Dumbed Down Debating

The real winner of this week’s latest fracas controversy debate on rape is probably the BBC and the producers of BBC Question Time. The programme obviously hit the jackpot when Ken Clarke put his foot in it, two days before the show was to be recorded at Wormwood Scrubs prison. In fact, in these conspiratorial times, it’s enough to make you wonder if Ms Derbyshire wasn’t purposefully trying to trick the Justice Secretary…

In any case, the show made for interesting, if somewhat confusing viewing. Interesting that, to the left of the master of ceremony, Shami Chakrabarti of Liberty was siding with Ken Clarke, while to the right New Labour’s justice tsar Jack Straw was cosying up to Melanie Phillips of the Daily Mail. Funny and confusing days we live in… I mean, how is one supposed to know who to shout at?

After the inevitable re-affirmation of the week’s most popular truism that rape is, indeed, rape, the questions and the answers started getting infuriating moronic interesting. In particular, Ms Phillips’ cry for criminals, and rapists in particular, to serve their ‘whole sentence’ signalled a turn for the worse.

The sentence, the whole sentence and nothing but…

Sentencing is a difficult decision making process, related but distinct from the finding of guilt. It is based on many different factors, including personal characteristics, the circumstances of the act – including the seriousness of the crime, and any plea bargaining, potentially based on a guilty plea. This is nothing new, sentencing decisions are individual decisions made according to well established guidelines whether for rape or any other crime.
(see a later post for interesting links on the issue, but for a good place to start, there’s here and here)

So what is the ‘whole’ or ‘right’ sentence supposed to be like? Is it the maximum sentence, as stated in criminal law books for each offence? Is it the average sentence given out for a particular offence? Or is it the one that the judge has decided, after considering all the elements of a particular case?

There is no such thing as a perfectly ‘right’ sentence. There is, for that matter, no such thing as a perfect criminal justice system. Or maybe there is: a non-existent one. A perfect criminal justice system is, by definition, one where no crime is committed and therefore no system is needed to deal with it. Crime – ie situations in which individuals cause other people and society in general harm – is messy, and any system designed specifically to deal with it will inevitably be a messy (though necessary) business too…

Dumbing down to move up

Assertions that ‘Prison works’ and that New Labour reduced crime because it filled prisons up are unhelpful at best, and disingenuous at worst. It is yet another easy comment in a political discourse on criminal justice which has been depressingly simplistic over the last 15 years. Despite Tony Blair’s heartening promise to “fight crime and the causes of crime”, the fight against the latter were quickly forgotten. Ken Clarke’s unfortunate mumblings on Wednesday are a good reason why politicians are so reluctant to engage in a proper debate on the actual issues of criminal justice, but they should know and do better.

In that respect, Ken Clarke’s intervention on Question Time was commendable, in that he actually tried to explain what legal bloggers have been saying for the last few days: that a reduction in sentence for pleading guilty is a well established practice for all crimes including rape, and that in augmenting slightly the reduction available to very early guilty pleas, we might save some the ordeal of a lengthy criminal trial while also encouraging responsibility from the offender.

By opposition, Jack Straw’s claim is a good (bad?) example of this dumbed down discourse. Even if the causal link between the two facts was established (and that is seriously disputable), then New Labour’s contribution to the fight against crime would be equivalent to that of someone scooping water out of a sinking boat as it steadily flows in through the hole in the bottom… We just throw a few more in prison long enough to get a couple of good statistics, until they come back through the hole and get thrown out (or in) again… 

Any ideas?

Crime policy should be about more than just scooping criminals out of society, it should be about understanding where crime comes from and blocking the hole in the bottom of the boat while preventing the boat from sinking… But most importantly, politicians should engage with the public about the real issues surrounding crime without resorting to easy, vote-winning sound bites. And journalists and especially ‘columnists’ of the Melanie Phillips variety, should know better than to fuel the non-debate on issues such as ‘rape is rape’ or ‘sick-inducing prisoners’ vote’. Shows like Question Time demonstrate that people are keen to engage on such issues and it should be a responsibility of everyone involved in the process to help inform the public about the real issues.

In the spirit of counter-intuitive arrangements and constructive comments, one of the best ideas came, uncharacteristically, from Ms Phillips. She mentioned, at the end of a long (and well drafted) tirade about rapists and heinous crimes and proper sentences, that prisons should become a part of the community, to encourage the public to take part in the criminal justice process and facilitate rehabilitation. Now how to do that would be a debate worth having…

    • Abs
    • May 23rd, 2011

    Thoughtful blog and I agree with you for the most part. But in terms of sentencing, I thought that by the ‘whole’ sentence Shami Chakrabarti was referring to the fact that most prisoners are released on license after serving half of their tariff and that she believes they should serve the whole tariff in prison. Of course, sentencing is still a difficult decision with many variables, and they definitely oversimplified this in the debate.

    In terms of the sentence discount, I think an important point was overlooked during the debate (probably because, as you say, it was more about sound biting!). The point is that the sentence discount stems from a concern for efficiency and cost saving. Creating an easier time for victims and witnesses is not a primary concern. During the debates surrounding the original sentence discount proposals from the sentencing guidelines council, everyone was careful to acknowledge that the discount was to be a kind of reward for those who pleaded guilty, and not an aggravating factor or penalty for those who do not. It is therefore concerning that Ken Clarke was so quick to refer to the punitive aspect of sentence discounts on those who do not plead guilty, as if they deserve longer sentences than would ordinarily be imposed as opposed to guilty pleaders deserving lesser sentences.

    The reason this is so concerning is that every defendant has a right to a trial and a right to be presumed innocent. The sentence discount effectively penalises defendants for exercising these fundamental rights. Furthermore, since ethnic minority defendants are more likely to plead not guilty, and since they often receive longer sentence even after taking several variables into account, they are being indirectly discriminated against through the sentence discount. So I guess my biggest concern with a 50% discount is not that less people will be in prison or serving less time (because let’s face it, prison doesn’t work!), but that those who exercise their fundamental rights are treated more harshly for doing so. Not only do politicians gloss over the real issues surrounding crime, they are also quick to neglect human rights issues in criminal justice which can affect all of us.

    I didn’t know who to shout at during this debate either! I am not a Conservative but I found myself siding with Ken Clarke on more points than anyone else, albeit for different reasons than the ones he was putting forward.

    • Thanks for your comment, I think you may be right on the efficiency and savings point, although it could be that it’s the best argument to get a reform through parliament at the moment! In any case it is one of the many considerations to take into account when doing criminal justice reform, and a valid one at that.The real meaning of the sentence discount is an interesting point, is it the accused person who pleads guilty who is ‘better’ and gets a reward or the person who doesn’t who is ‘worse’ and should be punished?

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