One of the effects of the riots from which England is now recovering has been to silence debate on the criminal justice system. This is a shame, as the system is plainly broken and in need of radical reform. A good criminal justice system does two things. First, it catches thieves and violent criminals, and punishes them so hard they’ll think twice about reoffending. Second, it leaves the rest of us alone. The system we have doesn’t do that. It goes after too many people whose “crimes” have no identifiable victim. At the same time, too many real criminals get away – sometimes literally – with murder. They’ve a good chance of not being caught, or not being prosecuted, or not being convicted. If they are convicted, the penalties are often absurdly lenient. The system soaks up oceans of the taxpayers’ 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. Everyone knows the system has failed. We used to make jokes about the shifty lawyers and soft judges and the courtroom antics of hardened criminals. But that was a long time ago. No one is laughing now.
The question, then, is how to make the system work. For the past fifty years, the debate has been polarised between “liberals” and “conservatives.” The first believe that criminals are basically good people who need to be helped out of bad ways. The second just want a police state. Both have had their way and given us the system we have. We live in a country where rapists get a slap on the wrist because they’ve found God or had a sex change – and where the rest of us are justly frightened of the police. 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 so-called crime that doesn’t have an identifiable victim. This means relegalising drugs for adults, and respecting freedom of speech and association. It also means ignoring acts that may be preparations for crime, but are not in themselves attacks on life and property. It isn’t the business of the law 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 actual 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. 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.
Now, 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. After that, you’re set free. 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. If it works, it will give us a freer country and a safer country. It might also cost less money.
The Israeli politician Abba Eban once observed that, when everything else has failed, people often try the right thing. Well, the criminal justice system we have doesn’t work. We really do need to think about trying something else.
The question, then, is how to make the system work. For the past fifty years, the debate has been polarised between “liberals” and “conservatives.” The first believe that criminals are basically good people who need to be helped out of bad ways. The second just want a police state. Both have had their way and given us the system we have. We live in a country where rapists get a slap on the wrist because they’ve found God or had a sex change – and where the rest of us are justly frightened of the police. 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 so-called crime that doesn’t have an identifiable victim. This means relegalising drugs for adults, and respecting freedom of speech and association. It also means ignoring acts that may be preparations for crime, but are not in themselves attacks on life and property. It isn’t the business of the law 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 actual 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. 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.
Now, 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. After that, you’re set free. 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. If it works, it will give us a freer country and a safer country. It might also cost less money.
The Israeli politician Abba Eban once observed that, when everything else has failed, people often try the right thing. Well, the criminal justice system we have doesn’t work. We really do need to think about trying something else.
Dr Sean Gabb is Director of the Libertarian Alliance. He is also a novelist whose works have been translated into Spanish, Italian, Greek, Hungarian, Slovak and Chinese.
