The Exchange

There has been much talk recently in the UK — and in the US to a smaller extent — about reform of the criminal justice system, motivated mainly by the climate of austerity and the need to pare the government deficit. One also hopes that genuine concerns about justice and civil liberties play a role. Sentencing and prisons reform, in particular, have taken to the fore, although police powers and the duties of the public prosecutor have been in the news as well in the wake of the Ian Tomlinson affair.

The chief problem is arguably the sheer quantity of individuals being locked up. According to a speech by Ken Clarke, the new Justice Secretary, the prison population is upwards of 85,000, which means about 1 in every 1,000 UK residents (http://www.justice.gov.uk/sp300610a.htm). Prisons are overcrowding. A second problem, closely related to the first, is the cost of imprisonment. It has been estimated that the annual average cost of imprisonment is £40,000 per prisoner and that the marginal cost (i.e. of each new place in prison) is £119,000 (figures from http://www.guardian.co.uk/commentisfree/2008/jul/28/justice.prisonsandprobation — note that this was from two years ago). In Clarke’s words, ‘it costs more to put someone in prison for a year than it does to send a boy to Eton’.

However, to truly achieve effective, comprehensive and ‘post-partisan’ reform, one must examine the reasoning behind criminal sentencing and society’s mindset regarding this. The main reasons for imprisonment and other forms of sentencing can be said to be punishment (or retribution), rehabilitation and deterrence. Incapacitation — taking dangerous criminals off the streets — is an added reason specifically for imprisonment.
One might be forgiven for thinking that in a modern, liberal society, the urge for vengeance would not impede on the nobler cause of rehabilitation and the practical aim of deterrence. Yet, if this Conservative MP’s words are any indication, large parts of UK society would prefer to satisfy their primal thirst for revenge — forgive the exaggeration — before considering rehabilitation:

Restorative justice is certainly a fad that excited those that work for the criminal justice system, and I am not sure it is necessarily a bad thing. But it should be no substitute for justice. Some people tend to think that rehabilitation should take primacy over punishment. I don’t think most people agree with that. (Douglas Carswell, quoted here: http://www.guardian.co.uk/society/2010/jul/25/criminals-should-say-sorry)

Sure, there is no doubting that justice (a word grossly and inaccurately equated to ‘punishment’ by the MP) is a key goal of the criminal justice system. But when ‘justice’ is grossly and inaccurately equated to ‘punishment’, the entire institution is undermined. Punishment is but one aspect of justice; justice also incorporates fair sentencing, rights for the accused, support for both victims and offenders as well as legality, among other concepts. Justice means that a criminal should be punished for his (or her) crime in a constructive and proportionate manner, but also that his background and an understanding of why he committed the crime should be taken into account in sentencing, and that appropriate measures be taken to rehabilitate him.
These issues should be taken into account when considering sentencing and prisons reform, but for various reasons, the discussion has not really taken hold. For one, there is the familiar problem that politicians feel the need to look tough on crime and hence cannot propose reform in favour of ‘soft’ penalties. Some, such as the MP quoted above perhaps, cling on to the over-encompassing mantra that ‘prison works’ and simply do not see how rehabilitation can take priority over, or hold equal importance with, retribution.

Moreover, many offenders, especially those with short prison terms, are not dangerous criminals who put their neighbours at the risk of harm. These are small-time drug users and petty thieves who are the prime candidates for intervention through rehabilitative means such as counselling, probation and support. Putting them in prison could instead harden them and expose them to the influence of tougher and unrepentant criminals. Some offenders currently in prison are mentally ill — it goes without saying that these ‘criminals’ do not belong in prison but in humane and secure institutions for treatment.
To its credit, the new coalition government in Westminster is planning to replace short prison sentences with community work, probation and other rehabilitation measures. Regardless of the fact that the Tory half of the cabinet is mainly doing this to cut the budget, their plans — together with the aforementioned Ian Tomlinson affair and Raoul Moat — have generated a fresh debate about criminal justice reform that is most welcome and will hopefully lead to the reform taking place.

On the other side of the Atlantic, the situation seems to be even more dire. The Economist ran a Briefing piece (http://www.economist.com/node/16636027) about how the US is locking up ‘too many people’: an astonishing 1 in every 100 adults. Two of the problems behind this have ‘perverse incentive’ written all over them.

First, because of sentencing laws which set mandatory minimum sentences, prosecutors hold a ridiculous amount of influence over defendants. Whereas a judge has no choice but to mete out a minimum sentence for a particular charge even if he considers that circumstances in the case mitigate the crime, a prosecutor has can choose a lighter charge — hence a shorter sentence — in return for the defendant’s ‘cooperation’, for example by getting an associate to deal him drugs:

Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.

A prosecutor may also be able to convince an innocent defendant to plead guilty:

Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.

Second, politicians have enacted increasingly severe criminal laws because of the aforementioned need to appear tough on crime. Conversely, proposed reform of the system can be portrayed by political opponents as being soft. Laws requiring mandatory sentencing are generally to be abhorred since they remove judges’ discretion over sentencing when judges are the people most qualified to do this. Having (presumably) had the experience of sitting through numerous trials and hearings, examining evidence and listening to cross-examinations on a day-to-day basis, they are best able to decide on an adequate and fair sentence while taking into account any mitigating circumstances. Mandatory sentencing law should be changed to guidelines.

Also, in 33 states, judges are elected, which essentially puts them in the same position as politicians. In order to win votes, they have to tailor themselves to suit public opinion. As one may expect, this means promises of harsh sentences which are eventually carried out.

Brian Cheung