The long sentences passed on the offenders in the August riots should have re-opened the question of whether it can ever be right to pass deterrent sentences – but they didn’t. Deterrent sentences are substantially longer than those usually passed for the same offences and are intended to send a message to others not to commit them. The classic case was the execution of Admiral Byng in 1757 for ‘failing to do his utmost’ against the French, which led Voltaire to remark that in England they shoot admirals from time to time ‘pour encourager les autres’.
But what if the others are not encouraged? Or not many of them? In this post I ask if we have any evidence from which to determine whether deterrent punishments work at all; whether they work enough to justify the disproportionate sentences passed in the name of deterrence; and whether there can be a moral case for giving offenders more than their crimes call for in exchange for very uncertain results.
First, some legal background: Section 142 of the Criminal Justice Act 2003 requires Judges to ‘have regard’ to deterrence as one of the five principles of sentencing:
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
The Lord Chief Justice (Lord Judge) based much of the reasoning in his long and fascinating judgment in the August 2011 riot appeals (R. v Blackshaw & Others) for upholding most of the sentences, citing Section 142. He also said
It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow.
Note the elision of punishment and deterrence, and the simple, unargued imperative ‘must follow’: he takes it for granted that sentences for crimes committed in the course of public disorder ‘must’ be met with deterrent sentences. While he drew distinctions between the degrees of involvement in the disorder, the overriding need to pass severe deterrent sentences is a theme that recurs throughout the judgment. He was not impressed by defence arguments in the cases of the Warrington and Northwich Facebook non-riots: although no one actually turned up in answer to the call to riot (except the police) the offences still called for four-year sentences. It was the potential to cause disorder and the foreseeability of serious harm that counted, the fear that it engendered, and the ease of summoning rioters through social media websites was a serious cause for concern. The Lord Chief said
The [sentencing] judge was fully justified in concluding that deterrent sentences were appropriate. These offenders were caught red-handed. For the citizens of Northwich and Warrington that was just as well, because as we have explained, and the guilty pleas acknowledged, neither offender was joking when the Facebook entry was set up.
It would be hard to disagree with his view that relatively minor offences like shoplifting or receiving stolen goods became far more serious than usual when committed in the midst of widespread public disorder, and deserved greater punishment because each in its small way contributed to the spread of lawlessness and public fear. But the conceptual questions about deterrent sentences that are seldom asked, and were not in the riot appeals: how can you tell if a deterrent sentence works? And if you can’t tell, is it right to pass one?
No one knows if English admirals ‘did their utmost’ after Byng’s death because they thought they would be shot if they didn’t; or whether they did it anyway. No one knows today whether Blackshaw’s four years have stopped other Facebookers from inciting their friends to riot, or will do in future (although the odds are against Blackshaw doing it again – as they would probably have been if he’d got half the sentence.) What a judge is really saying to an offender when passing a deterrent sentence is: your offence is worth two years; but there’s too much offending like this and people are frightened of it; I have duty to do what I can to reduce crime; therefore you’re getting four years to send out a message to others.
So the offender given a deterrent sentence is being used as a penal billboard to advertise what will happen to others. Is it right to give people longer sentences that their offences really merit (if one concedes that offenders are people) as a means to an end, rather than just punishing them for what they have done? The argument has a long philosophical pedigree. A Kantian would say no, it is never right to treat people in that way, they must never be considered as instruments to achieve an end but as ends in themselves. They should be sentenced for what they have done – severely if necessary – and only for what they have done. But then few criminal lawyers are Kantians.
On the other hand, the utilitarian or consequentialist justifies deterrent sentences on the basis they increase the sum of human happiness (or at least reduce misery), even if that means using the offender instrumentally and giving him more than he deserves. It is a price worth paying. But the utilitarian has the onus of proving that it works: there’s no point in doing something does not verifiably produce the result you want. This is exactly the problem with deterrent sentences: what evidence do we have to show that they work? The problem is symptomatic of one of the larger problems associated with utilitarianism: by what calculus do you measure actions that cause present pain against the future benefits they are forecast to bring? Anyone advocating a dose of present pain surely has the onus of proving at least two things: (i) there is evidence or at least a compelling reason to believe that it will, in fact, bring future benefits; and (ii) such benefits outweigh the present pain by a wide enough margin enough to justify inflicting it.
In Admiral Byng’s day you could be hanged for many offences including theft, which was prevalent. Did hanging deter? You can argue it three ways: no, because people kept on stealing; yes, because there would have been more stealing without it; maybe it worked a bit, and there was less stealing as a result. How does anyone know? And if you lack the evidence for a firm conclusion, is there any justification? My view is that in a matter as important as taking away liberty, the case for deterrence can only be made out if there is clear evidence that large numbers of potential offenders take notice of the billboard carried by people like Blackshaw, and desist from offending. Without that evidence, deterrence is just hit and hope.
[A shorter version of this post appears in The Justice Gap – http://thejusticegap.com]