Why Don't Our Judges Believe in Punishment?

By Phillips, Melanie | Daily Mail (London), May 15, 2003 | Go to article overview

Why Don't Our Judges Believe in Punishment?


Phillips, Melanie, Daily Mail (London)


Byline: MELANIE PHILLIPS

BOYS, boys! The war of attrition between the Home Secretary and the judges has descended to hand-to-hand fighting. A retired judge, Sir Oliver Popplewell, yesterday launched a devastating broadside against David Blunkett for undermining judges' independence, producing incompetent legislation and being a hypocritical 'whiner'.

His attack reflects the judges' fury at Mr Blunkett's attempt to fetter their discretion in sentencing convicted murderers.

Infuriated by the Law Lords' removal of his power to decide how long a murderer should spend behind bars, Mr Blunkett last week laid down stiff minimum sentences for murder to be passed by Parliament.

Now, enraged by Sir Oliver's jibe at 'populism', Mr Blunkett has hit back with a diatribe about judges who don't live in the real world - and he threw in an attack on the chairman of the Bar Council for good measure.

This unseemly spat is the latest bizarre fallout of the Government's failure to get on top of serious crime.

Ostensibly, this is a row about who should decide the appropriate penalty for murder. The Home Secretary says that ultimately it should be the people, embodied in himself as an elected member of the Government. The judges say this would replace justice with a form of lynch law.

But there is a deeper tension here, which neither the grandstanding of politicians nor the defensive tactics of the judges can resolve. For the fundamental problem is the way our culture looks at the concept of punishment itself.

Most people think criminals get really punished only if they are sent to prison. And they believe punishment is essential.

But across the spectrum of the criminal justice establishment, among probation officers, police, lawyers and the judiciary, the concept of punishment has become a virtual taboo.

It is regarded as primitive, atavistic, an uneducated desire for vengeance, a throwback to an uncivilised age. People who want to see criminals locked up because they want them punished are viewed as rednecks to be contemptuously ignored.

But punishment is an intrinsic part of justice. Without it, wrongs cannot be righted. Justice requires retribution: that the criminal who has inflicted pain, suffering and loss should be made to experience something approaching an equivalent pain, suffering and loss.

Anyone who has observed the part played by retribution in children's universal passion for fairness understands that this concept of justice is hardwired into us. Anyone who has ever disciplined a child knows that the direct relation of punishment to an offence is essential in the formation of a selfdisciplined, orderly adult.

So how can people whose lives are devoted to administering justice regard punishment as beyond the pale?

The answer is that our age is governed by utilitarian principles, which hold that things have value only if they actively produce demonstrable and quantifiable improvements.

So prison is justified only if it reforms criminals or deters people from committing crime. (The fact that it protects the rest of society from criminals for the duration of their incarceration is perversely considered irrelevant, since prison achieves this by default).

All the emphasis instead is on treatment of offenders, in the belief that this is supposed to change people for the better. The fact that it doesn't significantly prevent re-offending or act as a deterrent is brushed aside; anything is considered better than punishment for its own sake.

This is because, with all actions judged by their consequences, there is no recognition of absolute moral principles that are valuable in themselves.

So the principle of just deserts - which most people accept as only fair - is regarded as a biblical anachronism. …

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