Not Saussure

January 31, 2007

Tough on crime

Filed under: Law, Politics — notsaussure @ 6:30 pm

Earlier in the week, I found myself in the rather unusual position of agreeing with Janet Daley in the Telegraph about something, though I didn’t particularly agree with the conclusions she drew.

Besides the obvious reasons for John Reid’s problems with the prison service — incompetence and a complete refusal to face the fact that they were inevitably running out of prison places — she identifies Tony Blair’s famous sound-bite about ‘Tough on crime; tough on the causes of crime’ as part of the problem. Essentially, she argues,

What the New Labour doctrine has done is to conflate the purpose of law enforcement (“crime”) with the role of the social services (“the causes of crime”). Not only does that famous aphorism imply that crime always has a socially determined “cause”, but it creates conflicting and inhibiting constraints on law enforcement: the police and the courts are now under as much pressure to consider the supposed causes of an offence as its consequences. And the “causes” are not simply the specific mitigating circumstances that a judge would traditionally have taken into account in a specific case, but much wider and more endemic issues of deprivation and social injustice.

I think she’s misunderstood the way courts inquire into the cause of a particular crime and the use they make of this information; it’s not just personal mitigation in the sense she seems to understand it in which they’re interested but in how best to protect society by trying to ensure the individual criminal before them doesn’t re-offend. How and why he came to commit the crime is relevant both for determining the nature of his criminality and culpability — was his crime deliberately planned or was it opportunistic? Did he intend the harm he caused or was it through thoughtlessness and stupidity? And certainly, at times, public protection is best served by doing something about the causes of the defendant’s criminality, even though that may well trespass into the territory of social services; if the cause of someone’s being a persistent burglar or shoplifter is, as is so often the case, the need to fund a drugs habit, then getting them off drugs is likely to be a great deal more help to everyone than is imprisoning them, even though the latter may also be necessary.

Where I do agree with Janet Daley, though, is when she says,

The word “cause”, when applied to human behaviour, is deeply pernicious at the best of times: people are not inanimate objects, pushed and pulled by forces over which they have no control, like leaves blown by the wind. Of course we can talk of influences and disadvantages which lead people to do bad things, but to talk of crime having “causes” suggests that there is a scientifically identifiable mechanism which brings about an inevitable result, and that this inevitability absolves the criminal from responsibility for his acts.

I would, however, take this a stage further than does she, and towards a rather different conclusion. The criminal, certainly, is responsible for his acts, though the degree and nature of that responsibility may vary from case to case. His criminality certainly can’t be attributed merely to the social forces that may have inclined him to crime.

However, neither can crime — either crime in general or an individual’s crime in particular — sensibly be attributed to the government’s failure to address ’causes of crime’ at the other end of the judicial process, by not locking up sufficient criminals for long enough, be it in an attempt to deter other criminals or because, while the chap’s locked up, he can’t be making a nuisance of himself outside.

Certainly deterrence plays a role in sentencing. I was involved in a case not so long ago where a woman was to be sentenced for her role in cashing stolen or fraudulently obtained giros. Essentially, she’d been recruited, along with a lot of other people, by a gang of fraudsters who were stealing the cheques in large quantities and then had people going round cashing them at different post offices, in return for a small percentage of the face value.

The amount of money she’d received from her criminal activities was quite small and, as these things go, the amount of stolen money she’d handled wasn’t particularly large. Had it been a straightforward insurance or benefit fraud, she’d have been in little danger of custody, not least because of the considerable personal mitigation she was able to advance.

Nevertheless, the judge said that immediate custody really was the only option because it was part of the operation of an organised gang; otherwise, he explained, it would be all too easy for them to recruit other people to take her place if they could truthfully explain that the worst that would likely happen if you got caught was probation or a community punishment. The prospect of six months or so in prison would doubtless deter others from getting involved in a way that other sentences would not (not least because of the small rewards this crime offered them).

However, if and when the next people recruited by this gang are caught and come to be sentenced, it would not, I think, be right to conclude that six months was clearly an insufficient deterrent, so we’d better make it twelve and see if that works (if she gets caught doing the same thing again, then that’s a bit different, of course, but I’m talking about deterring others).

The fact of the probable prison sentence, in other words, is doubtless a deterrent in many cases. However, in those cases where it isn’t, it’s less than clear that tougher action on a supposed cause of crime (insufficiently deterrent sentences) will have much effect on the crimes themselves. To take an example that concerns many people, not least the judiciary, many young men get tanked up and then find themselves in fights with other, similarly tanked up, young men. There’s nothing particularly new about this, I think. Anyway, such things happen and are, not infrequently, punished by a custodial sentence, depending very much on the amount of harm done to the victim. And quite right, too.

However, it’s by no means clear to me — partly because I can just about remember having myself been a sometimes drunken teenager now and again — that young men who get into that sort of situation are particularly concerned, or even particularly aware, of the legal implications or long-term consequences of their actions. There are all sorts of good reasons for walking away from a fight, many of which occur to most of us when we find ourselves in that situation, drunk though we may be. But I really wonder to what extent, once things get to a certain stage, what role, if any, is played by the rational calculation that ‘if I hit him, I may well go to prison’ or ‘if I hit him I may go to prison for longer than I’m prepared to accept’. It just doesn’t seem to ring true to human experience.

We’re left, then, with only the argument that prison works in the sense that while someone’s in prison he’s not committing crimes outside. Well, that’s true as far as it goes, though it’s still ignoring the actual crime, criminal and victim — you’re sentencing the chap not so much for what he’s actually done to a real person but to make sure he doesn’t get the chance to do anything to anyone for a while. And it’s not really addressing, either, the question of how do you stop him from doing it again when eventually you do let him out — as you’ve got to, sooner or later, in most cases — or whether, in fact, you need to keep him locked up to stop him from re-offending. The chap who gets into a drunken brawl won’t get into any while he’s in prison, but does he make a habit of so doing anyway? And, if he has so done in the past, may not the experience of arrest and conviction be sufficiently salutory in itself? It all seems to me to come back, yet again, to the individual offender, what exactly he’s done and how much damage he’s caused.

The courts, of course, see the offenders as individuals and deal with them as such. The press and the general public, however, don’t; they see them en masse, as elements in the crime figures. And they demand that something must be done. I’d argue that, realistically, there’s not a great deal the government can do to stop someone breaking into my house if he takes it into his head so to do. There are various things I can do to deter him, certainly, in the way of fitting adequate locks and so forth. Doubtless, too, having more visible police patrols in an area deters burglars (or makes people feel more reassured, which I suppose is as important — people worry far more about being the victims of crime than are actually the victims of it). But the real effect, it seems to me, on the likelihood of my being burgled that sentencing policy is going to have must be pretty minimal.

At the level of presentation, this doesn’t, of course, matter. The government can quite truthfully say, ‘we’re doing something about crime and responding to public concerns — we’re putting more people in prison for longer.’ It’s expensive and frequently it doesn’t achieve a great deal, but that’s nothing new when governments start spending taxpayers’ money to solve more or less intractable problems for us.

People commit crimes for all sorts of reasons. They always have done and doubtless they always will. They need to be punished for so doing, partly to express society’s disapproval of their activities, partly to help them change their ways and partly to discourage others from emulating them. Governments take credit for just about everything they can, and oppositions blame them for everything possible. Again, that’s always happened and doubtless always will. But the idea that governments can, in fact, do a great deal to affect criminality in general — given that crimes are committed by people and that people act for all sorts of reasons — seems far-fetched. There are individual measures, certainly, that governments can take to reduce some criminal behaviour — decriminalising many drugs and providing proper treatment for addicts springs to mind — but I think that, for once, Janet Daley is correct and that this present mess is a demonstration of how ‘Tough on crime, tough on the causes of crime’ doesn’t work.

I can think, actually, of one ruler who, doubtless anecdotally, succeeded in allaying his subjects’ fears about crime:

Dracula created a very severe moral code for the citizens of Walachia. You can guess what happened to anyone who broke the code. Thieves were impaled, even liars were impaled. Naturally there wasn’t a lot of crime in Walachia during his reign.

To prove how well his laws worked, Dracula had a gold cup placed in a public square. Anyone who wanted to could drink from the cup, but no one was allowed to take it out of the square. No one did.

and I recall hearing, possibly with more factual basis, a similar story on the BBC’s From Our Own Correspondent about how the Taliban used to be able to leave caches of petrol and ammunition by the side of the road, unguarded, for weeks on end (and without the sanction of impalement, either). But I’m not sure that either of these are models of penal policy we should wish to emulate, despite the doubtless efficacy of their policies in reducing crimes.

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1 Comment »

  1. …The fact of the probable prison sentence, in other words, is doubtless a deterrent in many cases. However, in those cases where it isn’t, it’s less than clear that tougher action on a supposed cause of crime (insufficiently deterrent sentences) will have much effect on the crimes themselves…

    Yes, this seems a logical and valid conclusion.

    Comment by james higham — January 31, 2007 @ 6:39 pm

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