The Crime of Punishment

    Re‑reading what I wrote those years ago in Papers 31 [“The McNaughton Rules and Modern Concept of Responsability”] and 32 [“The Judicial Process and the Ascertainment of Fact”], I find little I wish to withdraw, or even change very much, though I am sorry not to have put the argument against "free will" more cogently. My feeling now is to go further. Having just finished reading Karl Menninger's (1966) splendid crusading work The Crime of Punishment, I am tempted to formulate my own ideas.

     The most serious of the very many problems we face seems to me to be the heavy and increasing toll taken by the highly intelligent and skilfully organised professional criminals. Perhaps this is only ten percent or so of the total wastage caused by crime, but it is these men who, by defying the social order, constitute its most dangerous threat. It is the success and the immunity of these criminals that erode our values. Why is it that such crime flourishes? Surely, in part at least, as Menninger points out, because we refuse to take it seriously. The professional crimi­nal is at all stages treated as if he were a member of our society and a member in good standing, when in fact he has opted out, at least for the time being, and is its determined and ruthless enemy. How can we deal with the challenge he offers, and still maintain decent standards of behaviour? If our efforts to cope with him are ineffective, are they any more successful with the amateur and the occasional of­fender? Are the principles we use to guide us conceived on the right lines? I would submit that they are not, and in their place offer what follows, drawn up in an order of precedence, so that later clauses operate only in the conditions defined in the earlier ones:

     I. At all stages and at all times suspects and offenders, even the worst, must be treated with decency and humanity.

     II. We recognise that all processes of ascertainment of fact are liable to error. The conclusion that the person X did the criminal act A is to be based not on an attempted certainty, but on a substantial balance of probabilities. Not infrequently it will prove to be an incorrect conclusion, and then the processes by which the official decision is reversed and amends are made is to run smoothly and efficiently.

     III. We recognise that in penology the "justice" of an award cannot be defined and cannot be validated. In taking administrative action on the finding that X did A, the first and over‑riding consideration is to be the safety of the community. From II it follows that nothing is to be done to the individual against his consent which cannot be subsequently reversed or adequately recompensed.

     IV. Before such administrative action is taken, offenders are to be classified according to guidelines derived from our knowledge of psychiatry. Persons of good character and normal personality are to be dealt with by standard processes (rebuke, penalty, punishment, probation, etc.), with broad adherence to a "tariff" system. It is recognised that punishment will not be required, or be deserved, or be the effec­tive method of treatment, in a substantial minority of offenders, e.g.:

         a. those of good character whose social controls have broken down under exceptional or massive stresses;

         b. the psychiatrically ill, the psychotic, the neurotic, the psychopathic, who will need treatment along psychiatric lines, either while they continue to live in the community under safeguards, or while living in adequately equipped enclaves;

         c. the professional criminal, whose way of life is to prey upon the commu­nity. He is to be recognised as an enemy of society and being in effect the national of a foreign hostile state. Now that he has been taken prisoner of war, he is not to be allowed back into the community until his antisocial allegiance has ended.

    V. Since deterrence rests much more on the probability of detection and punishment than on its severity, all processes should be favoured which lead to the conviction of offenders, while at the same time their punishments are made milder. In the processes involved in detection and conviction, the police are the first line of defence against crime. They must be given the public recognition and the esteem which their work deserves. They should be an elite force, no less so than the armed forces of national defence, with the highest standards of conduct and esprit dc corps, well rewarded and honoured. Their position as guardians of public safety should get for them the friendly cooperation of all good citizens. Consonant with their standing and their standards, they should be freed from much of the present bureaucratic and legalistic controls on how they go about to apprehend the criminal; but lapses from high professional standards of conduct should be strictly dealt with.

     VI. The adversary system in trials is to be abandoned, and an inquisitorial, or investigatory process substituted. The aim of the hearings will be to find out what happened and why. The past record and personality of an accused, being highly relevant information, are to be available from the start. Other rules of evidence are to be modernised and made efficient.

     VII. The processes gone through to conclude that X did A are to be held distinct from those gone through to decide the appropriate administrative action, and both processes are to involve a different set of agents of decision. Both organisa­tions are to be backed by efficient research services, criminological, penological, sociological, psychological, psychiatric, medical, etc.