Sean Gabb in The Malawi Nation


Reforming Criminal Justice:
Three Steps to a Safer Country
Sean Gabb
Published on the 19th August 2011
in The Malawi Nation

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.

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. And he has appeared on hundreds of radio and television programmes.

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7 responses to “Sean Gabb in The Malawi Nation

  1. My major concern with compensatory schemes (which are popular with anarcho-capitalists in particular, who are too obsessed with an economic solution to everything, and end up trying to redefine every crime as some kind of civil dispute) is that they punish differently depending on the economic status of the perpetrator.

    Frankly put, Boris Johnson could afford to compensate every restaurant owner in London after a rampage of starting fires in toilets and smashing windows. Such a compensatory scheme has the unfortunate side effect of making crime into an expensive hobby which some can afford and some cannot. If we attempted a compensatory scheme for violent crimes, it would have the strange effect of allowing a rich young buck to rape virtually at will, punch any passing commoner as he desired, and so on.

    I feel uneasy about this. I use the BJ example specifically to remind everyone that our current rulers, huffing and puffing and flexing their muscles about the riots, were members of a teenage gang- complete with its own “colours” and gang signs- who took pleasure in violence while intoxicated. England has a certain history of ruling class ruffians.

    So, I feel quite cautious about economic solutions, in this regard.

    On the other hand, I’d have paid quite a lot for the freedom to thoroughly slap the teenage George Osborne, with his foppy haircut and bumhole mouth, really I would. So maybe it works both ways. But then, as you probably realise, I’m very much on the Proleterian Revolutionary Wing of the Libertarian Tendency.

  2. And what about reinstating the law against double jeopardy?

  3. How about posting some comments to the Malawi newspaper? Libertarianism doesn’t get much exposure down there.

  4. I mostly agree. I am not a big fan of the idea of punishment, as I don’t really believe that adults, at least after the age of about 25 really change. There are certainly criminals that cannot be let walk free, as they are too dangerous. But I would not put them in jail to punish them, but to protect society from them.

    But the most important part of a justice system is to prevent crimes from happening. That can normally not be done by harsh punishments as criminals normally do not assume that they get caught. It can only be done by self defence. That is the most important reform we need. We need to teach people how to defend themselves and need to give them the necessary tools to do so. At the moments I see campagnes telling people not to try to defend themselves. I am quite shocked when I talk to people in this country. A lot of them don’t seem to know the difference between violence used as agression and violence used in self defence. More and more seem to believe that violence is wrong no matter what, when used by private person. Politics has created a people in which most look up to the police as their only chances to fight criminals. It is a people of victimes and that above all needs to change.

  5. Three changes in punishment that would make an enormous difference:

    Make criminals compensate victims to the last penny.

    Lock up “under-age” criminals just like their older counterparts – perhaps with more opportunities for reform or education during detention than older criminals, but the main thing is the rest of us will be safe from them while they’re locked away.

    No more concurrent sentencing – if you’re found to have commited 100 burglaries, you serve your sentences back to back. You’ve probably noticed that if you owe 100 £50 parking fines, there’s no equivalent “concurrent” punishment, and you’ll pay each and every one of them.

  6. Well, prison has 3 functions: deterrence, punishment/rehab and protection.

    In Ian B’s case, Boris Johnson would have to compensate his victims (but would not need to work in order to have enough money for this). However, “society” would decide that we don’t want a vandal like him living among us, therefore the options would be
    1) deport him to the US (he is American by birth, if you didn’t know)
    2) put him in jail

    Everyone apart from murderers deserves get a second chance, so perhaps he could go to jail for 1 year at first. If he continues to offend, then he should be locked up for longer, say 5 years. If he still hasn’t learned his lesson, then it’s life.

    Of course, he would pay for his own imprisonment, and if his funds ran out, he would need to start working from jail. If he couldn’t afford to compensate his victims, he would need to remain in jail and work until he could. So someone like Madoff would get life from the start.

    (Prospective criminals could buy insurance against being caught and the insurance might be able to pay out to the victims… or is that stretching it a bit too far?)

    This way, if someone is capable of rehab (it does work some of the time), then he will be free after his first stint in prison. So victims would be compensated, potential victims would be protected to some extent, and if the criminal is able to learn from his mistakes, he is given the chance to.