Okay. The criminal is caught. The police have done their job. Now let’s sentence him. But what sort of sentence shall it be? The 18th century reformer Jeremy Bentham had an easy answer: ‘ … all punishment in itself is evil’.
In a sense we can all agree, but as with ‘turn the other cheek’, such sentiments only work in a perfect world. Forty years before Bentham the Marquess of Halifax had realised the importance of deterrence in punishment when he said: ‘Men are not hanged for stealing horses, but that horses may not be stolen’.
EARLY PUNISHMENT
Due to this deterrent factor, punishment can often be bloody.
Recent research on a corpse found at Stonehenge in the 1920s suggests he was a thief from the 7th century, his head severed by a broadsword and buried in a pagan site so he would rot in hell.
The knight, William De Marisco, offers an early example of being hanged, his bowels drawn and his body quartered in 1242. Each of the four quarters was taken to separate cities for display, a stark warnings to all.
A particularly bloody punishment was meted out to the Beane family in 16th century Galloway following a spate of brutal murders and robberies. All male members had their hands and legs chopped off and left to bleed to death.
TYBURN ONWARDS
From as early as the 12th century English justice usually came in the form of stocks, branding or hanging, with the Tyburn Tree close to today’s Marble Arch in London drawing vast crowds to see executions.
These spectacles comprised moral theatre as well as execution, offering both deterrence and retribution. The 12th century also saw rudimentary prisons such as Newgate coming into being, but they were only holding cells until real sentencing was passed.
Prison as a form of sentencing in itself only evolved following the work of early criminologist Cesare Beccaria in the 18th century. Advocating education as crime prevention, he loathed capital punishment, opting instead for incarceration. To the Victorians this was good, for it allowed time for contemplation so as to purge the soul.
RETRIBUTION
Modern prison sentencing is, of course, in a pickle as we debate the rights and wrongs of punishment or rehabilitation. Which is most important? For instance, is crime fundamentally criminal or increasingly psychological in nature?
If criminal, then punishment is the answer. If psychological, then rehabilitation would seem to be the key. But certainly one factor that is rarely considered today is the importance of retribution.
In an ideal world retribution should play no part, but the simple fact is the police cannot do their work in isolation. Policing only works with the help of the public. And if the public feel reporting crime is pointless because they would not get retribution, then in order to allow the police to work efficiently, retribution simply has to be a factor in punishment.
We have now identified four central elements that can comprise sentencing: punishment, rehabilitation, deterrence and retribution. But there is an eternal clash of contrary opinions of experts in the field.
MINIMUM SENTENCE
This clash concerns varying opinions on sentencing for punishment or rehabilitation, with retribution nowhere to be seen and never the twain shall meet. Well maybe they can meet, and meet most effectively.
Let’s deal with retribution first. At present, in Britain, when a criminal is sentenced to two years imprisonment, he can expect to serve perhaps 15 months. This should change. Rather than being given a maximum sentence, the sentence should instead be minimum.
Good behaviour should not result in a lesser sentence. Rather, bad behaviour should result in an extended incarceration. The human rights lawyers would, of course, have a field-day with this, but read on.
PUNISHMENT OR REHABILITATION?
Let us now look at punishment and rehabilitation. As an example, we will take two criminals who commit the same spate of robberies. One does so for greed and clearly requires punishment. The other is a kleptomaniac who cannot help it.
He has a psychological illness, so clearly needs rehabilitation. What we need is a sentencing policy that works equally well for both offenders. And this requires a fundamental change in our attitudes to sentencing.
When an offender is sentenced it is a fundamental requirement of justice that the punishment fits the crime. However, the sentence should then fit the perpetrator.
The first point is catered for by both offenders receiving the same length of incarceration. But for the latter point on sentences to fit the perpetrator, I want you to imagine prison as a corridor with a number of rooms leading off.
THE CORRIDOR
The first room is labelled ‘hard labour’, the final room is labelled ‘probation’. Between these two extremes are a number of rooms which cater for all varieties of criminals, working from hard punishment to soft punishment to psychological treatment to rehabilitation.
The role of the offender is to pass through every room before release. If, by the end of his sentence, he is not in the last room, he cannot be released until he is.
Of course, this would be expensive, and far more complicated than a simple corridor, but look at the system at work. The clearly bad criminal would have a hard time passing out of the punishment stage, but would eventually come to the realisation that if he never passes through the corridor, he will never be released.
Alternatively, the kleptomaniac would pass quickly through punishment onto the psychological treatment stage. Indeed, if we look to the paedophile, he would no doubt quickly pass through the punishment stage, but if he cannot successfully be treated, the system would allow him to be permanently held in the psychological stage.
A further beauty of the system concerns the silly offender who made one simple mistake. Such a person would quickly pass through the punishment and psychological stages and in a matter of days reach the final stage of probation.
As well as removing him from the ‘university of crime’ problem of incarceration, the system allows leniency and the ability for him to be punished, feel shame, know he is being dealt with, but still allow him to be a member of society. Whereas the hard criminal who cannot change would forever remain off the streets.
IN CONCLUSION
Such a new sentencing policy would require an immense leap of imagination from the authorities. But without such a fundamental change, the streets will not be safe and perpetrators will not be given the form of punishment they individually require.
The system allows punishment to be hard if need be or soft if required. If psychological treatment and rehabilitated are needed, they are endemic to the form of sentencing received.
As for retribution, a sentence would mean just that, with no possibility of parole. And as for deterrence, the hard man could receive a life of incarceration for the simplest of crimes.
Surely that would make them think twice. Indeed, the system is so universal that even the human rights lawyer would be gagged. For in every case the method of sentencing that is finally meted out is entirely the choice of the perpetrator, and his behaviour and needs inside.
Thus, the only human rights affected are down to his own behaviour.
© Anthony North, December 2002
Have you clicked Diary of a Writer on Blogroll? Meet me, up close and personal.
Click Tony On, on Blogroll, for my current affairs blog.
If you like fiction, click Fiction Page on Blogroll for my short stories.
Check out the pages. Find my Links on Eye On the World.
BEYOND THE BLOG 