THE big test of a criminal justice system is how well it catches and punishes the guilty, while leaving everyone else alone. Our system fails.
Oh, some of last month’s looters got caught, and a few may now be getting their just deserts. Big deal. Authorities who can’t put down a riot are, by definition, no longer the authorities. Speaking generally, the police and courts in this country fail their big test.
Most non-violent thieves don’t get caught. If caught, they might be prosecuted. They might be convicted. They might get a punishment that’s more than a slap on the wrist. It’s all a question of might. Too often, it’s will not. The system soaks up oceans of the taxpayer’s money.
It employs armies of lawyers and probation officers and social workers. And, looking at reoffending rates, it doesn’t punish. It doesn’t deter. It doesn’t reform bad character.
Equally bad, the system goes after people whose acts shouldn’t be seen as criminal – indeed, whose acts were often not criminal until our own time.
Catch a thief and break his nose, and it’s you who get arrested. Smoke the wrong kind of cigarette, and get arrested. Smoke a normal cigarette in most “public” places, and get fined. Speak unkindly of someone whose face is a different colour, or whose God has a different name, and risk up to seven years inside. Turning back to the riots, suggest a criminal act on Facebook, and get four years inside – eight times more, that is, than most are getting for the actual crimes.
This is the system we have, and it emerged over 50 years from a debate between “liberals” and “conservatives” that both have won.
The first believe that criminals – unless guilty of “hate” – are basically good people who need help. The second just want a police state. Welcome to modern Britain!
We live in a country where the only people not scared of the police are those who should be. If we want a criminal justice system that works, we need to get out of this useless debate and go “back to basics.” We need a system that focuses the power of the State like a burning glass focuses the rays of the sun. It needs to put down crime and leave the rest of us to get on with our lives.
What I propose has three elements. First, we need to abolish every “crime” that doesn’t have an identifiable victim. It isn’t the law’s business if people smoke dope, or speak ill of minorities or refuse to do business with them, or if people keep guns at home, or collect books about bomb-making, or if they bribe foreign politicians, or even get involved in plots to kill them. Enforcing these laws leads straight to a police state and soaks up oceans of our money that could and should be spent on catching thieves and violent criminals.
Second, we need to go back to all those old common law rules that used to protect the innocent. We need the right to silence, and peremptory challenge of jurors – we need to stop the drift away from trial by jury. We need the rule against hearsay evidence, and the full presumption of innocence, and the rule against double jeopardy. Cutting down on these protections doesn’t make it easier to punish the guilty. It just enables more miscarriages of justice.
Third, we need to make sure that those found guilty of the remaining crimes are effectively punished. The idea that prison can reform bad character is stupid. People are what they are. If they go wrong, they should be punished in ways that the rest of us think just, and that scare them from reoffending. This may mean having a proper look at whether prison actually works. Until the 1820s, prisons were mostly places where people were detained pending trial. Punishment was usually death or flogging or transportation or a fine. Perhaps these punishments were often too harsh. But does penal servitude always do a better job? I don’t think so.
One alternative is a greater reliance on compensating victims. For example, you’ve burgled me. Well, you’ve cost me £3,000 for lost property, plus £5,000 for the fear and anxiety of a violated home. So you pay me £8,000. If you don’t have the money, you’re set to work on digging the roads or stitching mailbags until you’ve earned it. If you knocked me on the head when I found you in my home, you pay much more – and get a sound beating as well. If a sore back and tired hands don’t mend your ways – and note, it’s ways to be mended, not character – you get it all over again.
Yes, we still do need prisons. By their nature, murderers can’t compensate their victims. But the general idea is to provide real punishments for real crimes. It might cost less money. It might even give rioters something to think about. I doubt the present system does that.
Dr Sean Gabb is director of the Libertarian Alliance.