Judicial Discretion and the Managerial State Reply

Sean Gabb describes the transformation of the Left from civil libertarians to totalitarian humanists.

By Dr. Sean Gabb

Libertarian Alliance

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Any system of criminal justice worth the name needs to reconcile humanity with certainty. On the one hand, part of the function of the criminal law is deterrent. When you know that you will go to prison for six months if you smash someone’s window, you may be less inclined to pick up the stone than if you believe you may get an absolute discharge or a whipping. Another part of the system’s function is to match severity of sentencing to the perceived gravity of offences. We need to see that breaking a window is less of a crime than breaking someone’s nose, and that murder is much more of a crime than either.

On the other hand, no set of laws can take into account every set of circumstances. Should someone who steals a loaf of bread for a bet receive the same punishment as if he had stolen it to feed his hungry children? We can write in allowances for age and mental capacity. We can write in examples of mitigating circumstances. But rigid sentencing tariffs will always lead, sooner or later, to perceived injustice of punishments. Indeed, unless the system is in the hands of human robots, rigid tariffs will usually be circumvented in practice. Before the nineteenth century, English juries would often acquit rather than see a defendant sentenced to death or transportation for a crime of passion or an uncharacteristic lapse. Or judges would pass sentence, and then approach the King or his Ministers for a pardon or a commutation of punishment. Later on, the prosecuting authorities would bring lesser or greater charges, depending on how they saw a defendant.

By the twentieth century, both in Britain and America, a criminal justice system had emerged in which, murder and treason aside, offences had minimum and maximum sentences laid down in the law, and it was up to the judges to decide what sentence was appropriate within these bands. Sometimes, a judge was too harsh or too lenient. On the whole, however, the system worked. It reconciled a general hierarchy of punishments with a reasonable faith in the justice of punishment for each individual case.

In Britain, the system is now breaking down. Take these examples:

In January 2013, Chelsea Lambie and Douglas Cruikshank attached bacon to door handles and threw strips inside the Edinburgh Central Mosque in Scotland. In June 2014, Lambie was sent to prison for twelve months and Cruikshank for nine months. [Pair jailed for Edinburgh’s Central Mosque bacon attack]

In June 2014, an Islamic teacher called Suleman Maknojioa was found guilty of sexually molesting one of his eleven year-old female students. He was let off going to prison because the Judge accepted that his wife’s English was too bad for her to function in England without him to take her about. [Islamic teacher who sexually abused girl, 11, as he taught her the Koran spared jail because his wife doesn’t speak English]

I could fill a whole article – I could fill a small book – with similar instances of differential punishments that must shock any reasonable sense of right and wrong. I am not saying that the wilful desecration of a place of worship should go unpunished, or even that the case given above should have been punished exactly as if the defendants had left bacon in a church. But prison for sacrilege and a suspended sentence for sexual assault of a child – where is the justice in that?

The answer is that the criminal justice system has been politicised. It still dispenses justice, but the justice dispensed is no longer our justice. It instead reflects the sense of right and wrong of a ruling class that has no regard for the moral views of ordinary people, but is committed to a revolutionary transformation of British society. Stupidity aside, there are no mitigating circumstances for those Scottish bacon-layers, and they deserved some punishment. But their real crime appears to have been that they disobeyed the prime commandment of the modern law, which is to act and speak at all times as if we really were living in a multicultural love feast. Their actual crime was “hate,” or “intolerance.” The act of leaving bacon in a mosque was only evidence of their crime. As in Rotherham [Rotherham child sexual exploitation scandal], the sexual abuse of children may be at best a minor offence, to be lightly punished, if not systematically covered up, when committed by one of the ethnic minorities.

But the corruption is more profound than the manipulation of sentencing guidelines. During the past twenty years in Britain – and perhaps also in America – the criminal justice system has been politicised at its heart. Traditionally, a criminal court has been asked to consider two elements of guilt – wrongful act (actus reus) and wrongful intention (mens rea). For example, murder is defined as “killing with malice aforethought.” If you poison your wife to lay hands on the insurance money, you have killed her, and you have killed her deliberately. You have committed murder. If, on the other hand, you kill her by accidentally knocking her off a ladder, or letting her catch your cold that then turns to pneumonia, you may only have been negligent. You may be guilty of manslaughter or nothing at all. But you are not guilty of murder.

Beginning with the Crime and Disorder Act 1998, the British ruling class has added a further element, which is motivation. For example, if you commit grievous bodily harm against someone of your own race or religion, the maximum prison sentence is five years. If you commit this against someone of a different race or religion, and it can be shown that you were motivated by dislike of that race or religion, the maximum sentence is now seven years. There is a consistent loading of punishments for virtually every crime against life or property.

According to the Crown Prosecution Guidance Note:

[T]here are common problems that are experienced by victims of racist of religiously aggravated crime. They can feel extremely isolated or fearful of going out or even staying at home. They may become withdrawn, and suspicious of organisations or strangers. Their mental and physical health may suffer in a variety of ways. For young people in particular, the impact can be damaging to their self-esteem or identity and, without support, a form of self-hatred of their racial or religious identity may result.

This may be the case. But it can be the case with any assault, regardless of motive. The effect of the law is to make opinions into crimes. If you get into a fight with a black man, and you are charged with assault, you will be in greater trouble if the police then search your home and find copies of books by Enoch Powell, or if your browsing history shows that you read articles on VDare. Again, some part of your crime will be “hate,” and, again, the specific assault will be merely evidence of this.

A through tyranny, such as Bolshevik Russia, can get away with perverting the law in this manner. In a semi-free society, such as Britain or America, the natural result is gradually to bring the criminal law into scandal, and its officers into contempt. The main danger is probably not that differential punishments will lead to thorough tyranny. There is still the possibility of a reaction. The danger is that all law, of whatever kind, will be seen as an expression of rule by a malevolent ruling class, and that all the safeguards of life and property will be weakened. A further danger is that if, or when, the reaction comes, the idea of sentencing discretion will be so discredited that the balancing of certainty with humanity will be forgotten, and we shall find ourselves with a criminal law written in letters of blood.

Sadly, given the nature and current progress of the revolutionary transformation mentioned above, it can be doubted whether something unpleasant can be avoided.

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