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Criminal logic

8 September 2003

When the degree of suffering inflicted on the guilty is the measure of society's moral self-affirmation, something, somewhere, has gone badly wrong.

In New York a paranoid schizophrenic woman of 39 is sentenced to 50 years in prison for drowning her four-year-old son. On the same day, in Florida, an anti-abortion extremist who murdered a doctor who carried out abortions was executed by lethal injection. Meanwhile, a paedophile who took pictures of himself raping a 13-month-old baby receives a five-year prison sentence that is widely condemned as too lenient.

Just another day in the world of criminal justice, but a day that shows more starkly than most the incoherence that pervades attitudes to sentencing for crimes of this sort. It is not just the difference between attitudes in Britain and America. Britain may not execute people and it may not lock them up for 50 years, but it does lock people up plenty and the "throw away the key" attitude is catching on in political circles.

The judge in the case of mother Christine Wilhelm said: "I have no room for mercy in this case," despite defence evidence of her psychotic delusions. Paul Hill, on the other hand, was said to be "looking forward to glory" as he awaited his execution by lethal injection. The judge in the case of James Taylor said that his sentence would have been longer had he not been assessed to have a low risk of re-offending.

According to traditional jurisprudence, the objects of a sentence are to punish, deter and prevent. Punish by way of social retribution, deter by putting off other would-be offenders and prevent re-offending by putting the criminal away. These cases reveal differing approaches to the public good by addressing these objects in different ways.

In the case of Wilhelm, deterrence is a marginal issue. It is doubtful whether another paranoid schizophrenic, in a similar moment of psychotic frenzy, would think to stay their hand at the recollection of her whole-life sentence. Of re-offending, however, there may, indeed, be a legitimate fear, with Wilhelm's other child, whom she also tried to kill, in particular danger. But whether prison is the answer to this, and whether a mandatory whole-life sentence is required to ensure the safety of others, must be open questions.

The remark of the judge makes clear that the sentence is really about punishment. It represents, in a state that does not have the death penalty, the maximum retribution that can be exacted from this poor woman for whom the judge "has no mercy".

Hill's death in the cause of the increasingly militant anti-abortion movement in the U.S. only makes him a martyr. He being dead, the retribution bears upon his supporters and may ultimately backfire. His sentence may deter and encourage others in equal measure but the principle of a retributive death penalty sits uncomfortably in a case where the original murder was conceived of by Hill as a vengeful, deterrent and preventative act against those who kill foetuses. A prison sentence would have been a more effective moral critique, holding out the possibility of reform in the offender while keeping him out of circulation for as long as he was likely to re-offend.

In these U.S. cases, the death and whole-life sentences can only be justified as retribution, since the objects of preventing re-offending and deterring others could clearly have been achieved with lesser penalties. That Taylor's low risk of re-offending should have encouraged his judge to a shorter sentence successfully inverts that approach by positing a minimum effective sentence as a starting point. In doing so he was doubtless mindful of the over-crowded state of Britain's prisons.

He has been roundly criticised for his pains, even though a five-year sentence remains a considerable deterrent to anybody capable of being deterred. Indeed, whether, beyond a certain level of severity, potential offenders are more deterred by higher sentences is extremely uncertain. The criticisms, therefore, relate, not to utility, but to what a sentence says about the way that society views a particular crime. That goes back to retribution. Retribution sends a message from society to say how bad it feels.

This message is confusing. Who is it to? Addressed to the criminal it has no point, unless it is intended to encourage him not to re-offend. Addressed to the wider world it could be intended to deter others from the same path. Otherwise it is addressed by society to itself, a possibly self-indulgent re-affirmation of social values unrelated to the circumstances of the prisoner.

A sentence of death cannot sensibly be addressed to the person to be executed. It is a message of which they can make no conceivable use. When sent to the wider world this message seeks to affirm a high moral standard. It says; "We so abhor this crime that only a death sentence can indicate the depth or our abhorrence." That is why it goes so far beyond what is needed for the utilitarian purpose of deterring others.

The trouble with this analysis is that it equates the suffering of the convict with society's moral fervour. Does that suffering really enhance, or does it (more logically) diminish society's view of itself. Ideally, should there not be two sentences - the one that the judge pronounces to make society feel good, and the one that the prisoner actually serves? Which, of course, is exactly the system which operates in Britain, where a mandatory life sentence for murder sometimes struggles to get into double figures and a term sentence is paroled at two thirds.

From a problem-solving point of view this is madness. It begs the question, "What's it all for?" Uncertainty about the purpose of sentences, and how severe they will actually be, makes it a bit like estimating house values: you look around for similar examples but in the end it all comes down to what the market will bear. And, like house prices, there is a tendency to structural inflation. Magistrates don't like fines because they seem ineffective, and community punishments seem weak. So, when they want to express their disapproval, prison is the only way. With more people doing time for petty crimes the demand for longer sentences for more serious offences is inexorable. And so it goes on.

Wise counsellors (some of them at the expense of the state) spend a lot of time explaining to tired and irritable parents that to shout angrily at their children will not encourage good behaviour. Parents do know this, but it doesn't absolutely stop them shouting angrily at their children because the shouting gives them some relief from the anger. Is this the model for the wider society, that sentences are there to express anger rather than to inflict suffering? If so, it is worth asking why the wisdom relayed to parents in relation to their children is not extrapolated to a wider field.

The politician's answer to this is that the guilty must be punished. The public demand their retribution. Do they really? Do they still hit their children when they misbehave, or lock them up on bread and water like in the olden days? Brave and sensible politicians who truly wish to tackle the problem of crime will need to distinguish between what people say (or are said to say) and what they actually do when faced with similar decisions in relation to their own.