This Arbitrary Court

The European Court of Human Rights in Strasbourg has granted, by 16 votes to one, an appeal by three men in England who have been sentenced to life imprisonment without the possibility of release. These sentences, the men claimed, breached their human rights according Article 3 of the European Convention on Human Rights, which forbids ‘inhuman and degrading treatment.’ The court agreed.

In its ruling the court said, inter alia:

If such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence.

The court added that prisoners must have their sentences reviewed, with regard to release, after 25 years at the latest, and regularly thereafter.

At first sight, this ruling might seem compassionate; the judges clearly feel, or claim to feel, for the convicted men. But actually the sentimentality of the judgment is but the reverse side of its implicit brutality, as well as being an invitation to legal arbitrariness.

The three men who appealed were Douglas Vinter, a man who killed a work colleague, was released nine years later and then killed his wife; Peter Moore, who killed four homosexuals for his own sexual gratification; and Jeremy Bamber, who killed five members of his family. Bamber denies his guilt, in which case, of course, his real complaint is not that he received a whole life sentence, but that he was convicted at all. His complaint is therefore vexatious (and indeed he called his success ‘hollow’). To be innocent and incarcerated even for a day is unjust.

But on the supposition that he is in fact guilty, none of the three men seem very good candidates for judicial sympathy; and what, in effect, the judges said that proves their startling lack of imagination and perhaps even the brutality of their sensibility is that they could imagine no crime that put a person beyond the scope of bureaucratic forgiveness or rehabilitation. This, on a continent in which, within living memory, untold millions of people were done to death with unparalleled ferocity! The judges of the court could be judges only in a society that had completely lost its moral confidence.

The judges of the court appear to have accepted uncritically the view that the purpose of punishment is above all rehabilitation. They have not noticed that this view introduces great arbitrariness into sentencing, the very thing they claim to want to avoid, for two obvious reasons.

The judgment as to who has been rehabilitated and who has not is intrinsically very uncertain, indeed arbitrary, and reliant on the opinions of people posing as experts. Indeed, they had a striking example of the fallibility of such experts before their very eyes, that of Douglas Vinter, who would have been released after his first killing on the supposition that he posed no danger of repetition of the offense. (In a certain light, indeed, the judges’ lack of judgment and understanding is almost comic.)

The three elements of rehabilitation are usually taken as confession, remorse and re-integration into normal life.

The judges do not appear to know that prisoners who deny their crimes or claim not to remember what they did often acknowledge them, or recover their memories for them, shortly before they are first eligible for parole (on the grounds of their supposed rehabilitation); or if the judges do know this, they do not draw the appropriate conclusions from it.

Moreover, confessions may be coerced from people who genuinely believe themselves (and are) innocent; unfortunately, miscarriages of justice can, do and must sometimes occur. Let us suppose, for example, that Jeremy Bamber really is innocent: after years in prison he might find it expedient, in order to have some hope of release to confess to what he did not do. To coerce confession instead in the place of continued denial is unjust.

Remorse is easy to fake, and this puts good actors at an advantage over bad. Justice should not be a matter of thespian accomplishment directed at the applause of a parole board. But there is something more important yet, that goes to the heart of this matter. It was the crime writer, P. D. James, who spent much of her early career in the British government department that administered prisons, who pointed out that if someone who had committed crimes such as those imputed to these three men truly repented of what he had done, and truly understood its moral import, he would not campaign for his own release but be content to let others decide his fate. In other words, he would quietly accept his imprisonment as inherently just, however long it was.

As to re-integration into normal life, the outcome cannot possibly be known in advance. Surely the judges have heard of people who genuinely and sincerely wish to give up smoking, and who indeed do so for a time, only to start again under some pretext or another? A man may go straight for a day, a year, a decade, and yet repeat. Thus the requirements of rehabilitation as a condition of release are necessarily arbitrary and therefore unjust. It is right that efforts should be made to reintegrate a man into society at the end of a determinate sentence, both on the grounds of expediency and humanity, even if the efforts should fail; but it should not be a condition of his release that he demonstrate that he is rehabilitated, a condition which leads to whim and caprice.

There is another fatal flaw in the rehabilitative view of justice. Justice requires punishment according to what a man has done, not according to what he will do. (In practice, of course, it is not what he will do that is judged but, even worse, what he might do, since what he will do cannot possibly be known except in rough statistical terms.) In other words, just punishment is backward looking, while rehabilitation is forward looking. A man is punished more severely for a second offense not because he has shown that he will repeat in the future, but because he has repeated in the past. Moreover, if supposed rehabilitation is the requirement for release, the length of sentences cannot be known in advance: and predictability is an elementary precondition of justice.

There is nothing unjust (no derogation of anyone’s human rights) in society saying that a person forfeits his right to live as a free person in that society if he commits acts above a certain level of malignity. Indeed, one might say that a society that does not say such a thing has lost its humanity, its capacity to react to moral outrage. This does not mean that people who commit such acts should be dealt with cruelly, subject to torture, and so forth: a distinction I shall soon come back to.

Let me first give an example of what I mean by a crime beyond the pale. A man who was possessive and jealous of his girlfriend, and had been violent towards her, drugged her when she said she was leaving him, and while she was asleep started to put her eyes out. Ignoring her cries, he blinded her for life.

It is not easy to think of a more vicious or wicked crime, at least committed by anyone not in command of an organization or state apparatus. The law provided that this man could get a life sentence, which he duly did: but with the recommendation (of the kind beloved of the European Court of Human Rights) that he serve at least six years. With appropriate, contrition, then, he would be released after that period.

I will overlook the cruelty of this sentence towards the victim, with its suggestion that her loss of eyesight at the hands of a man was worth the sacrifice of only six years of that man’s life. But there is something even worse than this frivolous sentence. If a man serves six years in prison for a crime such as this, what sentence can be given to a ‘mere’ burglar or street robber? The absence of real (whole) life sentences exerts an inevitable downward pressure on other sentences, since it is another elementary condition of justice that worse crimes should be punished more than lesser crimes. Leniency towards the vicious is a green light to the merely bad.

Pace the European Court of Human Rights, lifelong prison sentences are not unusually cruel or degrading, and prisoners can be give incentives both positive and negative to prevent a sense of pointlessness. In my time as a prison doctor I treated prisoners who had impaled babies, repeatedly raped young girls, or blinded women with acid, but I hope I treated them decently and even with kindness; certainly I made a deliberate effort to treat their illnesses in the same way as I would have treated anyone else’s.

In my view, then, the judgment of the European Court of Human Rights demonstrates that its judges have no grasp of human realities and, even worse, of the principles of the rule of law. The judgment represents the triumph of feeling over thought – and ersatz feeling at that.