Via Tom Watson, I discover that yesterday the ordinarily quite sensible Chairman of the Home Affairs Committee, John Denham, appears to have suffered a mental aberration of sorts and suggested in the House that offenders undertaking community service should wear uniforms and that unemployed offenders should receive longer sentences than those in employment.
Convicted offenders who are unemployed should be given longer community sentences, according to the chairman of the influential home affairs committee.
John Denham claimed offenders who had a job or cared for family members should receive shorter sentences.
This would be fairer because "the impact is clearly much heavier on someone who is already busy than someone who isn’t", he said.
The Home Secretary has said he needs solutions to overcrowding in jails.
Mr Denham, a former Home Office minister, claimed his suggestion would build confidence in community sentences – an important part of reducing overcrowding in prisons.
"If someone has more time on their hands, perhaps if they are unemployed, but not necessarily, the length of their sentence should be longer," he told the BBC.
He said punishments should have a "broadly equal impact on people".
"Giving different offenders the same length of community sentence is superficially equal, but in reality, it isn’t."
As an example, he said a worker would find a community sentence of 100 hours "really tough [because] that’s going to take a lot of your free time over the next few months".
An unemployed person would not find 100 hours so disruptive, however, he added.
And the principle of giving offenders different sentences was already accepted as higher earners could already be subject to bigger fines than lower earners, he claimed.
Mr Denham also suggested that offenders should wear uniforms while carrying out their community sentences, and that there should be greater use of attendance centres so that public saw "offenders are being deprived of some of their liberty".
The only reasonable response to both suggestion is resounding ‘NO’.
The whole business of putting offenders on community service in uniforms is one that I had thought dealt with more than adequately at the time that Hazel Blears suggested that they should wear Gitmo-style orange jumpsuit, only for that suggestion to be quickly retracted in the face of public ridicule.
The problem with putting offenders doing community service in uniform is one that is quick easily illustrated.
Earlier this year, I took my 14 year-old son to his first rock festival, the Download Festival at Donington Park – and had an excellent time, as it happens. Rock festivals, as it happens, have changed considerably over the years, more or less under the direct influence of the hugely successful Glastonbury Festival, such that where once one would have spent a couple of days camping out in a field with little else to do but watch bands, drink beer, eat hugely expensive junk food from greasy-looking burger vans (staffed by equally greasy looking vendors), today one gets all that plus a small fun-fair, skateboard/bmx displays and competitions, after-hours entertainments – Download had an over-18s only ‘cabaret club’ with stand-up comedy shows and lap-dancing (apparently… with my partner, son and 14 year-old niece in tow there was no prospect of checking out that venue) – and a sizeable ‘street-market’ that was open from around 8am to at least midnight.
And if there was a ‘hot’ item for sale this year, then judging from the number of people I saw wearing it during the four days of the Festival, it was fake US prison attire; nothing quite so elaborate as the full -on orange jumpsuits but a large number of shirts (bright orange, black or dark blue) and that old favorite, the dyed-black German army-surplus combat jacket) all emblazoned with stencilled text announcing that the wearer was a former inmate of institutions as varied as Gitmo, Alcatraz, San Quentin, Attica or a variety of state psychiatric instititutions – my son went for a black combat jacket with red stencilling for a mental hospital in Philadelphia for what was the very reasonable price of £15.
Such is the nature of street fashion that any possible impact that placing offenders on community service in uniform might have would be rapidly negated by the uniforms becoming, first, a ‘badge of honour’ amongst some young offenders and then a fashion item, unless one could contrive a design uniform so deperately uncool as make such a transition impossible – which seems unlikely when one considers that for a time even pastel-coloured shell-suits were thought fashionable in some quarters.
Unless one is prepared to put offenders in a uniform consisting of brown polyester trousers with a waste-band that stretches up to a mere in ord so below the nipples, a nylon shirt and a home-knitted tank-top then there is little prospect of arriving at design that will not be rapidly – and fashionably – subverted to other purposes.
As to the matter of longer sentences for unemployed offenders, in what sense could that be considered justice?
Denham makes the point that courts already apply a form of differential sentencing in relation to fines by taking into account the income and financial status of offenders when levying fines, however a fine and a custodial sentence (or community service order) are two very different things with the result that his argument is based on an ‘apples and oranges’ comparison.
There are sound practical reasons for varying the size of fines according to the offenders ability to pay, both in trelation to seeking to ensure that such fines have a sufficiently punitive/deterrent effect on the offender as to persuade them of the error of their ways and in terms of the practicalities of collection and the need to avoid, if possible, the entirely counterproductive outcome of an offender finding themselves ‘forced’ to resort to further criminal activity in order to pay the costs incurred in being fined for an earlier offence. The classic example of this is, of course, street prostitution, where it is almost a matter of routine that, in the absence of other support, one will find prostitutes back working the streets within hours of a court appearance in order earn the money to pay off the fine.
To suggest that it may be right to increase the duration of sentences where the offender is unemployed suggests a mind-set coloured both by considerations of creating an appearance that would ‘play well’ in the Sun, Daily Mail and Daily Express and, more importantly, by the always problematic notion of a notional differential between the deserving and undeserving poor; one that has persistantly troubled left-wing ‘thinkers’ for the entire history of the Labour Party – as I recall this distinction certainly occupied the minds of some early Fabians even to the extent of them speculating on the possibility that the problems of dealing with the ‘worthless’ social underclass might be solved by the most extreme methods; anything from eugenics to simply culling the feckless and irredeemably indigent. It goes without saying that such musings do not show left-wing thought at its best or anything approaching its most humane.
Yes, it is true, that certain notably liberal states do employ forms of custodial sentence in which the employment status of the offender is taken into account. Again, from memory, both the Netherlands and Sweden have (and probably still does) made use of ‘weekend’ prisons for petty offenders in which the liberty of offenders is curtailed only at the weekend (obviously) so as not to cause them to lose their job as a result of having received a custodial sentence. This is certainly not an idea without merit or value, but the motivation and thinking behind the use of such a custodial system in these countries is rather different to that which appears to underpin Denham’s thinking; the intent being first and foremost to ensure that the offender can remain in gainful employment and therefore avoid the trap of poverty (and further poverty-induced criminality) rather than to impose a more punitive regime on those without employment.
The overriding question one must consider here is precisely what Denham’s proposal is expected to achieve in the context of the main functions of the post-conviction criminal justice system?
His suggestion that, on principle, punishments should have a "broadly equal impact on people", suggests that he is thinking, or at least attempting to cast his idea, in terms of a notional sense of justice, as much to suggest that increasing the duration of sentences for unemployed offenders redressed the ‘balance’ of their enjoying greater liberty by not having deal with the strictures that come with holding down a job. On the opposite side of the coin, however, one can readily argue that their economic circumstances afford them considerably less liberty than those in employment; they may notionally have more free time but are also less able to make beneficial use of that time due to the constraints of the financial circumstances. In assessing the impact of sentencing there is, therefore, a question of the relative value of the liberty enjoyed by someone who is unemployed as opposed to someone who is in work.
Does the notional value of the quantity enjoyed by of the former outweigh that of the quality enjoyed by the latter? That is far from being an easy question to answer and one that is impossible to assess in anything but entirely subjective terms and therefore a rather poor basis upon which to attempt to construct a coherent sentencing regime.
Longer sentences are certainly punitive and satisfy insatiable tabloid-driven demands for greater punishment of offenders; but then the question has to be asked as to what exactly are we punishing these people for? For their criminal conduct or for their being unemployed? The one tabloid newspaper to cover Denham’s comments (from an advance briefing), The Daily Mirror, prefaces an otherwise factual account of its content with the headline, ‘Exclusive: Top MP, Give Jobless Longer Sentences’ to which it appends the sub-heading, ‘Layabout yobs have the time, says Denham’ and appears, therefore, in no doubt that, at least in part, it is the fact of someone’s lack of a job that justifies greater punishment.
But if one takes that route, then are we not simply punishing someone more heavily simply for being poor – and if so does that not run contrary to the concept of social justice that (ostensibly) lies at the heart of Labour’s political philosophy and values?
Introducing the concept of differential sentencing for the notionally deserving and undeserving poor also creates tremendous practical difficulties insofar as it would appear to require the courts to make an assessment, in handing down sentence, as to whether the offender they are dealing with is one who is unwilling to get a job as opposed to one who is unable to get a job for reasons that may be partly or even largely beyond their control. Denham suggests that, for example, those who do not work because the care for family members would fall under the deserving side of the equation, but what of those whose lack of employment is a consequence of their own poor health, their lack of educational attainment and opportunity, or have mental health problems that limit the chances of gaining employment or even those who find themselves unable to find work because, for all that the government has expanded the scope of equality legislation, they still find themselves in a labour market where the odds of success are stacked heavily against them. The overall employment rate amongst over 50s has increased under Labour, but it remains the case that in 2004 the were still some 27.4% of those aged between 50 and the state pension age were classed as economically inactive.
And beyond that, if having more time on your hands than someone in employment become grounds for the imposition of a longer sentence, would this also mean that pensioners, those who have already retired from work, would be looking at rather more jail-time than their more youthful (and working) criminal counterparts?
Absent in all this, as is so often the case, is any consideration of the other side the custodial coin; the rehabilitative element at which the current prision system is notably primarily for its widespread and manifest failures.
Remember that here, in Denham’s suggestions, we are dealing with sentencing for the unemployed, many of whom will be those in most need to rehabilitative support if they are to get off the criminal justice treadmill.
Not all unemployed offenders who come before a court does so because they are irredeemable ‘layabouts’; many find themselves before a court for acqusitive crimes of a kind that are, themselves, either driven by poverty or the result of behavior undertaken as a means of ‘escape’ from its depredations (i.e. drug use), and it should be noted that it is largely in the area of such acquisitive crimes; theft, burglary, fraud, etc. and in crimes in which there is no notional victim (prosititution) that the considerations outlined by Denham are most likely to apply. In the case of the violent offenders it would be absurd to suggest that considerations of their employment status might carry significant weight over or in addition to the degree of violence exercised in committing the offence for which they have been convicted.
The perennial question in dealing with poverty-related criminality is that of whether there isn’t more to be gained by directing the resources of the criminal justice system more towards rehabilitation than punishment.
Does society, in general, benefit more from banging up petty criminals whose unlawful acquistive behaviour is driven by drug addiction than it would from placing such offenders in rehabilitation programmes with the objective of weaning off the habit that drove them into crime in the first place? If an offender is found to be trapped in poverty and denied the chance of gainful employment due to their low educational attainment or lack of marketable skills, is it better, in the long-term, to imprison them or educate them? These same questions are equally applicable in terms of community sentences, which often involve offenders carrying out relatively menial (and manual) tasks; cleaning up graffiti is one particular favorite, tasks that may well satisfy the desire of the press to offenders ‘punished’ by way of a nod to the bygone days in which breaking rocks for hours on end was thought an essential component of any prison regime, but which does little or nothing to afford the offender any basis upon which they might gain employment one their sentence is concluded.
Faced with an unemployed offender with minimal basic skills (i.e. literacy and or numeracy) is it really better that they should work off their sentence clearing the local canal of dead dogs and shopping trolleys or would their time not be better spent in a classroom receiving the education they didn’t get at school, in the hope that by addressing their lack of marketable skills they might go on to escape from the cycle of criminality – in reality a downward spiral – by getting a job and escaping from abject poverty?
Or to use a medical analogy, are we not better off seeking cures for such problems rather than merely managing the symptoms in order to keep the hanging and flogging lobby from bursting a bloodvessel at the headlines in whichever of the screamsheets they read over breakfast?
As the recent and entirely artificial ‘furore’ over some prisonered being ‘paid’ to play Scrabble – a game that requires them to form letters into words and develop literacy skills – ably proved it is nigh on impossible at present to conduct a sensible and rational debate on the balance between punishment and rehabilitation in the criminal justice system without being immediately drowned out by the usual pissing contest over who’s the ‘toughest on crime’. Driven on by the screamsheets who understand that nothing sells copy better than lurid headlines, macho posturing and the scent of public fear and anxiety, however unfounded in reality, we have arrived at the sad position where the public incapable of assessing the effectiveness of a Home Secretary by any means but the cut of his black uniform and the mirrored patina of his jackboots – any sense of understanding whether the criminal justice system is operating effectively in tackling crime is entirely lost in a cloud of media-fuelled testosterone.
The sad paradox of the Blair years is that while, overall, the level of crime has fallen year on year, even allowing for usual vagaries of official Home Office statistics, public fear of crime has grown, and continues to grow, exponentially.
The mantra of the Home Office has become ‘the rights of the victim’, as if this can somehow be separated entirely from other rights, not least the right to justice and to a fair trial before an impartial court and a jury of your peers – the latter being a right that the Home Office has been attemtping to curb for some years, now.
We are constantly being exhorted by politicans and the press to empathise with victims of crime in the much the same kind of exercise in vicarious public ‘grief’ that accompanied the death of Diana, Princess of Wales, resulting in the creation of a culture of celebrity around the more notable, and high profile, victims of crime, beginning with James Bulger and, perhaps, finding its ultimate expression to date in the Soham murders. As a society our perceptions of crime and, more importantly the risk of crime have become entirely distorted by a cult of victimhood that is little more than the bastard offspring of tabloid journalism and Warhol’s adage that everyone would one day have their fifteen minutes of fame – which today is readily achieved if one can contrive to become a newsworthy corpse.
In such a climate, the criminal justice ‘debate’ such as it is, is almost entirely driven by the impulse to punish, an impulse about which one needs always to be vigilante as its motive force is all too easily (and often) the desire not for justice but for revenge. Rarely, if even, does any thought of rehabilitation get a look in, and where it does it is there only to be derided for being ‘soft’ and ‘liberal’ as if both should be regarded, themselves, as being crimes against the common good.
The bitter irony in all this is that for all the macho posturing and talk of being ‘tough’ on crime, such behaviour in government is anything but a sign of genuine strength of will and character. To fall meekly into line with the incessant and illiberal demands of the tabloid press and to respond to their own mantra that ‘something must be done’ with ill-considered knee-jerk policies and ‘initiaitves’ is but a sign of moral weakness and cowardice on the part of senior politicians and, in turn, of the general diminuation of the moral and ethical character of the executive if not of Parliament itself – although, thankfully, at times such a strength of character and moral purpose may still arise from the floor of the House, as it did on the occasion of rejecting the government’s attempt to permit the police to detain terrorist suspects for 90 days without bringing charges against them.
Press-driven moral panics and demands for tough action on crime are neither a new phenonmenon nor an unusal one. One remembers clearly that for a long period of time, during the height of the Northern Ireland ‘troubles’, each and every terrorist attack on mainland Britain in which lives were lost was routinely accompanied by demands from the tabloid press for the restoration of the death penalty for terrorist ‘murders’, demands that, on occasion, resulted in the matter being put to a vote of the House of Commons.
Back in the 1970s, had the Sun, Express and Mail has their way, the British state would have executed the Guildford Four, the Maguire seven and the Birmingham Six for their presumed ‘crimes’, which as we now know we not theirs at all.
That these men did not die in a British prison at the end of rope and were ultimately, and in the case of Guiseppe Conlan, posthumously, exonerated of the crimes for which they were imprisoned is in no small part due to view of successive Parliaments that, in matters of criminal justice, it is more important that governments do the right thing than it is that they take that which, for a transient period of time, they are told by the press would be the ‘popular’ course action.
Thinking back to those times, one’s memory of the politicians of the time is that but for the usual band of die-hard hangers and floggers that one found in the minority in the Tory Party (and all too easily in Unionsit ranks) there was, even in the face of the media’s most strident demands for vengeance, never any realistic prospect that the government of the day, and Parliament itself, would cave in to such ‘pressure’ and reinstate hanging. Yes, there was at least one free vote in the Common, during the Thatcher years, but even that was undertaken solely to keep her own back-benches happy and to allow those in her own ranks who supported the reintroduction of the death penalty to make a public statement.
Back then, one could be confident that whatever else happened, Parliament would do the right thing, the moral thing, and not reinstate hanging – looking at the government as it stands today and it record on pandering to demands of the tabloids, could one feel quite so confident were it not that the Human Rights Act specifically prohibits a return to capital punishment?
Sadly, there are times when one is not quite so sure as one should be.