Not Saussure

January 7, 2007

Death penalty again

Filed under: Iraq, Law — notsaussure @ 11:36 pm

Dominic Lawson on the death penalty, in the Sindy:

…what about the victim’s families?

Should the state have no particular concern for them? Legally, all crime in this country is an offence not against people, but against the Queen’s Justice. In practice, however, every crime is committed against a specific individual, or group of people. When those people seek justice, they mean something very specific. In the case of murder it may well seem unjust to them that the criminal will inevitably end up better off than the victim. One day he will be released from prison, and smell the air that, for example, their son or daughter has been forever denied.

Quite possibly so. However, it might well also frequently seem unjust to some bereaved families that the person who, through his dangerous driving, was responsible for their son or daughter’s death should not only continue to ‘smell the air that… their son or daughter has been forever denied’ but only be sentenced to three or four years in the first place (which is about the standard tariff unless there are serious aggravating features). For some people, at least at the time, no sentence would seem adequate to provide what might seem justice; indeed, it’s difficult to see how any sentence can do in the sense of going any way to redressing the loss.

What would also certainly seem unjust is a situation in which the penalty depended, even in part, on how forgiving or how vengeful were the grieving relatives. One of the main points about the law is that the penalties for breaking it should be known and consistent; pace people who think that sentencing depends on what sort of mood the judge is in and how convincing a sob-story he’s given, there are pretty well-defined aggravating and mitigating features laid down by the Sentencing Guidelines Council and the Court of Appeal — and, for murder, by Parliament — that the judge has to stick to. Obviously it’s up to him assess which features apply in the particular set of circumstances with which he’s called to deal, and one judge might be more inclined to severity or mercy than another when someone’s at the borderline between one penalty and another, but certainly for more serious crimes it’s not going to make a great deal of difference which judge is doing the sentencing.

To throw that out of kilter when someone’s life is in the balance seems appallingly arbitrary, and it also seems quite dreadful to put someone in the position — as happened a few years ago, as I recall, when a young British woman was murdered while on holiday with her fiancé in Florida — to put the survivor in a position where he has to plead for the lives of his partner’s killers on the grounds she was profoundly opposed to capital punishment. And in the interests of strict justice, I think you’d have to say that if you have capital punishment for some categories of murder, you have it for all murderers who fall in those sentencing categories, turning a deaf ear to the pleas for mercy made by their victims’ families if they happen to be opposed to capital punishment.

Which, of course, just re-instates the problem for the victim’s family that Dominic Lawson identifies, only for a different category of families.

As an addendum, I see

Iraqi PM Nouri Maliki has said his government could review relations with any country which criticised the execution of ex-leader Saddam Hussein.

Does this mean that if enough British cabinet ministers make sufficient fuss, he’ll tell them to bring the troops home?


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9 Comments »

  1. There’s a worrying trend to make sentencing depend on the emotional reactions of various participants – victims, judges, the public. The decision last year to allow the families of murder victims to tell courts of their grief was another step on the road from a proper legal system towards ‘justice’ by tabloid editors and kangaroo courts.

    The change in the law on double indemnity a couple of years back was justified by the Attorney General saying that he would not be able to “look murder victim Julie Hogg’s mother in the eye”.

    The trend to personalise the law is not unique to Britain. I have read of US judges being criticised by fellow judges for failing to display sufficient emotions, or empathy with victims.

    Comment by Fabian Tassano — January 8, 2007 @ 10:05 am

  2. No argument from me there.

    Interestingly (or at least, I find it so), I was told the other day by the learned clerk at a crown court where I spend much of my time that one of the main concerns about a forthcoming move to new premises expressed by the judges who sit there regularly (other than the parking, of course) is the name of the new institution. It will form part of a complex comprising the magistrates’ court, the main police station and the CPS offices and will be called a ‘Justice Centre’.

    This, they think, is a terrible idea since it’s promising something that they can’t deliver and don’t try to. Everyone involved in a case is going to have different ideas about what a ‘just outcome’ would be, and they can’t all be satisfied.

    What they can hope for, and the judges try very hard to deliver, is the impartial, consistent and humane application of the laws of England and Wales.

    Comment by notsaussure — January 8, 2007 @ 10:36 am

  3. I think they’re right to be concerned. Names can matter. Even if the change is merely part of a superficial rebranding exercise.

    God I could write a whole post, or a whole book, about this issue – and maybe I will. It is such a key symptom of the New Labour revolution, and of what I call mediocracy, to relabel things in ways that both (a) dumb things down and (b) have subtle propaganda objectives. It reminds me of the name change for the DTI to “Department for Productivity”, which fortunately was quickly reversed after general derision from businesses.

    The acolytes of Blairism seem to think that a name change is enough to bring about a brighter and better world. It’s the political equivalent of all the makeover programmes you get now on the telly – the messsage seems to be that appearance is all, content is unimportant.

    Unfortunately, there is often something more sinister involved as well. In the case of ‘justice centres’, as you say, it gives a false impression of what courts are there to do. Plus it reinforces the tendency to turn them into something which will apply currently fashionable definitions of ‘fairness’, rather than the law as defined in statute.

    Phew, enough rant for one comment!

    Comment by Fabian Tassano — January 8, 2007 @ 2:58 pm

  4. PS. As you seem to be a bit of an insider when it comes to juristic matters, I wonder whether you have any dope on the relabelling of the CPS as the “Public Prosecution Service”? (By the way, I’ve done a post based on this post.)

    Comment by Fabian Tassano — January 9, 2007 @ 6:31 pm

  5. “For some people, at least at the time, no sentence would seem adequate to provide what might seem justice; indeed, it’s difficult to see how any sentence can do in the sense of going any way to redressing the loss.”

    How very urbane, cool and detached, as befits, I assume, an officer of the court, and how very removed from human nature. Only a little imagination is required to know that in almost every family bereaved by the death of a loved one at the hands of thugs there will be an enormous desire for revenge. In a civil society it has been agreed that private revenge is against the public good and the state took over the function. It has now broken that contract and thus the ‘justice’ system is now universally derided for the farce that it is. Is it any wonder that the one line in Shakespeare guaranteed to bring forth huge cheers from an audience is: “First, let’s kill all the lawyers!”

    Comment by David Duff — January 9, 2007 @ 10:17 pm

  6. Since the only time most of the audience will have needed a lawyer will be when he did the conveyancing on their house purchase and seemed to charge them pots of money for doing nothing in particular, I’m not completely sure how useful a guide your audience’s reaction is, Mr Duff. Should they ever be so unfortunate as to find themselves accused a crime — particularly if they don’t happen to have committed it — they might find a lawyer comes in handy. But perhaps not.

    As to revenge and so on; what point do you seek to make? Genuine example of which I have first-hand knowledge. Eighteen-year-old girl pleads guilty to causing the death by dangerous driving of her best friend. General agreement that the crash was caused more by inexperience and driving slightly (not grossly) too fast for the road conditions than by anything else.

    What sort of sentence do you think she should have received, and on what sentencing principles do you base this? In particular, how much say do you think the dead girl’s parents — who were understandably beside themselves with anger and grief; they wanted her to get life and serve as long as possible — should have had in the matter?

    Comment by notsaussure — January 9, 2007 @ 10:59 pm

  7. ‘NSS’ (if you will allow me to abreviate you), you are a naughty, sly, lawerly chap! The case you raise above has nothing to do with the main argument, and well you know it. There are a range of human activities which can result in the death of a third party and many of them, like the one you raise above, come under the heading of manslaughter and can, or should be, dealt with according to the circumstances. What I am talking about (as, I am sure, is Mr. Lawson) is ‘good’, old-fashioned murder, usually in pursuance of a crime. The perpetrators should hang.

    Hanging not only provides the victim’s family (in most cases) with a satisfaction of their very natural desire for revenge, but it also satisfies the public in general that murder is still a crime of specific horror that must be met with the ultimate punishment. The failure to do so, and the act of 40 years ago that broke the trust between the people and the law-makers, is part of the reason for the huge dissatisfaction and cynicism with which the system of ‘justice’ is regarded. This cynicism is, I suggest, working in conjunction with other causes like an acid on the body politic and should be of real concern to anyone interested in a truly civil society.

    There is another reason in support of the re-introduction of hanging, and I like it all the more because it is a paradox. Hanging murderers indicates a society that truly holds human life as precious. By insisting on the ultimate penalty, death, for taking another’s life, society is making clear how much it values innocent life. The fact that we no longer do this indicates, along with several other changes in social mores, that today life is considered cheap!

    Comment by David Duff — January 10, 2007 @ 4:15 pm

  8. Seems to me it has everything to do with the main argument. The grief, anger and loss experienced by the parents of the girl who was killed in the case I mentioned was no less real and, I dare say, no less in degree than would it have been had she been murdered.

    You say the families of murder victims should have their sense of loss taken into account when the murderer is sentenced; very well, why do you deny this to the families of those killed through other criminal actions? Or do you seek to operate some sort of sliding scale, whereby the more criminal the death, the more concerned you are about the bereaved family’s feelings?

    Comment by Not Saussure — January 10, 2007 @ 8:49 pm

  9. Now, now, ‘NSS’, I said that the families of murder victims should have their desire for *revenge* assuaged because that was the deal when the state took over the ‘revenge business’ in the interests of a civil society.

    And nowhere did I say that a family’s sense of loss should effect the sentence. I do not agree with the ‘touchy-feely’ NuLabour idea of statements by grieving families in court. For anything other than murder the legislature should lay down the guidelines and the judges should judge, except for murder (and treason, but that’s another argument) when the death penalty should be mandatory.

    And I notice you avoid my point concerning the erosion of the fabric of society when the people sense there is no justice!

    Comment by David Duff — January 10, 2007 @ 11:04 pm


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