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Media information: embargo 00.01am Monday 27 June 2005

Why Punishment Is No Crime

Britain's criminal justice system has gone soft, according to leading American sociologist Charles Murray, whose new book Simple Justice is published today by independent think-tank Civitas. Murray claims the criminal justice system no longer dispenses justice, or even seeks to.

For Murray, the essential element of any criminal justice system is retribution:

The primal function of a system of justice is to depersonalise revenge … the individual will take his complaint to the community. In return the community will exact the appropriate retribution - partly on behalf of the wronged individual, but also to express the community's moral values (p.18-19).

There are two component parts of retributive justice:

  • The necessary and sufficient justification for punishing criminals is that they did something for which they deserve punishment
  • Society not only has the right but the duty to punish culpable offenders.

'That's it. Nothing about rehabilitation, remorse, or socio-economic disadvantage. Nothing about the bad effects the punishment might have on the offender or, for that matter, its good effects. The purpose of the sentence is punishment. When the system has failed to punish culpable offenders, it has failed, full stop. It is unjust' (pp.20-21).

The elite responsible for the workings of the British criminal justice system today no longer make retributive justice a priority. Instead, argues Murray, they have become more preoccupied with containing the costs of dealing with criminals, by encouraging or requiring judges to impose cheaper alternative sentences to imprisonment, such as community service. They also seek to contain costs by encouraging or demanding the ever earlier release of prisoners serving prison sentences.

How the Scales of Justice Have Been Tilted in Favour of Criminals

Murray criticises the ever greater readiness of the authorities in recent times to prosecute and imprison all who resort to using force, beyond the barest minimum needed in their immediate self-defence, against those who assault or seek to rob them, or are just a persistent nuisance. He also points out that that convictions have been made harder to secure than they would otherwise be through courts refusing to allow as admissible evidence, previous convictions for and accusations of similar offences.

Citizens and Outlaws

All in all, argues Murray, all too many respectable law-abiding citizens in Britain today have of late been forced to live in fear through being given inadequate protection from a comparatively small number of habitual offenders, whom Murray calls "Outlaws". These have been allowed to roam free and to get away, if not exactly with murder or scot-free, then at least without having to suffer their just deserts. Murray argues that these two groups should not be treated as equal before the law, and that outlaws - certainly in the commission of the outlawry - have forfeited their claim to have their rights respected:

'The everyday world contains millions of decent, law-abiding people … different in kind from the much smaller number of people whom I label Outlaws.… Perhaps, Citizens pad their expense accounts, but they never come close to killing, wounding, robbing, burgling, or raping -the elemental predatory acts…. The person who does kill, wound, rob, burgle, or rape has stepped over a line and become an Outlaw. While he is in a state of Outlawry, he has lost many rights that Citizens enjoy.' (22)

Home Office Accused of Suppressing Embarrassing Research

As well as Murray's essay, Simple Justice contains a set of comments from a range of distinguished scholars and experts in penal policy, writing from a range of different perspectives. Murray's essay receives most sympathy from the comment by Christie Davies, Emeritus Professor of Sociology at the University of Reading. Davies goes so far as to suggest Murray's category of "Outlaw" be formally incorporated into law through those whose criminal records would place them in it enjoying fewer civil rights and legal protections than law-abiding Citizens, even upon completing their sentences.

Professor Davies also agrees Britain's criminal justice elite has gone soft. He reserves especial opprobrium for the Home Office whom he accuses of routinely suppressing politically sensitive or embarrassing data. One example of Home Office research he claims has been deliberately suppressed is the disproportionately large number of racial attacks on Asian shopkeepers carried out by those of West Indian extraction (pp.52-3).

Society Should Excuse Retaliation by Citizens Without Condoning It

Other commentators have less sympathy with Murray than Davies. Tom Sorell, Professor of Philosophy at the University of Essex, agrees that habitual offenders should be made to serve their full prison terms, no matter the financial costs, and also that, upon completing them, persistent offenders merit closer surveillance than citizens.

Sorell disagrees that victims of assault and burglary, and their attempt, should be able in law to use more force than the barest minimum in their self-defence. He admits courts might want to excuse those who retaliate with such force against assailants, but argues that, for victims to be allowed to use more than the barest minimum necessary in self-defence, would undermine the impartiality and impersonality with which justice must always be administered to ensure all receive their just deserts.

The Need to Protect the Innocent from Wrongful Conviction

John Cottingham, Professor of Philosophy at Reading University, accepts Murray's call for retributive justice to be the central aim of the criminal justice system. But he argues some measures Murray proposes to make it easier to secure convictions would subvert retributive justice by making it too easy to for the innocent to be wrongfully convicted for crimes they have not committed. It is to prevent such miscarriages of justice, he argues, criminal suspects enjoy legal protections Murray would remove.

Alternatives to Prison

The progressive alternatives to prison, against which Murray inveighs, receive vigorous defence in the comments by Baroness Vivien Stern, former director of NACRO, and by Rob Allen, former director of Rethinking Crime and Punishment, an initiative to increase public support for them. Stern and Allen claim non-custodial sentences are more appropriate than imprisonment in cases where offences have arisen as a result of those who have committed them suffering from psychological disorders they have acquired as a result of being childhood abuse or drug addiction. Such offenders need help, not punishment, they claim.

Even when offenders are fully responsible for their criminal actions, claim Stern and Allen, non-custodial can often be more appropriate than prison, since they provide offenders better opportunity to make reparation to their victims.

Simple Justice by Charles Murray, with commentaries by David Conway (editor), Rob Allen, John Cottingham, Christie Davies, J.C.Lester, Tom Sorell, and Vivien Stern, is published by Civitas at 77 Great Peter Street, London SW1P 2EZ.
Tel 020 7799 6677 at £9.00m inc. pp. ISBN 1 903 386 44-6

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