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Mind-Reading and the Rule of Law

What did Satoshi Uematsu and Adel Kermiche have in common? Both were young men, both were psychologically unstable, both were in the grip of vicious ideas, and both killed their victims pitilessly with knives in fulfilment of those ideas. Uematsu wanted to rid the world of the disabled, Kermiche of unbelievers. They both had some vision of perfection that would be brought about by clearing the world of those they deemed unworthy to live in it.

Uematsu made no secret of his views. Indeed, he was put in a psychiatric hospital for a time, having written a letter to the Japanese parliament suggesting that disabled people unable to look after themselves should not be allowed to live, and saying that he was prepared to kill 470 of them himself in two facilities for the disabled that were known to him.

However, he was deemed sane and eventually released. With the inestimable benefit of hindsight, the decision to release him has, only too predictably, been criticized. If only he had been safely tucked up in the psychiatric hospital the 19 people he killed would now be alive.

The problem is that people make idle and non-specific threats all the time and not one in a hundred of them ever carries out his threat. Preventive detention on suspicion or mere possibility is not an instrument of the rule of law. If sometimes it is invoked with the psychotic who have proved themselves violent in the past when they become psychotic again, it is done reluctantly and with safeguards, at least in theory. As the 18th century British judge, Lord Mansfield, put it: “As long as an act remains in bare intention alone, it is not punishable by our law.”

This is the case everywhere the rule of law prevails. Uematsu had no history of violence before his orgiastic acts of murder, and was described as having been a polite and smiling young man. But as Hamlet knew, a man may smile and smile, and be a villain.

The trajectory of Kermiche was rather different. This 19-year-old of French birth and Algerian descent, the youngest of five children, was troubled from a very early age. He was diagnosed with Attention Deficit Hyperactivity Disorder between the ages of six and 13, and whatever the validity of this diagnosis, it is rarely a good augury. He was treated, or at least followed up, by psychologists; he was admitted to a hospital for a time and finished his schooling at the age of 16. By the age of 19 he was known to the security services as a man of extremist propensities. He twice tried to go to Syria to volunteer for jihad on behalf of the Islamic State, but was returned to France first by the Germans and then by the Turks.

The first time, charged with “association with criminals of a terrorist organization,” he was released on bail but did not keep to the conditions laid down, resuming his attempts to reach Syria. The second time, he was remanded into custody for 10 months awaiting trial, before being bailed once more with conditions, among which was that he live with his parents, wear an electronic tag, and leave home only between the hours of 8:30 a.m. and 12:30 p.m. It was between those hours that he and an associate cut the throat of the 86-year-old Father Jacques Hamel while Father Hamel was saying Mass in the Church of St. Étienne-du-Rouvray in Normandy.

Kermiche had told the examining magistrate who released him on bail the second time, who was no doubt somewhat (and justifiably) disturbed that it was taking so long to bring him to trial, that he would henceforth pose no danger—in effect that, in the cant or psycho-babblish modern expression, he wanted his life back. He wanted to lead a normal life, get a job, and find a wife. The magistrate believed him.

These two cases show just how fallible are judgments of immediate or remote dangerousness. It is unlikely that the Japanese psychiatrists and the French examining magistrate were fools or negligent in any straightforward way. Instead both were prey to the ineradicable problem of the false positive and the false negative that, absent perfect discrimination, haunts even the best of scientific tests applied to humans. Inaccuracy will continue forever to bedevil predictions of human behavior (though, of course, perfectly predictable human behavior would lead to even worse horrors).

If this is the case, arbitrariness is now an important quality of criminal justice in the United States, Britain, and elsewhere, countries that pride themselves—falsely—on valuing the rule of law above all. I refer to the use of parole for prisoners, which depends so heavily on speculation on what prisoners might do if released.

In the prison in which I worked for many years, I was often asked by the Parole Board to give an opinion on the dangerousness of a prisoner being considered for parole. Before long I refused to do this, as being contrary to the rule of law. It was possible, I suppose, that from long experience and much reading that my opinion would have been marginally better than that of the man in the street (though it also could have been worse). But men were supposed to be punished on the basis of what they had done beyond reasonable doubt, not on 70 to 30 percent chances (or whatever the odds) of what they might do in the future.

In effect, men were to be punished or rewarded according to speculation on their future conduct: those who in reality posed no danger might be punished the more, and those who in reality posed a severe danger might be punished the less.

The decision often rested on the acting ability of the prisoner, for example how well he could persuade the board that he felt such feelings as remorse. But remorse is an inner quality, and expressions of it are not to be trusted where a reward is offered for them and a penalty exacted for their absence.

Moreover, a certain number of long-term prisoners proclaimed their innocence all along. It is inevitable, given the fallibility of all human institutions, that some of them must indeed have been innocent, however scrupulous the authorities tried to be. There was no parole without acknowledgement of guilt, which must have placed innocents under intense psychological pressure to confess to what they had not done. If they did so, however, their chances of vindicating themselves, which was never very great in the first place, would disappear almost entirely.

I came to the conclusion, then, that determinate sentences unalterable by parole were a requisite of the rule of law. Even if this has its inconveniences, the rule of law is the rule of law, not another thing. Determinate sentences are not the same as inflexible ones: mitigating (and aggravating) circumstances must always be taken into account, but they should be matters of discoverable fact about the past, not of inevitably amateurish speculations as to the future.

Parole introduces avoidable arbitrariness into the criminal justice system, and while arbitrariness cannot be avoided altogether, it should be kept to a minimum.

With regard to the Kermiche case, in which custody pending trial was employed, speed was of the essence. Say, for the sake of argument, he had been found innocent; then he would have just spent 10 months in detention while innocent. The law’s delay is never agreeable, but where the deprivation of liberty is concerned, it vitiates justice itself.

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