It is not surprising that those at opposite poles of the ideological spectrum generally view public policy issues—and proposed solutions—differently. What is surprising is when conservatives adopt the rhetoric of the Left (along with the accompanying narratives, memes, and canards) regarding a subject as important as criminal justice.
Before he turned murderously religious, one of the Belgian bombers had been a bank robber. He fired a Kalashnikov at the police when they interrupted him in an attempted robbery, for which crime, or combination of crimes, he received a sentence of nine years’ imprisonment. Of those nine years he served only four, being conditionally discharged. The principal condition was that he had to attend a probation office once a month: about as much use, one might have supposed, as an igloo in the tropics.
In the prison in which I used to work as a doctor, I would ask prisoners in confidence who were held pending trial whether they intended to plead guilty or not guilty.
“It depends,” they replied.
“On whether or not you did it?”
“On what my counsel says.”
It might be best to set forth some of the core issues concerning legal punishment before discussing the most important elements of Michael Louis Corrado’s Presumed Dangerous: Punishment, Responsibility, and Preventive Detention in American Jurisprudence. Criminal justice in the United States is problematic in so many significant respects today that reform can seem almost beyond reach. Given the complexity and the interconnectedness of many of the issues, it is even difficult to know how to set priorities. The issues include over-criminalization and the piling-on of multiple charges, an issue related to dubious plea-bargains arising and dubious exercises of prosecutorial discretion. There…
Murder is a subject of perpetual interest, as the history of bestselling fiction amply demonstrates. Having met more than my fair share of murderers in the course of my professional life, I find it fascinating. There are genres of murder as there are of painting. Because I am a doctor, the murders committed by doctors and nurses get my attention, all the more so since one of my close friends is a great expert on the pharmacological aspects of such crimes.
Murder by healthcare staff is one of the few genres of murder in which poison remains the weapon of choice. When, therefore, I happened by chance on a book that promised to explain to me why the doctors and nurses in question killed, I bought it. Disappointingly, by the end of the book I was none the wiser. However, I was not too disappointed; in my heart of hearts I had never really expected enlightenment. Understanding murderers is a tall order, as opposed to describing, as this book did, some murderers’ acts and personal backgrounds.
But the book did fill me in on—and alarm me about—the state of plea-bargaining in the criminal justice system in the United States and, to a lesser extent, Britain.
The European Court of Human Rights in Strasbourg has granted, by 16 votes to one, an appeal by three men in England who have been sentenced to life imprisonment without the possibility of release. These sentences, the men claimed, breached their human rights according Article 3 of the European Convention on Human Rights, which forbids ‘inhuman and degrading treatment.’ The court agreed.
In its ruling the court said, inter alia:
If such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence.
The court added that prisoners must have their sentences reviewed, with regard to release, after 25 years at the latest, and regularly thereafter.
At first sight, this ruling might seem compassionate; the judges clearly feel, or claim to feel, for the convicted men. But actually the sentimentality of the judgment is but the reverse side of its implicit brutality, as well as being an invitation to legal arbitrariness.
In the year of my birth, which now seems to me a very long time ago, C. S. Lewis wrote a short and incisive essay entitled The Humanitarian Theory of Punishment (link is no longer available). In this essay, Lewis drew attention to the potential for tyranny of this seemingly humane theory, according to which people were to be treated not according to their deserts, but according to what would make them ‘better’ on whatever scale of goodness was adopted by the therapists, who of course would also decide whether or not the wrongdoers were ‘cured.’
The horrors that Lewis foresaw as following from the humanitarian theory of punishment were those of cruelty and oppression disguised as benevolence.