Is disproportionate punishment ever justified?

Magistrates and crown court judges have been handing out tough custodial sentences to people arrested during the recent riots. Offences that would normally have attracted community service orders, sometimes no more than a police caution, have seen people sent to prison for months or even years. A mother is sent down for five months for wearing a pair of shorts that someone else had looted. A young man is given a four year sentence for creating a facebook page which may been part of a drunken prank. An eight-year-old girl may be made homeless because her previously law-abiding brother managed to get himself arrested within the borough of Wandsworth.

Whether or not you think these sentences are just and proportionate, and whether they represent just deserts, will depend on your view of appropriate punishment. Many will be glad to see the end, temporarily at least, of soft sentences, at least in these circumstances. Others worry about the effect on hitherto law-abiding people of being sent to prison where they will be held alongside sociopaths and drug-addicts. My own primary concern is with the enormous cost of all these extra prisoners at a time when the government is supposed to be reducing the deficit. But then I'm like that.

But whether good or bad, these sentences are certainly different. The normal sentencing guidelines are being stretched to the limit, or even (it has been rumoured) thrown out entirely. Suggestions of directives being issued from on high have been denied, but perhaps the judges and magistrates don't need to be explicitly told. The political steer coming from leading politicians, especially David Cameron, was obvious. So, if newspaper coverage or the first opinion polls were anything to go by, was the public mood. Savage sentences are always going to be popular. As Ken Clarke recently found, it's always dangerous for a politician to appear to be advocating lower sentences, either out of liberal principle or a desire for parsimony.

An interesting statement of the new mood was made by Judge Andrew Gilbart QC, honorary Recorder of Manchester, before he sentenced a group of rioters the other day. He denied that he was acting under orders from the government or the Courts Service: "I have received no advice... Had I done so, I would have ignored it." Instead, he offered his own rationale for treating those involved in the disturbances with unusual severity:

Any participation whatsoever of whatever duration in the criminal activities of that night in Manchester City Centre or in Salford, irrespective of its precise form, derives its gravity because it was carried on by one of those who by sheer weight of numbers subjected the commercial areas to a sustained onslaught of burglary, robbery, theft, disorder and other related offences. Anyone on the streets that night who took part in crime added to the effects of the overall criminality, and hampered the efforts of the Police to bring it under control, and of the owners and operators of those businesses trying to protect them.

In other words, offenders are not being punished just for their own crimes, but for the fact that they were part of a riot. It scarcely matters whether they normally exhibit criminal tendencies or were simply swept up in a moment of madness. They were part of a crime much bigger, and more serious, than the window-smashing or looting of trainers for which they came before the court.

Now is this approach to sentencing a good one? One justification is that these exemplary punishments will serve as a deterrent, and that preventing further riots and disorders is, in itself, a valid use of sentencing for particular minor crimes. Judge Gilbart again:

Those who choose to take part in activities of this type must understand that they do so at their peril. It must be made equally clear, both to those who are apprehended and to those who might be tempted to behave in this way in the future, that the court will have no hesitation in marking the seriousness of what has occurred and it will act in such a way in the present case as will, I hope, send out a clear and unambiguous message as to the consequences to the individual. It is a message which I trust will deter others from engaging in this type of behaviour in the future.

Gilbart added that it would be "wholly unreal" for him "to have regard only to the specific acts ... as if they had been committed in isolation". One consequence of this, though, is to throw normal sentencing policy into sharp relief. On the one hand, Jonnie Marbles' four weeks for glouping Rupert Murdoch suddenly doesn't seem quite so outrageously harsh - or even Charlie Gilmour's 16 months for swinging on the Cenotaph, come to that. On the other, what about this?

A drunk student who partially blinded a man in a savage attack has avoided jail. Ben Redman, 22, from Basildon, punched his 53-year-old victim to the floor after being challenged by Stephen Hails for pushing a girl on to a car bonnet.

The victim has now completely lost vision in his left eye. He was also left with a fractured thumb and eye socket during the attack in Ipswich, where Redman studies at University Campus Suffolk.

Ipswich Crown Court heard witness statements describing Redman as having a “wild look in his eye” in the lead up to the assault on Mr Hails last December.

He intimidated and goaded his victim by asking: “What are you going to do about it, old man?” Redman drew his arm back behind his shoulder and landed a blow below Mr Hails’s eye. It caused him to fall to the floor, hitting his head and losing consciousness.

The business and marketing undergraduate admitted causing grievous bodily harm. Judge David Goodin sentenced him to 12 months in prison, suspended for two years, and ordered him to carry out 250 hours of unpaid work. Redman must also keep to a two-month night-time curfew at his mother’s house in Basildon.

A suspended sentence for a crime which the judge, passing sentence described as "a savage, brutal and mindless attack."

Perhaps there were special circumstances that didn't get reported; there often are. On the face of it, though, this punishment is as disproportionately lenient as the five months' jail for wearing stolen shorts is disproportionately harsh. Placed side by side, the sentences seem manifestly absurd. Any well-ordered justice system should treat the savage and unprovoked beating of an innocent man, leaving him permanently disabled, as deserving greater punishment than handling a low-value item of shoplifted property. One or other of these sentences must be wrong. I would argue that they both are.

There may be a distinction to be made, though, between pragmatism and abstract justice. To put the matter starkly, there might be good reasons to treat the spontaneous loss of control of a normally law-abiding person, swept up in the Dionysiac exhilaration of a riot, more seriously than a crime committed by an individual acting entirely alone, someone who did something wicked all by himself.

Of course there is no excuse for violence or looting. That others are rioting doesn't give you carte blanche to riot. You always have a choice. One might argue, then, that one's moral culpability is the same whether you are acting alone or as part of a crowd. I agree. Yet psychology has repeatedly demonstrated that group behaviour is very powerful, exercising an almost coercive effect on most individuals.

People are like sheep. They do things in groups that they would never do alone, that they would be horrified even by the thought of. Indeed, some of the outliers brought before the court demonstrate just how diverse were the rioting crowds. There was even a student from Exeter University whose background looks to have been indistinguishable from that of Kate Middleton. Being in a large group can inspire a coward to revolt against a tyrannical government. But it can also inspire a decent person to form part of a lynch mob. It's part of how people function collectively.

That being the case, is it really fair to hand out exemplary sentences to rioters who were merely acting in accordance with human nature, who are not actually violent criminals? And is such sentencing policy good either for them or for society?

Perhaps it is.

The rioters and looters are being punished, I suspect, neither for the particular crimes they committed nor for their part in the greater criminality of the riot, but as an attempt to deal with this very dangerous tendency of human psychology. If people in groups are particularly susceptible to peer pressure and may therefore behave with uncharacteristic violence and lawlessness, then a disproportionate sentencing regime may be justified. Blatant unfairness may be justified. It is about "sending a message", after all. The message must be strong enough to deter someone caught up in a crowd, someone tempted almost beyond bearing to join in the orgasmic ecstasy of mass misbehaviour. Something must be available to activate their normal mechanism of restraint, which under such circumstances is severely compromised. Fear of going to jail for a long stretch may just do the trick.

The criminal justice system does not just exist to promote fairness. Part of its job is to preserve public order by instilling fear. And long experience shows that it is the normally law-abiding who are most easily intimidated.

But I do still worry about the cost.


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