You can always tell that a policy is a winner when its advocates start simultaneously arguing that it’s a very important reform and that it won’t actually change anything, as did one of my fellow witnesses on recent edition of Radio 4’s ‘Moral Maze’.
The creation of the Supreme Court is perhaps the prime example in the legal sphere, but the new Sentencing Council guidelines at the centre of the current row over ‘two-tier justice’ – the subject of our discussion – are another.
Don’t most trials already have pre-sentencing reports, after all? Are judges not already supposed to take mitigating circumstances into account? Isn’t it good for a judge to have all the facts about an individual before sentencing?
We shall deal with those claims in detail momentarily. But before then, we should note that they are ultimately specious. The purpose of the Sentencing Council’s guidance – indeed, of the Sentencing Council itself – is to drive changes in outcomes, and that is precisely what this latest policy is intended to do.
In this case, that change is softer sentences for anyone possessing one or more of the laundry list of characteristics in the new guidance. For that is the actual, observable function of pre-sentencing reports: they are usually (although not strictly) required for a suspended sentence, and cases with them are much more likely to result in community sentences than those without.
Reasonable people can differ on the rightness of this system. It is perfectly coherent to believe that a crime should be judged strictly on the facts of the case; that a convict’s life circumstances are, should, or even could be ‘mitigating’ is a philosophical belief, not a fact. Likewise, one could argue that the information in pre-sentencing reports enhances judicial decision-making and should thus be mandatory in all cases. Or just leave it up to the judge, as now.
What the Sentencing Council is proposing, however, is that certain groups of people should have an enhanced, protected right to pre-sentencing reports. This is baking an explicit inequality into the very structure of the justice system, no two ways about it. Whatever good an individual advocate of the change thinks such reports do (and there must be some, or why bother?), they are now going to be disbursed on explicitly unequal terms.
The standard counter-argument to this is that the system is already unequal, because it produces disproportionate outcomes for certain groups over others, and thus this intervention (whilst, of course, not really changing anything) is tipping the scales of justice back into balance. But this is an extremely serious charge based on either a category error or wilful sleight-of-hand.
It is not proof, or even evidence, that the justice system is racist, sexist, or whatever else if it convicts and sentences people of a particular group at a higher proportion than their share of the overall population. What matters, or ought to matter, is what share they make up of the people committing the crimes.
For the operation of the justice system to be prejudiced against a particular group – and it is the operation of the justice system the Sentencing Council is trying to change – one of two things would need to be true: that either a large number of people of that group are being convicted of crimes they didn’t commit, or that a large number of people outside that group are getting away with crimes they did.
Either of those would be a genuine scandal and a terrible indictment of our justice system. And it is precisely because the charge is so serious that it cannot be simply implied or assumed. If somebody wishes to allege that one of the fundamental pillars of constitutional government is systemically persecuting a section of society, they must evidence that claim.
The other version of the argument, which follows the logic of pre-sentencing reports, is that disproportionate sentencing outcomes (relative to the general population) are a consequence of a racist/sexist/whateverist society, and that interventions such as that of the Sentencing Council are about ameliorating that.
This case is at least more honest about its intentions, inasmuch as it tacitly concedes that it is calling for a two-tier justice system, albeit as a counterweight to an allegedly two-tier society. It may appear to have merit, if you believe that time off someone’s sentence is fair compensation for their having had in some manner or other a hard lot in life.
But even setting aside practical objections (such as that an explicitly uneven justice system makes maintaining the harmony of a diverse society harder, not easier) it isn’t necessarily coherent, and in fact the logic of it could point in the exact opposite direction to that assumed by people making this argument.
When someone’s circumstances are described as ‘mitigating’ – having come through the care system, to choose one example from last night’s discussion – the obvious question is why they’re mitigating. What relevance do their circumstances or characteristics have to the crime they committed, and thus the sentence they should receive?
A few bold purists might argue simply that someone hasn’t had a ‘fair shot’ and deserves a break. But why? For any given characteristic, the overwhelming majority of people with it manage not to commit crimes. They are not given some other means of cashing in the compensation they are apparently due, and might otherwise have taken in the form of judicial leniency.
Thus, the logic behind the leniency cannot simply be balancing the supposed injustice faced by women, black people et al as a category, unless we think the criminal element of any such group deserves such charity more than the non-criminal element. (Which a few justice reform campaigners might, in fairness.)
More concretely, the existence in each category of the much larger non-criminal element strongly suggests that the physical characteristics that define that category aren’t the critical variable, and thus militates against those characteristics being treated, a priori, as mitigating at all. The logic of the argument otherwise starts to run away from those making it, for the alternative form of it is that an individual’s circumstances add up to a form of diminished responsibility.
Actual diminished responsibility, which our legal system already recognises, is a very high bar to clear, and it reflects the fact that some people, such as children or those with certain forms of serious mental illness, are genuinely not in full command of their own actions and thus cannot be held accountable for them to the same extent as a sane, adult suspect.
People deemed to have diminished criminal responsibility are not otherwise allowed to live on the same terms as everyone else. Children do not have the rights afforded to adults, and in a country where whole-life orders for sane criminals are extremely rare (and early release extremely common), those detained instead under sections 37/41 or 47/49 the Mental Health Act 1983 are regularly detained indefinitely.
Such a regime may be kinder, but it is not (with adults) obviously more lenient. Because if somebody’s characteristics or life experiences make them more likely to commit crime – or at least, less able to resist committing it – the case for their physical freedom reduces in tandem with any reduction in their moral culpability.
Contrarily, as CS Lewis noted in his seminal essay ‘The Humanitarian Theory of Punishment‘, the corollary of judging and punishing somebody is both recognising that just punishment, much more than well-intentioned care, has moral limits, and respecting that person as a fully-formed moral actor able to make different, better decisions, both in the past (justifying punishment) and the future (admitting rehabilitation).
That, surely, is a courtesy we should extend to women, ethnic minorities and anybody else in the Sentencing Council’s shopping basket of special cases – unless given very good, individually-specific reasons to think otherwise.
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