Crime and Punishment

Wolfe Tone

Not sure if this is the right forum or not but I was thinking about this today...


Lets take these two scenarios:

A:

A driver(lets call him John) is speeding and driving dangerously, he overtakes on a bend at high speed. A driver coming from the other direction swerves and barely avoids him. A Garda car is behind that car which John barely missed. He pulls John over and arrests him.

B:
The exact same except John doesn't miss the oncoming car and obliterates it, seriously injuring the driver. John then gets arrested.

The thing which he did wrong was the exact same in both scenarios. His misdeed, dangerously overtaking, was the same, so should he receive vastly different punishments? Is it fair to punish him more for scenario B? Should he be punished the same for both?

How can you come to a fair sentence?

(lets pretend there is no legislation etc, just you)

He's in the wrong in both scenarios.

Since he's in the wrong--assuming he's the only person in the wrong--the consequences of both scenarios are his responsibility.

So, his punishment is not only based on what he himself did wrong, but rather on the consequences of his wrong doing.

The consequences of his wrong doing are different in both scenarios, so the punishment will be different, too.

HivemindXX

It's an interesting question. The general expectation is that people are not punished as severely for potential consquences as they would be if the worst case actually happened. This leads to the (crazy in my opinion) argument that goes as follows.

People speed and overtake on blind corners on these country lanes all the time and nobody does anything. Little Johnny was just doing the same thing everyone else does and that he has done a thousand times in the past. How was he to know there would be a car coming the other way at that exact time? He was just unlucky. Why should he be punished for that?

Permabear

This post has been deleted.

beeftotheheels

In both cases John has the same mens rea and actus reus, he is driving recklessly. So we set a basic punishment for that which he is subject to in both scenarios.

But the consequences of his actions in scenario b are much more severe.

So, society in the second instance adds an additional levy for the impact on the life of another human being.

If you believe that the purpose of punishment should be solely rehabilitation then I can see the argument for treating both scenarios equally.

But I don't think we view punishment in that way, it also involves an element of retribution, and an element of protecting society by making a greater example of John when his reckless driving impacts on the life of another.

To try and determine one punishment applicable to both scenarios would surely either result in excessive punishment of the former scenario, or excessively lenient punishment in the latter scenario.

If you break the law it is not then open to you to argue that your crime would have been lesser but for some action you didn't foresee (but could have had you thought about it subject to causal chain arguments). That's a risk you carry when you break the law, so John cannot dispute his additional punishment in scenario b.

Just my thoughts.

RandolphEsq

I think a punishment should be tailored towards the consequences of the law-breaking act. That is that scenario B comes with a far harsher punishment (revocation of his licence, imprisonment, and education).

As regards scenario A;

revoke his licence for a period of time, force him to attend safe-driving seminars (this is the most important part as far as I'm concerned; education to prevent reoffending). Give him a severe warning that if he drives so recklessly again, his licence will be revoked for a much longer time.

Wolfe Tone

Permabear wrote: »

This post had been deleted.

Lets say Joe just carelessly lobbed the brick out the window, not intending to injure or hurt anyone, sure its stupid but its not malicious.

Now how should Joe be punished for scenario 1? A slap on the wrist? After all no one was hurt and there are no consequences other than a smashed brick. Or should he get a more severe punishment because it could have very easily been scenario 2 or 3? Its not desirable to have people lobbing bricks out windows so should there be a harsher sentence to act as a deterrent? If you want to increase his punishment using that logic then punishment for scenario 2 and 3 should surely be decreased as there is a significant chance that scenario 1 may have been the result?

How can you come to a happy middle ground which balances both the consequences of the action(which could be minimal or in your example death) and the possible consequences(again, which could be minimal or severe)?

I'm not saying how Joe should be punished at all, its just something I've been bandying around in my head since I started reading up on proportionality and sentencing.

I think a punishment should be tailored towards the consequences of the law-breaking act.

If you don't mind me asking, why?

You go on to say that rehabilitation is the most important thing, so why have a harsh sentence and spend all the money that jailing someone costs if you believe that all is needed to correct his behavior is revoking his licence for a while and forcing him to attend seminars? After all, the actual crime, the intention and physical act, is the same in both scenarios.

If your intention in imprisoning him is to get a form of retribution how is it fair to punish him so much more simply based on the fact that he was unlucky? If you want to 'make him pay' then should he not be punished severely in the first scenario seen as it was just pot luck he didn't crash?

Byron85

If you want to prosecute someone on the basis on what could have happened, it's a slippery slope involving existentialism and basically prosecuting someone for "pre-crime".

beeftotheheels

Wolfe Tone wrote: »

If your intention in imprisoning him is to get a form of retribution how is it fair to punish him so much more simply based on the fact that he was unlucky? If you want to 'make him pay' then should he not be punished severely in the first scenario seen as it was just pot luck he didn't crash?

Have you been reading Alan Norrie's books????

My thoughts would be that while you are right, the retributive element should be the same in both scenarios "make him pay", the more severe the consequences of the action, the less we as a society are interested in tempering those calls for retribution.

So where John avoids harming others, the punishment contains a lower element of retribution, where others are injured, the retributive element correspondingly increases.

To some extent this goes back to Hobbs' social contract, protection of the functioning of society and retribution require tougher sentences in cases where other individuals are injured in order to protect the premise of the social contract (and prevent mob rule/ individuals taking the law into their own hands).

HivemindXX

Byron85 wrote: »

If you want to prosecute someone on the basis on what could have happened, it's a slippery slope involving existentialism and basically prosecuting someone for "pre-crime".

Ok, but we already do that. We already punish people for dangerous driving or criminal negligence based on what could happen. The only reason those things are crimes is because of the potential consequences.

The question is whether the punishment for engaging in behaviour that could result in a death should be as severe as if that behaviour actually resulted in a death. I don't think there's any reasonable disagreement with the idea that potentially dangerous activity can be illegal in itself.

I guess the ultimate distillation of the concept of proportionality is the "eye for an eye" principle currently on show in Iran.

Man who blinded woman with acid sentenced to be blinded with acid.
http://www.guardian.co.uk/world/2011/may/13/iran-blind-criminal-acid

RandolphEsq

Wolfe Tone wrote: »

If you don't mind me asking, why?

You go on to say that rehabilitation is the most important thing, so why have a harsh sentence and spend all the money that jailing someone costs if you believe that all is needed to correct his behavior is revoking his licence for a while and forcing him to attend seminars? After all, the actual crime, the intention and physical act, is the same in both scenarios.

If your intention in imprisoning him is to get a form of retribution how is it fair to punish him so much more simply based on the fact that he was unlucky? If you want to 'make him pay' then should he not be punished severely in the first scenario seen as it was just pot luck he didn't crash?

Punishment does need both a retributive element (justice for the victims and the public at large, and to act as a deterrent to other would-be law-breakers for society's benefit) and a rehabilitative element (so the perpetrator learns his lesson).

The retributive element of the punishment takes into account the actual effects of his law-breaking act, whilst the rehabilitative punishment focuses on the act regardless of the real or hypothetical consequences. I believe that is a very fair method for both the law-breaker, the victims, and society as a whole.

On a separate note, our prisons are an absolute disgrace for a so-called 'civilised society'.

Wolfe Tone

beeftotheheels wrote: »

Have you been reading Alan Norrie's books????

No... Should I?

My thoughts would be that while you are right, the retributive element should be the same in both scenarios "make him pay", the more severe the consequences of the action, the less we as a society are interested in tempering those calls for retribution.

Why?

So where John avoids harming others, the punishment contains a lower element of retribution, where others are injured, the retributive element correspondingly increases.

But if there is not a need for retribution if no one gets hurt, how is it fair to get revenge like that when he was simply unlucky? How does seeking retribution for John being unlucky benefit society as a whole?

To some extent this goes back to Hobbs' social contract, protection of the functioning of society and retribution require tougher sentences in cases where other individuals are injured in order to protect the premise of the social contract (and prevent mob rule/ individuals taking the law into their own hands).

Well I wouldnt look at prison like that. Personally I feel it should be used as a tool to rehabilitate offenders or to protect society from dangerous people.

RandolphEsq wrote: »

Punishment does need both a retributive element (justice for the victims and the public at large, and to act as a deterrent to other would-be law-breakers for society's benefit) and a rehabilitative element (so the perpetrator learns his lesson).

Lets deal with my example, you say he should get his licence revoked etc. You feel that is a suitable deterrent? Seen as his behavior is the same in both surely it should be a sufficient deterrent whether or not he is unlucky enough to crash? If your proposed punishment for scenario A is sufficient to get justice for society in general then why not in scenario B?

The retributive element of the punishment takes into account the actual effects of his law-breaking act, whilst the rehabilitative punishment focuses on the act regardless of the real or hypothetical consequences. I believe that is a very fair method for both the law-breaker, the victims, and society as a whole.

Does it boil down to punishing people severely for simply being unlucky?(or indeed, barely punishing people at all because they ARE lucky?) How does society as a whole benefit from that? Its costs a huge amount to imprison people etc.


The act is the same in both scenarios, surely the means to correct, punish and to get justice for society should be the same too? Sending someone to jail, or not, depending on whether they were lucky or unlucky, doesn't sit right with me.

beeftotheheels

Wolfe Tone wrote: »

No... Should I?

If you like this sort of thing then yes, but with the caveat that his books are not going to make the reconciling of the world we would like to live in, with the world we actually live in, any easier. But from your thoughts on this thread I think you might enjoy them, Crime Reason and History is a good starter, it is aimed at being an introduction to first year criminal law but actually it would almost sit better on a jurisprudence reading list.

http://www.amazon.co.uk/Crime-Reason-History-Critical-Introduction/dp/0406932468/ref=sr_1_11?s=books&ie=UTF8&qid=1305909583&sr=1-11

Wolfe Tone wrote: »

The act is the same in both scenarios, surely the means to correct, punish and to get justice for society should be the same too? Sending someone to jail, or not, depending on whether they were lucky or unlucky, doesn't sit right with me.

See, you have me there. I agree with you in relation to prioritizing rehabilitation and protection of society above retribution but I suspect that society as a whole does not.

I would call into evidence the baying for blood every time we see an "excessively lenient" sentence, the mob mentality when arises whenever red top newspapers identify a potential "sex offender".

In order for the law to be effective it must be viewed as being sufficient to protect those rights we surrender to the State. If sentences were viewed as excessively lenient and failing to take into account the impact on the victim of crime/ society, then the risk of mob justice would increase.

So which serves John better, being given a short sentence which all of his neighbors view as excessively lenient, and then being subject to a campaign of harassment on his release, or serving a longer sentence which society views as fair, meaning that on his release he is allowed to live his life?

I know that there will always be fools out there for whom every sentence is excessively lenient but we can't account for them so we have to account for the majority. If the majority believe that the criminal justice system is working then that they are more likely to comply with it. If they believe it to be "unfair" then I would suspect that they are less likely to comply with it.

But to some extent this is me rationalizing...

beeftotheheels

One more thing and I had to think long and hard to come up with the example of a case of sentencing which riled me as a wet liberal where I felt retribution was necessary.

Ignoring the ultimately successful appeal - Lee Clegg!

This is a stark example because it involved a government employee, in their line of duty, taking the life of a teenager who was involved in breaking the law.

This case was going on while I studied in London and many of my contemporaries felt that the sentence was appropriate because the victim was, herself, breaking the law. My response was always - on what planet is teenage joyriding a capital offence?

I have an easier time rationalizing the ultimate successful appeal, than rationalizing a sentence which may have been fine in terms of rehab and protection of society, but was no where near fine in terms of retribution. It undermined the rule of law, it elevated one sector (and worse when that is a governmental employee) above another and undermined the whole rule of law.

If he's not guilty of the crime he was charged with, then he is not guilty and I can live with that. But at the stage where he was found guilty then the sentence needed to reflect the severity of the consequences of those actions in order for society to see justice.

I know it is an extreme example, but it is one that resonated with me when it came to the retributive element being necessary.

RandolphEsq

Wolfe Tone wrote: »

Lets deal with my example, you say he should get his licence revoked etc. You feel that is a suitable deterrent? Seen as his behavior is the same in both surely it should be a sufficient deterrent whether or not he is unlucky enough to crash? If your proposed punishment for scenario A is sufficient to get justice for society in general then why not in scenario B?

If other people see that they will get their licence revoked for doing the same act then it will act as a deterrent to them. This obviously helps society as less people break the law. Specifically the revocation of the licence was just an example of a punishment. The revocation makes up the deterrent aspect of the punishment (for the person who drove dangerously and for others). Education on safe driving makes up the rehabilitative aspect (for the offender), and imprisonment (or maybe something else like imprisonment) makes up the retributive aspect.

Wolfe Tone wrote: »

Does it boil down to punishing people severely for simply being unlucky?(or indeed, barely punishing people at all because they ARE lucky?) How does society as a whole benefit from that? Its costs a huge amount to imprison people etc.

The act is the same in both scenarios, surely the means to correct, punish and to get justice for society should be the same too? Sending someone to jail, or not, depending on whether they were lucky or unlucky, doesn't sit right with me.

You see, you could just have a deterrent and rehabilitative punishment, and disregard the retributive element since it is of no real benefit other than to enact gratuitous suffering on the offender. But people like to physically see justice being done. Imprisonment, corporate punishment etc. make people see that justice has been done and the offender has not gotten off lightly with no licence and a few education classes. I used to feel that retributive punishments were unnecessary and unfair, but that was only academic thought. In real life, you need to be shown to physically punish someone. The retributive element depends on the consequences of the act, so the offender might be 'unlucky' in scenario A, but look at the person who was in the other car. If you are breaking the law, there may be dire consequences. That is the risk you take when you break it.

Duffy the Vampire Slayer

This reminds me of a case in which a Garda was stabbed in Westport. The judge presiding over the resulting trial commented that the victim would have died had he not been so near a hospital (Westport and Castlebar are very close to one another and it only took a short while to get him to an emergency room). However if I were to stab someone in the area of Mayo I'm currently in and inflict the same damage, they'd certainly die before reaching a hospital. So I'd receive a greater punishment for the same action.

RandolphEsq

Duffy the Vampire Slayer wrote: »

This reminds me of a case in which a Garda was stabbed in Westport. The judge presiding over the resulting trial commented that the victim would have died had he not been so near a hospital (Westport and Castlebar are very close to one another and it only took a short while to get him to an emergency room). However if I were to stab someone in the area of Mayo I'm currently in and inflict the same damage, they'd certainly die before reaching a hospital. So I'd receive a greater retributive punishment for the same action.

I'd phrase it as such.