A fairer approach to crime and punishment

Earlier this month, the parents of a murder victim spoke of their shock when they overheard the judge at a parole hearing saying that their victim impact statement would have no effect.

It is obviously wrong if they were misled into believing otherwise, but under a fair judicial system, sentencing and parole decisions need to be based on more objective criteria. Victims or their families should not be able to influence any punishment handed down in this way. Sentences should not be affected by how articulate a victim’s family happens to be, or whether they have any family to speak for them at all. That’s not necessarily to say that they shouldn’t be allowed to make a statement in court. It may be helpful as a cathartic act, for example. And hearing the impact on the victims may be useful for the culprit to hear so that they can reflect on the consequences of their actions. But it must be made clear in advance that the statement will not affect any sentence.

But then, what should sentencing be based on? Possible sentencing reasons include the following:

Deterrence – This could be both for the individual who committed the crime and for others who may do so in the future.

Physical protection – While in prison, someone does not have the same freedom to commit crimes so people are protected from them.

Compensation – To pay something back to the victims, whether this is an individual or a whole community who have suffered as a result of someone’s actions. A custodial sentence would not come under this category as nothing positive is being paid back to anyone.

Rehabilitation – This is to work with the culprit to educate them and ensure that they are less likely to go back to committing the same sorts of acts.

You’ll notice that I haven’t mentioned revenge, retribution or that an individual simply deserves to be punished “in a vacuum”, independently of any consequences of the punishment. That is because I don’t think it’s the role of the state to be meting out punishments for these reasons. Leaving a discussion of moral philosophy and the existence or otherwise of free will aside, it’s not the job of the state to issue such punishments. In simple terms, the state is there to ensure that society runs well, and an isolated judgement on an individual irrespective of consequence is clearly irrelevant this, and is therefore outside of its remit. The point here is that I am not even getting into a discussion of whether someone deserves to be punished; I am arguing that it is irrelevant because it is not the state’s job to decide this.

Of course, the idea that people are somehow getting revenge or justice may be seen as a positive outcome for them, and for society overall. However, I would argue that this is at most a short-term and short-sighted benefit to a small number of people. A far more positive benefit in the long term would be to encourage a more tolerant and forgiving society, and hopefully for people not to have such feelings of vengeance towards perpetrators, however hard this may be to achieve. It is not the act of a positive and healthy society to inflict suffering on someone in order to make someone else feel better about it. Sentencing needs to be made for positive rather than negative reasons.

Perhaps unsurprisingly, I think that, for most crimes, prison is an outdated punishment, and something that should be used as a last resort. Specifically it should be largely reserved for people who pose a violent and physical risk to society. Prison should be very rare indeed for non-violent crimes.

Prisons are expensive, and wasteful in human terms as they are a purely negative punishment, in contrast to something like community service, where offenders put something back into society. There are over 85,000 people in the UK’s overcrowded prisons. There is a lot wrong with prison as a punishment, and here are three links to pages to look at in your own time (one, two, three).

But where people absolutely do have to be taken out of society, prisons should not be seen simply as a punishment. They should be there to rehabilitate and educate offenders so that they are less likely to commit further crimes. Conditions should be geared towards improving inmates’ behaviour and their chances in the outside world in the future. This is where proper evidence-based research is needed, rather than just political hand-waving.

Despite what I have said and the pages I linked to above, there are plenty of people who would argue that prison does work and that its use should not be reduced. And what if new studies and a thorough look at the evidence showed that prison sentences do work better than the alternatives for reducing crime, going against my ideology? We need to look at various factors here. This includes reducing crime, but it also involves treating people as human beings. You could probably reduce crime by cutting petty criminals’ hands off, but I don’t think most people would suggest that you do it. Likewise, I see prison as a negative thing in itself, so all other things being equal, it is a worse outcome than a non-custodial sentence. Reduced crime rate is just one factor of many, although I would obviously stress that it is still a very important factor. But given what I have said, I would argue that if there is any doubt about whether a crime should receive a prison sentence, the burden of proof lies with those arguing that a prison sentence would result in a better overall outcome. But it should go without saying that evidence-based sentencing is very important, and there should be ongoing research into what works and what doesn’t.

Action and intention should be looked at above consequences. For example, someone causing a fatal accident through dangerous driving should not be treated more harshly than someone driving similarly dangerously who was more fortunate and caused a non-fatal accident. To do otherwise is illogical, even if there are repeated calls for harsher punishments for those guilty of causing death by dangerous or drunk driving, such as here and here. These are tragic cases and obviously I sympathise with the victims’ families, but it is as important as ever to be fair and objective in such emotive cases. And purely from the point of view of deterrence, dangerous driving where there are no serious consequences is more likely to need something extra to give people to think about. Any further legal consequences above and beyond causing a fatal accident are unlikely to have a deterrent effect.

This is why there should be no separate offence of causing death by dangerous driving above and beyond dangerous driving. Or at least, if it is a separate offence, it should be purely for categorisation rather than for sentencing purposes. And that’s also why victim impact statements aren’t relevant to sentencing. We should not be punishing someone on the unforeseen consequences of their actions, but more on the actions themselves and the intent. Above all, we should be sentencing based on what is likely to lead to more positive societal outcomes in the future, as I have argued above.

Once someone has served any sentence relating to a crime, and they are free in society, then I think they should be allowed a clean break in most cases. This means not having to declare previous convictions on job application forms. There’s no point in rehabilitating someone and setting them free into society only to handicap them anyway and prevent them from using this rehabilitation and freedom. There would be special cases for certain crimes and certain jobs, but these would be the exception rather than the rule.

Finally, I would argue that there is no logical reason why prisoners shouldn’t be allowed to vote in elections. Unless you bar all convicted criminals from voting, then specifying just those in prison is arbitrary. And if you bar all convicted criminals from voting, then the country quite simply becomes less democratic. Convicted criminals are still part of our society, and barring them from the democratic process is unlikely to help with their rehabilitation or indeed provide any benefit to society.

There are many sentencing options open to judges, one of which happens to be prison, but why should that one also be linked to the democratic process? For example, sometimes people avoid prison for health reasons, not because the crime isn’t deemed serious enough, but then why should they keep their voting rights over and above someone else that went to prison for the same crime? It is a logical non sequitur to deny someone the right to vote purely on the basis that the judge thinks that the best approach for society and the individual is to keep them away from the rest of society for a certain amount of time. It makes no more sense than saying that those who receive more than 200 hours of community service shouldn’t be able to write a letter to their MP.

General elections occur about once every five years. Someone might be in prison for four-and-a-half years, and not miss an election, whereas someone else might be in prison for just one week and miss an election. Surely, the fact that someone is free in society for the bulk of the term of Parliament is more relevant than where they were on the date of the general election. But that’s a side point. The main point is that prisoners are still citizens of our country and as such have the right to be a part of the democratic process. To argue otherwise is to argue for a less democratic country.

As a society we need to keep a positive outlook. Crime is a negative thing, but the way to respond is not with further negative actions. We need to try to ensure a more positive future for everyone involved.

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