There is a time and place for hardline criminal justice, but tough is not enough.
Just as one begins to imagine that the liberal pseudo-conscience can go no further in foolishness, it comes up with new schemes to make the world a little worse. Its inventiveness, in fact, is infinite, and no victory over it by common sense is ever more than temporary. The price of sanity, at least in the modern world, is eternal vigilance.
This is not to say, of course, that no liberal reform in the past was ever justified or did no good, or that none will ever do any good in the future. It is simply that, as a matter of contingent sociological fact, many liberals seem to have lost their minds.
The Scottish Sentencing Council, an advisory body with no legislative powers but whose recommendations judges disregard at their peril, put forward a proposal earlier this year that those under the age of 25 should not be sent to prison because research shows that their brains have not yet fully matured. It is difficult to know where to begin in arguing with this fatuity.
Let us then start with the notion that no man under 25 is sufficiently mature to know that it is wrong to strangle old ladies in their beds and the further proposition that, until that age, they are unable to control their impulse to do so.
Mysteriously, the great majority of under-25s do not strangle old ladies in their beds. Mysteriously, also, the rate at which young men behave in this fashion varies widely not only between societies but within societies over time. It may be that stranglers of old ladies in their beds are predominantly young men, but I do not think that such a statistical generalisation can absolve anyone of his personal responsibility, for practically all human conduct whatsoever falls under one generalisation or another.
When I look back on my own life, I think I knew by the age of ten (by which time neither my brain nor my ideas were mature) that one should not strangle old ladies in their beds. Ten was the age at which I stole a bar of chocolate from Mrs. Marks, owner of the tobacconist’s shop to which my mother sent me to fetch her cigarettes (Du Maurier brand—I remember it to this day). I wanted the chocolate, I did not have the penny to buy it with, so I stole it. I knew that I was doing wrong (which is why I hid my action from view)—and wrong not merely consequentially, but morally. I told my brother what I had done and fortunately, in the middle of a quarrel between us, he ratted on me and told my mother. I had to take a penny from my pocket-money to Mrs. Marks and confess my sins to her. I think she knew in any case.
The idea that a man’s brain is so immature before age 25 that he does not know that all manner of crimes are wrong would suggest a revision of our electoral laws, for if a man can neither distinguish right from wrong nor control his impulses, should he have the vote? Should he, in fact, be considered of legal age? Should he be allowed even to choose his own career? I doubt that the Sentencing Council would preen itself on the corollaries of its proposal.
There is, of course, an element of truth in what the Sentencing Council says. Our characters are not fully formed by the age of 25—mine certainly wasn’t. It is true also that there is a biological component to crime, inasmuch as the vast majority of criminals in all societies in which crime is a category of behaviour are young and male. The rate at which even recidivist criminals commit crimes declines with age and most often reaches zero. Time is the great therapist.
But punishment is not therapy. It is a very good thing, of course, if punishment (such as imprisonment) reforms the criminal, and I think that it is a moral obligation of the state, if it is to lock up people, to try to give them something purposeful and worthwhile to do. But that is not the primary purpose of punishment. If it could be shown that rewarding criminals with large fortunes would change their behaviour—as almost certainly it would in most cases—we should not advocate such a course, even if it were a better way of reforming them in the sense of reducing their recidivism rate
It is difficult for people to imagine justice without at least an element of retribution, albeit kept within the bounds of decency. But deterrence and the protection of society are perhaps the most important justifications and functions of punishment. Crime is not illness, though we seem to be moving in the direction of Samuel Burler’s satirical imaginary country in which crime is regarded as illness and illness as crime.
The Sentencing Council argued that young men are easier to rehabilitate than old. Even if one agreed with the notion of rehabilitation, as if punishment under the law were a kind of moral physiotherapy, this is empirically doubtful and needs to be proved rather than asserted. Certainly, the recidivism rate declines with age at release from prison.
But in any case, what the Sentencing Council disregards is the obvious fact that the vast majority of young people sent to prison are not first-time offenders. The British think tank Civitas recently published a paper that claimed it was easier to find a prisoner in the British prison system with 45 convictions to his name than to find one sent to prison on his first conviction. In other words, most of those sent to prison have already undergone such so-called rehabilitation as the system can offer, evidently without success. And when one realises that most prisoners have committed many more crimes than those for which they have been convicted, one can deduce that the Sentencing Council’s proposal amounts almost to impunity for young criminals. No doubt it preens itself on its largeness of mind in proposing such a thing.
I forgive it, however, because many of its members must by now have reached the point of declining brain power.