By Brian Robinson.
What follows is an essay on crime and punishment which I produced whilst studying at The Open University a few years back. I’ve reproduced it here because I thought it would make a good vehicle to comment on the criminal justice system and perhaps students might find it useful.
The topic of the essay centres on three cases of lenient sentencing which caused public outrage. Each case is considered in terms of the philosophies which inform the sentencing.
(a) Two boys in a children’s home have raped a girl in the same home. The judge said he was not giving them a custodial sentence because they did not understand the seriousness of the crime, and had regarded it as a prank
(b) Another teenage boy had raped a schoolfellow. The judge said that prison would only make him worse, and imposed a small fine.
(c) A graffiti artist had caused extensive damage on the London Underground. The judge imposed a small fine, giving as his reasons that a prison sentence would only make the boy worse and that he came from a good family.
The essay question has two parts: a) Are any of the reasons offered adequate justifications for the leniency shown? And b) What does your answer show about your attitude to punishment? Are there any problems about them?
The essay is in two parts. The first is a commentary on the three judgements and takes the voice of an appeal judge. The second part is an analysis of that commentary.
To be faithful to the title, I have reproduced the essay exactly as written although I was tempted to make some changes. I have made a few punctuation corrections.
Case Commentaries & Appeal Decision
This case centres on questions relating to responsibility, blame and desert. The key factor is that the seriousness of the crime was misunderstood by the boys who perceived it as a prank. This could have been interpreted by the judge as an indicator of diminished responsibility. And indeed, as children already in care, we might assume it was considered that their crime arose more from the influences of their circumstances, than any criminal intent, and they were subsequently judged to be blameless and un-deserving of punishment. This would indicate a predominately retributivist attitude. However, it could equally be considered that the antecedent events worked as determining factors in the utilitarian sense, causing rather than influencing the action of rape.
The appeal judge did accept the justification for the leniency on the grounds of diminished responsibility, but not the lack of an alternative, more positive response. Two moral imperatives had been disregarded. And regardless of any considerations of blame or desert, the fact remained that a serious crime of personal violation had taken place. He held that the priority in such cases was to protect the public and contain or stabilise the situation. And secondly, that society had a responsibility towards the offenders themselves, both in terms of encouraging maturity, and of correcting their distorted perception. He ruled that the boys be safely held where a suitable process of rehabilitation could be set in motion, with the actual period of confinement being dictated by the process of rehabilitation itself.
There is nothing to suggest that this was anything other than an act of free will, with the boy concerned wholly responsible for his actions. Indeed, the fact that he came from a good family background suggests an absence of contributing or mitigating factors altogether. Prison, however, is presented here as a form of moral injustice, with a small fine being imposed as the lesser of two evils. This represents a largely utilitarian view, where the punishment itself has to be justified, rather than the leniency as is being considered here. It was presumably judged that the harm likely to result from a prison sentence, outweighed the good likely to be created in terms of a deterrent. Perhaps it was taken for granted that the boy’s family would take an active role in reforming his character?
The appeal judge felt that the justification in respect of a non-custodial sentence was valid. However, he could not accept that simply because the response mechanism to serious crime had been identified as an exacerbating agent, that a small fine would in any way act as a substitute. Again, this was a serious crime of personal violation, with the same moral imperatives applying. An identical sentence to case (a) was imposed, in this instance with a view to reform rather than rehabilitate, and with the reform process itself being allowed to dictate the duration of confinement.
This is a less serious case amounting to social violation or criminal damage. The sentence in the judge’s eyes became purely a question of economics, with the value to society of a punitive sentence being weighed against the actual cost and found to be prohibitive. This type of exercise essentially revolves around a utilitarian principle where the profit or loss of an action is weighed, not only in terms of the happiness or harm it produces, but in terms of the financial cost to society. Quite simply, if it was found that the happiness could be increased by a punitive sentence, then it would have been imposed irrespective of the personal harm it might cause to the individual.
On appeal, it was found that the leniency shown in this case was unjustified, with the relationship between cost-consciousness and ethical integrity brought into question. The judge felt that this type of case lent itself more readily to a retributive approach, where a punishment was indeed formulated to match the crime. This could provide an effective solution, with an added advantage in terms of cost. A sentence of community service was therefore imposed, of a corresponding value and nature to that of the criminal damage caused.
The philosophies informing the original sentences are retributivism and utilitarianism. And although they are capable of producing identical responses to crime, they are fundamentally irreconcilable. Here they create a situation where the sentences become disconnected and un-related to the crimes. This was the result of an essentially retrospective process, preoccupied by circumstantial or antecedent considerations relating to blame or cause.
The appeal sentences represent a shift towards a more forward looking sentencing procedure, governed by the seriousness of the crimes themselves, and by the need to contain, protect and apply a remedy. They do not recognise the concepts of punishment or deterrent as being primary factors, but rather as complicating agents, unreliable in terms of their consequences, with deterrents liable to function or fail, and punishment capable of producing both positive and negative results. If they arise at all, it should be as incidentals rather than governing concerns.
Although they question our attitudes and undermine our response mechanisms, the appeal sentences do contain elements which recognise the positive contributions these philosophies have to offer: the fundamental desire not to repeat the harm in the utilitarian sense; and the undoubted wish to produce equitable solutions in the retributive. And equally, the open-ended nature of the appeal sentences, would certainly be viewed by many as containing strong elements related to punishment and deterrent, with the terminally criminal being indefinitely contained, and the minor offender being treated more as an out-patient. The distinction remains, however, that the appeal sentences in themselves do not set out to create casualties: retributivist and utilitarian sentences undoubtedly do.
Retributivism hold that the actions of individuals arise out of a process of choice based on the concept of free will. It advocates that the response to crime should therefore be formulated to match in terms of punishment, even to the extent of repeating the harm. Utilitarianism considers all actions to be caused or determined. It follows therefore, that as we cannot be held responsible for them, punishment as a concept becomes harmful and unjustified. Utilitarians, however, also embrace the principle of creating the greatest happiness. And punishment may in that sense achieve justification, inasmuch as its deterrent value may work in some instances to maximise the overall good or happiness in society. This approach is often associated with leniency where it is deemed that a deterrent would be useless. Or conversely, if it is felt that a deterrent is merited, it can produce extremely harsh responses, disproportionate to the crime itself. Utilitarians then, do not necessarily accept the need to apply sanctions: retributivists, only seek to apply sanctions where responsibility and blame can be proven and desert established. Both, in fact, are capable of producing inconsistent sentencing, seemingly incoherent and ill-informed in philosophical terms.
Retributivism applies the progression: responsibility > blame > desert > punishment, in order to achieve a matching response. However, given all the possible circumstantial variations, and accepting the variousness of mankind, with no two individuals acting or reacting in the same manner, this becomes an unwieldy process where an equitable solution can rarely be achieved. Furthermore, its interpretation of desert often fails to make the important distinction between crimes which can or cannot be repaired. The damaged caused by the graffiti artist for example is entirely possible to repair. For the offender therefore to be involved in that repair process, in physical terms or by contributing towards the cost of the clean-up operation itself, seems entire logical and appropriate. Yet, a retributivist would be equally prepared to match this crime in terms of a prison sentence, the match in his eyes not necessarily having to be like for like, but merely proportion to proportion. In the case of the rape, the fact that it is impossible to repair the damage seems to be an important distinction to make. To match therefore, or repeat the harm in terms of a harmful prison sentence, produces a counter-productive measure, whereas some other remedy, perhaps in terms of a reform or rehabilitation process, would have been more appropriate. This view of crime, where matching the punishment can equally be appropriate or inappropriate, provides for a more consistent approach with a greater degree of ethical integrity, coupled with the likelihood of producing more consistently positive results.
The utilitarian preoccupation with adding to some imaginary fund of happiness whilst depleting some equally imaginary fund of harm, appears to be a more considered approach. In fact, the calculation as to the size of that fund is never actually made, and would in any event be impossible to gauge. Paradoxically, the utilitarian aim of consistency in sentencing, is often defeated by its crusade to create happiness, throwing up both disproportionately lenient and harsh sentences in deference to this imaginary fund. In practical terms, whether a utilitarian opts for a deterrent or lenient sentence, for action or for inaction, he produces consequences difficult to gauge in terms of happiness or harm. Utilitarians themselves would argue that it is in fact these consequences that constitutes morally good or bad behaviour, yet, they appear to take little account of the incalculable bitterness, anger and resentment caused by disproportionately harsh sentencing. Neither do they take account of the reverberations of inaction, or the possible escalation and proliferation of crime as a result.