she lacked sufficient motive. And when the judge said that she had exhibited her strong and unswerving determination, despite the enormous pressure on her, I recalled a friend of mine who threatened a lawyer with legal action unless he paid him the money he had owed for five years, despite repeated requests. “We are sorry you felt it necessary to consider legal action,” replied the lawyer. “Nevertheless [emphasis added] I enclose a cheque.”
In the event, the judge sentenced her to ten months’ imprisonment, suspended for 18 months. The principle of his sentence does not seem to have been bad, though I think it would have been better (and actually kinder to the accused) to have sentenced her to a much longer term—five years, say—suspended for a much longer time, perhaps another five years. This would have given her an even stronger incentive to behave. A longer suspended sentence would give her time to mature, if she really needed it.
The judge’s maladroit remarks drew considerable criticism in the press and elsewhere, but for reasons mainly different from my criticism. He was accused of having shown a clear class bias, and his initial comments indeed give credence to that interpretation. Many in the media contended that, were Woodward an ugly denizen of a housing project, she would have found herself in prison. Because she was pretty, clever, and rich, she escaped that experience.
This would be correct if every violent criminal other than Woodward were sent summarily to prison, but in Britain this is not the case. Only 35 percent of those convicted of violent crimes go to prison; 36 percent receive community sentences; 20 percent get off with a warning. (Spain has a rate of imprisonment for violent crime nearly five times greater than Britain’s and, perhaps not coincidentally, a much lower rate of violent crime—approximately one-fifth.)
Stories of leniency are legion. Mark Hobson stabbed a former colleague five times while on the main street of their small town, in full view of passersby, and despite the life-threatening injuries to his victim, was sentenced to 100 hours of community service. Daniel Phillips attacked a man outside a nightclub, rendering him unconscious with a fractured skull. Phillips received a similar sentence to Woodward’s, his main mitigating circumstance being the recent death of his mother. His grief after his sentencing manifested itself in a wild celebration with friends. Joshua McCarthy got drunk on an airplane, attacked a staff member, spat at the passenger in front of him, bit another, and threatened to kill those who tried to restrain him. His sentence—nine months—was likewise suspended. In other words, the way the judge dealt with Lavinia Woodward was not unusual, though his rationale might have been slightly different from that employed in other cases.
Most of the commentators seemed unaware of this, assuming instead that the leniency shown her was exceptional. For example, John Azah, chief executive of the Kingston Race and Inequality Council, which aims (inter alia) “to work towards the elimination of racial discrimination and related inequalities, to promote equality of opportunity between peoples of different racial groups, to address human rights, and to work in partnership for a just and fair society,” said that if Woodward “wasn’t Oxford-educated, if she came from a deprived area, I don’t think she would have got the same sentence and walked free.” If only he knew.
With the notable exception of the Guardian’s Simon Jenkins, no one appeared to think that leniency was justified in Woodward’s case. And it was the leniency, not the erroneously assumed harshness toward others, that caused people’s outrage. In all the envy and hatred expressed, liberal penology melted away like snow in spring. Woodward’s parents owned a beautiful villa in Tuscany, where she spent much of her time; she owned Chanel bags at $1,300 a throw; even while on bail, she went shopping for designer clothes. A student from Magdalen College tweeted: “I’m not exactly a prison advocate but . . . a sentence should be a sentence, regardless of how smart/well-off/well-educated you are.”
It is difficult not to see in this, despite its genuflection in the direction of liberal penology (obligatory, no doubt, for the purposes of keeping caste), a desire that Lavinia Woodward should have been sent to prison. Apparently, many students—at least according to reports in the Daily Mail—feared her, and perhaps would have felt better protected from her had she been imprisoned.
Why should others, lower on the social scale, not feel likewise protected when those who are violent toward them are punished by imprisonment? Yet it is the relatively poor perpetrator, not the rich one, who is the main beneficiary, or at least recipient, of the British criminal-justice system’s leniency: precisely the opposite of what most commentary on the case of Lavinia Woodward would have us believe.
Woodward arriving at court, where she was to be sentenced for stabbing her boyfriend (PA IMAGES / ALAMY STOCK PHOTO)
