Why Harsh Sentencing Won’t Work

Why harsh sentencing won’t solve the problems uncovered by recent rioting across the county.

Inevitably, sentencing has recently hit the headlines. Even people who weren’t directly affected by the riots felt for those around them. As expected, there was a surge of people calling for the “hang ‘em, flog ‘em” approach – the stick over the carrot. It was all over Facebook and Twitter, then in newspaper opinion columns, and now (finally) the Prime Minister has waded in. Yougov reported that 53% would support the death penalty for the murder of a police officer and 65% would support it for multiple murders.

The right tells us these riots were caused by a lack of values and a lack of a stick that’s heavy enough. Values are great, but we’ve never relied on values alone. Rather, the problem lies within some people feeling they lack a stake in society worth holding on to; a carrot that’s sweet enough.

Let’s look at the problem from our point of view.

You’re at Cambridge. The economic situation aside, you think you’re probably going somewhere. Some of you aspire to be the Prime Minister or the CEO of a big multinational. Some of you aim to be the next Friedrich Hayek or Rosa Luxembourg, and many of you undoubtedly aspire to be lawyers, doctors, or teachers. And even if you don’t, you probably think: what the hell – it’ll all turn out okay, I’ll have a decent degree under my belt.

Now imagine you’re facing criminal charges. Suddenly your degree is in doubt. The flights you bought for that holiday will be wasted. Your work experience at the United States Congress isn’t going to happen. You’re going to miss graduating with all your friends. Your intimate college community will be replaced by a cell with hardened criminals who aren’t going to be quite so impressed by your 3 A*s. You have a criminal record.

The now iconic image from the riots

To you, the idea of risking your future for a night of smashing things and looting is ludicrous. Even if you don’t care about other people, even if you are entirely self-interested, rioting makes no sense. This is not snobbery. I’m saying that our situation – even when you remove a value system to which many of us subscribe – makes it impossible to comprehend the riots, let alone consider rioting ourselves. Most importantly, that would be the case whether the sentence for looting was ten hours community service, or ten years in prison. So, at least for us, we have an effective deterrent in place.

But, to some people rioting did make sense.

If you’re willing to risk going to prison for the sake of partaking in these riots, you can’t have that much to lose. And if you’ve got nothing to lose, of course your attitude would be: “why not?”. And it is this attitude we have to bear in mind when looking at sentencing. If you’ve got nothing to live for on the outside, then however long the sentence is, it won’t be an effective deterrent. Along with deterrence, we also want sentencing to protect the public and to rehabilitate offenders. Retribution might feel good, but it doesn’t achieve anything.

Tougher sentences won’t aid rehabilitation either. Figures from the Ministry of Justice for 2008 state that among every 100 previous juvenile offenders (10-17 year olds), there are 113.9 offences committed.

Of course, in certain cases, we need lengthy sentences to protect citizens. There are a tiny number of psychopaths who are so mentally ill that they cannot be deterred or rehabilitated and so, unfortunately, our only choice is to lock them up for the greater good. But, this isn’t the case with rioters. We can’t expect the problem to go away by locking up more and more kids. Regardless of whether you agree that the problem is societal, it is undoubtedly systemic.

Tougher sentencing won’t work. Either as a deterrent, protective measure or as rehabilitation, it’s just pointless retribution. We can build a criminal justice system that instills values, and we should. Personal apologies and making up for crimes by cleaning up the mess they make is more likely to rehabilitate and instill values than lengthy sentences surrounded by hardened criminals. And it costs less. But values alone can’t be relied upon – there was crime back in the good, old days too.

We need to give these young people a lifestyle that’s worth aspiring to and holding onto.

  • Dominus Muscarum

    One error this article makes is that most of the people who took part in the riots and looting did so precisely because they thought the risks of going to prison were negligible. They saw 'everyone else' doing it, they saw the police failing to take real action to protect property, and they assumed that they would never get caught. They were not 'willing to go to prison' – a phrase that presents them as some kind of martyrs – they gambled that they would not.

    Now, the reason why some form of tough sentence is necessary – and by that, I would include long periods of community service as well as custodial sentences – is that if people cease to believe that they will face a substantial punishment for taking part in mob violence, one major reason why people generally avoid rioting will go away. I am not saying that everyone will riot – some people are sufficiently moral to know that it is wrong regardless of the threat of punishment. But some will.

    That is the other key error this article makes. The point of deterrence is not whether the person in the dock was deterred, because ipso facto, if you're sentencing him or her, he or she was not. The point is to prevent offending across the entire community, and thereby to preserve public order. You would not say that a murderer who only kills once deserves to walk free even if you could say with 100% certainty that it would never happen again.

    I reiterate that sufficient sentences need not be custodial – several hundred hours of unpaid community service would be enough for those who do not pose an imminent threat to the public, and would furthermore serve the goal of restitution. I also emphasise that I believe that many, and hopefully most, people will behave properly even in the absence of coercion. But for a small minority – but enough to cause serious harm to others – real deterrence is required, and that means that those caught and prosecuted must be properly punished. That gives the next group of would-be rioters something to consider.

    • A further reasoning error made by the author is that explanation constitutes mitigation. Understanding the causal basis for an individual's behaviour does not mitigate their personal responsibility for their actions.

      Though it is, of course, important to investigate the social and political causes underlying the riots, we must be careful not to allow this understanding to detract from the criminality of the actions. The need to prevent this destructive behaviour in future is certainly enough to justify harsh sentencing: the riots took place in a culture of no responsibility; where infraction is not connected to reaction. Re-establishing this understanding will go some way to ensuring our communities are safer from future mob violence.

    • Criminology dude.

      You have made several fundamental errors:

      1) Leading empirical studies show that it isn't the severity of the punishment which serves as a deterrent; it's the likelihood of being caught. Your average rioter acting impulsively isn't going to have a comprehensive knowledge of the English penal system. They will, however, have a grassroot 'street' knowledge of the effectiveness of the police force. The likelihood of getting caught has proven to be highly influential in determining whether a potential rioter decides to put his thoughts into action.

      2) Locking prisoners up for lengthy periods has never proven to 'prevent offending across the entire community'. Something like 97% of all crimes do not result in an ultimate conviction, meaning that most offenders remain at large – prisons hardly protect the community.

      Disproportionate sentencing has been a favourite amongst politicians as propaganda material, as it seems to win the support of the masses. You only have to read tabloids such as the Daily Mail to get an insight into how the media has influenced the population in this regard. In fact, it was one of the main reasons Blair came into power (ie getting 'tough on crime').
      However, considerable amounts of evidence from research shows that it's costly, inefficient and ineffective. Rehabilitation on the other hand, despite harbouring many difficulties, provides a considerably more constructive direction for the criminal justice system.

      • Dominus Muscarum

        1. If people know that even being caught means only a slap on the wrist, being caught is no longer a deterrent. That is why, when there is high profile criminality, there needs to be a reasonably severe punishment (which, as I said, is not limited to custodial).

        2. I specifically stated that custodial sentences are only appropriate for individuals who pose an ongoing threat to the community (which is, it is implied, to be judged given what is known about them at sentencing). I do not claim that offending across the entire community will be eradicated by punishment; rather that the general level will be lowered because the incentives are less advantageous to criminals.

        Taking the 97% figure (whose methodology I doubt, and in any case seems a horrific generalisation), a 3% chance of 500 hours of community service/a few months in gaol sounds a lot worse than a 3% chance of 100 hours of community service/a couple of weeks in gaol. In the aggregate, criminals are affected by incentives. Letting high-profile criminals – rioters – walk free after a negligible sentence sends precisely the wrong message.

        3. I am obviously not in favour of disproportionate sentencing, although my calculus of proportionality probably differs from yours. To the extent that one can generalise, rehabilitation is a goal of punishment but not the only one. Restitution and, in certain cases, protecting society are probably the most important. Deterrence to society at large becomes an issue when a punishment is so negligible that the rewards of the crime outweigh the risk of punishment.

        For crimes with victims (e.g., not drugs possession), I do not think that rehabilitation *ever* justifies reducing a restitutionary or protective portion of a sentence; in fact, contrary to the way it was understood in the 70s, it frequently justifies extending a sentence – not necessarily in custody, but by conditioning release on finding gainful employment.

        To use a concrete example, a looter during the riots is convicted. For this particular looter, the risk of reoffending is actually low – it was a crime of opportunity, and capture alone taught the looter her lesson. Thus, there is no need for rehabilitation or public protection. Nevertheless, punishment is justified: she stole, and thus must make good what was taken to the owner (personal restitution); her actions contributed to fear and insecurity across the area (societal restitution); and a failure to punish her would lead others to conclude that rioting and looting carries negligible risk (societal deterrence). Therefore at a minimum she should be made to repay the owner, and repay her debt to society (probably by community service, which, given the fear caused by the riots, should be quite long). If these two combined do not cause sufficient deterrence, which if quite likely here, the sentence gets increased (which may in this case require a custodial sentence or some other very unpleasant sentence given the high-profile nature of the riots and the massive harm that could result if there are more riots).

        By contrast, the next defendant has been convicted of two forcible rapes. He is a continuing threat to the community (as his already repeat offending demonstrates), and rehabilitation of rapists is almost impossible, certainly when we exclude unreasonable mistaken consent. He has also caused very significant harm, both to his victims and to women in general. He should therefore not be released until he is safe (protection), if ever, and at a minimum should serve a long prison term during which he should be compelled to work to compensate his victims (restitution – the mere fact of his imprisonment also serves this goal because it helps the victims' psychological recovery). The minimum deterrence level has already been reached because the sentence is already significant and most rapists have psychiatric problems which make them less likely to respond to incentives, so no further uptick is necessary.

        Incidentally, a rioter who used or threatened any violence against the person or an arsonist (who was reckless to the risk of harm to human life) almost certainly requires a significant custodial sentence because of protection, restitution (the mere fact of their imprisonment helps restore a feeling of security), deterrence (riots are dangerous and must be disincentivised).

        Overall, some of the sentences against non-violent looters were a bit harsh, and went beyond the requirements of deterrence. But any rioter who used violence against the person should be facing a multi-year custodial sentence.

        • Mathmo

          I want to see the differential equations before I accept your calculus…

  • gud

    Good piece, well written.

  • Lol wut

    this piece fails to explain (perhaps excuse?) why some people lack any sense of what is MORALLY correct.

    Putting aside the simple calculation "will the risk of going to jail be negligible?", you do not have to have the opportunities we will have as Cambridge graduates to understand what is, and more importantly, what is not the right thing to do…

    thus, harsh sentencing is correct as a means of reinforcing simple moral values that all of society holds.

    • Cohen the barbarian

      They clearly knew that what they were doing was wrong. They didn't go home and tell their grannies, they wore face masks and they scarpered when the police arrived in force.

      I agree it's an issue that they didn't care, and that the incentives system was screwed up. But do I think we've got a more immoral (or amoral) generation on our hands? Well, that's also what they thought in the 50s, the 60s etc. etc. Read Folk Devils and Moral Panics and stop your errant capitalisation.

      • Moral Minority

        They were right in the 50s – look at the 60s generation, who more than ever before rejected traditional morality. Fortunately for them, the 60s generation mostly lived during the times before the welfare state collapsed under the weight of its own inefficiencies, and therefore were more likely to avoid having nothing better to do.

        Now we have a situation where we have realised that excessive government spending can only go on for so long, but have too many fetters on the economy (many of which are the fault of governments) to allow the private sector to fill the gap (as it did in the 1920s). We therefore have youths the product of two generations of anomie with nothing better to do. It's the perfect storm, and I think we're going to have to find some kind of universal norms pretty soon, and the question is whether it happens gradually or whether we have a painful adjustment.

  • Really

    This article should have been called “Why Harsh Sentencing is Duller Than You Thought”

  • anon

    1) Saying some rioters should be sent to prison is not the same as calling for them to be put to death so why use the statistics for the death penalty?

    2) A lot of the rioters knew they weren't "risking prison". Firstly, only a minority would ever be caught. If it's your first offence then you probably won't go and if you're under 18, as a lot of them were, then you'd know hardly anything is going to happen.

    3) It's funny how you think a few days cleaning pavements or whatever will "instill values". That's not going to undo years of shit parenting.

    4) I don't get why you end by saying "there was crime back in the good, old days too". It's true of course but do you mean we should just accept it?

    5) "The right tells us these riots were caused by a lack of values and a lack of a stick that’s heavy enough. Values are great, but we’ve never relied on values alone"
    Then later on: "We can build a criminal justice system that instills values, and we should. "
    So are values the problem or not?

  • Mr Cutts

    All this may be true, but Charlie Cadywood definitely needs a haircut.