Politicians are relentlessly forward looking. What will make things go better in the future? Justice, by contrast, usually looks backwards. What do these people deserve, given what has happened? These perspectives are often in conflict with one another.
If we could prove, beyond peradventure, that locking a certain class of person up for long periods of time decreased their propensity to commit crimes, would it be ok to do so? Would it be ok to punish you if it made you a better person?
If we could prove, with absolute certainty, that locking up certain people would deter either them or other people from committing crimes, would it be ok to do so? Philip K Dick in his (brilliant) short story The Minority Report imagines a world where criminals could be arrested and detained for crimes before they’re committed because of “precogs” able to foresee the future. Would that be ok?
If an individual commits a grotesque crime, but immediately repents and becomes a thoroughly good person, who we know for certain would never offend again and whose punishment would deter nobody else from behaving similarly, should the state forgive and forget?
My answer to all these questions is an emphatic “no”. Instrumental, forward looking justifications for punishment, such as rehabilitation and deterrence, are insufficient. They do not suffice because it is immoral to use people as a mere means to an end. That is the point of Dick’s story, and the mockery by Voltaire of the British execution of Admiral Byng.
If I am under a duty to do (or not do) something, what happens to the duty once I have broken it? If I am under a duty not to murder you, and I do so, I can no longer comply with it. Does the duty then disappear into the ether? Is it now so much spilled milk? Should we all now look remorselessly forward, and decide how things would now go best, ignoring the past?
I would suggest not. The original reasons for the duty do not disappear once the duty has been broken. Those reasons persist. They now provide the explanation as to why the wrongdoer deserves to be punished.
If a metaphor is thought helpful, a criminal, by breaking his duty, has taken a freedom that he does not rightly have. The original justification for the duty now also provides the explanation for removing an equivalent freedom from him.
The above defence of retribution explains why we think it only acceptable to punish criminals, and not innocent people, even though the reforming or deterrence effects of punishment may be unrelated to whether the person subject to them is or is not a criminal.
However, the degree of punishment that is appropriate is underdetermined without more. We can accept that murder deserves more than a few hours of detention, and parking on a double yellow line does not deserve life imprisonment, but at the margin there is no right answer to the question of whether a violent robber deserves one, two, three years or more.
Within this margin of uncertainty therefore, other instrumental factors, such as deterrence or rehabiliation may be brought into play in determining a sentence. But we should not punish beyond the range that retribution justifies, that would be to use the wrongdoer as a means to an end. We should not have a system of outlawry, where criminals fall outside of the constraints on punishing people more than they deserve. A judge in sentencing should therefore start with the question: what is the range of punishment that retribution justifies? Within that range, instrumental reasons can then be brought into play in determining the sentence.
John Worboys was convicted of nineteen offences, including one count of rape. He is however believed to have committed more than 100 rapes and sexual offences on women between 2002 and 2008. He has served over 10 years in custody, including a period on remand. After a parole board hearing in November his release was approved, subject to stringent licencing conditions. The trial judge had given Worboys a 16 year determinate sentence. Prisoners are released at the halfway stage of their sentence, hence eight years would be the ordinary point of release.
Imprisonment for Public Protection
Worboys was also sentenced to “imprisonment for public protection.” This enabled the detention of criminals indefinitely after the expiry of their tariff. This was introduced by David Blunekett in the Criminal Justice Act 2003, and abolished by Kenneth Clarke in 2012. This abolition was not however retrospective. Many hundreds are still detained on IPP sentences for many multiples of their original tariff. Lord Brown, an under-appreciated member of the UK Supreme Court described this as a terrible scourge, We are (still) living in Philip K Dick’s nightmare, but without the benefit of the pre-cogs able to tell with near certainty who will commit crimes. It is a disgrace.
It is government policy to release IPP prisoners where the risks they pose are manageable. The parole board have decided that this is the case with Worboys.
For Which Crimes?
It is only acceptable to punish people for the crimes they have been proven to have committed. We cannot punish Worboys for crimes he has not yet committed, nor for crimes for which he has not been convicted.
Why was Worboys tried for so few crimes, when it is thought that he committed many more?
I do not know the answer to this important question. There are two possibilities.
The first is that there was insufficient evidence to secure a conviction for other offences. A successful claim was brought under the Human Rights Act against the Metropolitan police for their failure to investigate complaints of serious sexual assaults committed by Worboys. Although this is currently subject to an appeal before the Supreme Court, this concerns the scope of the legal duty owed, there is no doubt as to the shambolic nature of the police investigationa as a matter of fact.
The second is that it was decided not to be in the public interest, presumably on the basis that Worboys was subject to an indefinite sentence in any event. If this was the basis of the decision, in retrospect it appears mistaken.
If then it is impermissible to punish save as justified by the crime committed, how else can we protect the public, by deterring crime and rehabilitating offenders? We primarily try to deter crime by having a police force. We seek to monitor and rehabilitate offenders after release through a publicly funded probation service. The last is only widely appreciated when it is absent, after someone who has been released goes on to commit another offence. So much easier to lock people up.