11 July 2013

Crime and Punishment

Well, another week and another depressing insight in to the minds of my fellow country men and women.

The recent ruling by the European Court of Human Rights that prisoners cannot be detained for life without any chance whatsoever of release is against their human rights, has been met with the predictable, but depressing reaction by certain sections of the political classes and press. Calls for us to remove ourselves from the ECHR and 'be in control of our own laws' is par for the course whenever anyone dares criticise how we treat those who live within our borders.

Ironically these are often the very first people to criticise foreign governments for any perceived heavy handed treatment of their citizens, a position which only increases the hypocrisy and childishness of their reaction to criticism of this country.

Governments are given significant and incredibly powerful rights to curtail people's human rights. The reason is clear; they need this to be able to make the laws which protect society. However, when we collaborated on setting up the ECHR, it was recognised that it was dangerous for governments to be given free reign to determine the extent of this power without oversight. This was a fundamental, defining reason for the formation of the ECHR, which the UK played a significant role in setting up, and who's own historic human rights legislation played a large part in forming the rules by which it makes decisions.

In the case of prisoners, the justice system has the right (given by the government) to curtail several rights, the most important of which is the subject of this latest apoplexy: the right to freedom.

The prime reason for restricting a criminals right to freedom is to prevent them from causing any more harm to others and as a punishment for violating the laws of the country, as a deterrent, a lesson to the individual and as recompense to the victims (or/and their families, friends and loved ones).

If we actually look at these reasons in light of the recent ECHR ruling, it reveals a very ugly side of those spitting fury at the decision.

The ruling said:

"For a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review."


"The need for independent judges to determine whether a whole-life order may be imposed is quite separate from the need for such whole-life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds."

The ruling in now way says that judges cannot hand out whole life sentences, nor that people cannot under any circumstance be imprisoned for the rest of their life. The only requirement is that there is some provision for review of the procedure.

If we look at the case for protecting the public it is clear that this ruling has no effect on the ability to do this, a review of any sentence will always include a review of the risk they pose to others and no prisoner would ever be released were they considered a risk. Further to this the release could simply be parole, whereby the prisoner is still considered to be carrying out their sentence (in this case, for life) and be subject to and such restrictions, such as tagging or curfew, that the court sees fit to impose.

When it comes to a deterrent (I will leave aside for now, the argument, and supporting evidence, that prison is at best a poor deterrent) we are talking about a life sentence, with a minimum of 25 (as suggested, but it could be longer) years in prison, followed by a review that is no guarantee of release and even if it is, is still subject to severe restrictions to your liberty (and will follow you for the rest of your life irrespective). This is still a significant punishment. Conversely, if we make no provision whatsoever for the guilty party to genuinely change and rehabilitate themselves, then we remove the impetus for anyone who commits such a crime to give themselves up and atone for their actions.

Which brings us to the next point, teaching the individual a lesson. A review of a sentence is not a reward for good behaviour, it is a recognition that genuine change can be made and that a person can feel regret and remorse over their actions and desire atonement. It is an important part of any meaningful punishment that these things occur, and far from being a lighter sentence, instead simply makes it a more meaningful one.

This leads to the last aspect: retribution, the final aspect of dispensing justice, paying the price of the crimes committed and the cost it had to others, and here we also come to the crux of the debate.

Those who argue against the ECHR ruling say that giving a review is denying 'justice' for the victims of the crime. 
The ECHR say that denying any review at all is incompatible with article 3: 

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The inhuman part about whole life sentences with no chance of review is that they deny that there is any chance of rehabilitation. Rehabilitation may or may not happen, but the opportunity to change and to feel guilt and remorse is a human characteristic, and denying this possibility is treating them as less than human.

It is a sad, but understandable reaction for the victims to feel that such a person can never change and should be punished for the rest of their life, after all, they have been subjected to something terrible and life changing that no-one would ever wish on anyone. Punishment of the perpetrator is a big part of the healing process, a recognition by society of the awfulness of what has happened, but I don't think we should dismiss the potential for recognition by the perpetrator to help this process too.

In my view the ECHR ruling is perfectly justified. Those who claim to be 'sickened by it' or see it as disgusting really need to ask themselves why they think that it is a more fitting that justice serves only the punitive aspects, rather than the more meaningful combined purpose to not only punish but to determine the effect and effectiveness of that punishment. Imprisonment is a loss of physical freedom but ultimately it is a more complete form of punishment when there is an psychological and emotional change, when the sheer horror of the crimes they have committed is realised and allowed to weigh down on them, to feel guilt and to remorse for their actions. That achieved, a lifetime of restricted movement on parole and a life lived with guilt and no prospect of a normal life is not an easier punishment, nor any less of a burden than is deserved. 

How does it serve the victims if there is never any chance of knowing whether or not the crime and punishment have truly affected and changed the perpetrator beyond physical incarceration?