Why criminal law? Conference, 13.1.2007: selected points, and comment by MW

Douglas Husak said that a discussion of criminalization needs to consider what is proscribed. Criminal Law (CL) states what is punishable. There is a right not to be punished: how can it be overridden? CL must justify this clearly to a high standard. Overcriminalization can lead to pressure on police and prosecution to use discretion and divert cases. ‘Legal philosophers, like myself, tend not to spend much time in the real world.’ If we abolished CL, what could be the alternative, and what probably would emerge?

 Chris Clarkson, responding, refereed to the 3000+ new offences created under New Labour since 1997. It is often the first resort for problems. CL is different because a conviction makes a person liable to stigmatic punishment, although this is an ‘evil’ (Bentham) and causes pain (Kant). We need a principle of minimum criminalization, as proposed by Ashworth. Is CL justifiable even as a last resort? The implied answer seemed to be Yes, although we should be aware of the drawbacks of punishment.

 What is CL for? CL and punishment are assumed to be reductive/preventive. The state has an obligation to protect other citizens, which may mean infringing individual rights. But to say that CL is effective is to make a huge assumption. however, it is justified if its aim is plausible, even if it is not successful.

 Its second aim is to communicate the distinction between acceptable and unacceptable behaviour. He referred to an article by Husak in Oxford Journal of Legal Studies in 2004, arguing that even if, for example, criminalizing domestic violence leads some women not to report it, and even if there are other effective ways of dealing with it, it should still be criminalized. The justification lies in just desert: ‘a freedom for a freedom’. The offender has indulged his freedom at the expense of that of others, so his freedom should be restricted.

 We need to separate two points: Is CL justifiable? and Is the manner of applying it justifiable? We should not condemn CL because of the failings of the criminal justice system.

 Kimberley Brownlee, commenting, said that CL is different because it imposes punishment; but we should also consider its effects on victims and CJ officials. Is censure inseparable from punishment? She referred to ‘theft of the conflict’ as a drawback for victims, and said that for officials, the potential for abuse and error was a problem, and also the difficulty of balancing consequential and symbolic aims.

 Antony Duff queried whether we should focus so much on punishment. He suggested that law is there to condemn certain actions; how we respond to them is a separate question. Martin Wright made a similar point (see below). A questioner asked: if a particular act such as rape were not already defined as criminal, should we try to find other responses before criminalizing it? He suggested that offences such as rape should be criminal, as a first resort. Dougls Husak agreed that if there were CL at all, it should include offences such as rape and murder. For him this was not a last resort. Another speaker suggested that for some, such as internet criminals, being criminalized was seen as a badge of honour.

 Claudia Card drew a parallel with the abolition of slavery. Gradualists argued that if it were abolished immediately, the alternative would be worse, but that didn’t happen. So do we need a revolution to abolish punishment? When we claim to justify it, are we just making excuses for it?

 A questioner raised the issue of corporate manslaughter: although other redress is available, people want it to be stigmatized. Chris Clarkson replied that even if there were fines of millions of pounds, that might not be enough. The main aim is to make companies safer, and this is more important than stigma and censure.

 Defending the criminal law. Andrew Ashworth and Lucia Zedner raised five ‘challenges’ to CL and procedure: diversion, fixed penalties, summary trials, strict liability/fixed penalties, and incentives to plead guilty. These are deviations from the liberal paradigm. When a criminal trial is regarded as an expensive luxury, there is pressure for diversion, fixed penalties and so on. They distinguished three types of state: The first was regulatory, ‘steering not rowing’, requiring to be managed, and forgoing some safeguards in the interests of efficiency. Secondly, a preventive state, instead of being reactive, brings in for example anti-terror legislation, risk aversion, trying to prevent wrongs not yet committed. Thirdly, an authoritarian one adopts penal populism, the new punitiveness, retaliatory measures.

 But what should be the normative response? can the ECHR provide a restraining mechanism? Some preventive measures are outside the Convention’s scope. In any case there should be no CL, and certainly no imprisonment, without proper safeguards.

 AA spoke against devices to circumvent criminal procedure, notably ASBOs.. To make a breach of a civil requirement punishable with up to 5 years’ imprisonment is not acceptable. For the prime minister it seems that to ‘modernize’ means doing away with procedural protections. There should always be a right to be tried, for example for terrorist suspects.

 Rowan Cruft, commenting, said that the interests of victims and offenders are not necessarily opposed. We all bear some responsibility, as well as the offenders. There is a liberal assumption that justice should be state centred and algorithmic [? = following predetermined paths]. Everything doesn’t have to be done through state institutions. Should the state tell teachers how to punish pupils? If Ashworth and Zedner are correct, diversion should be limited to minor offences. In a communitarian society perhaps there should be more voluntary intervention, non-penal measures, non-state sanctions; but we should need to look at the ethics of non-criminal sanctions. LZ agreed that we should spell out what to do with harms outside the criminal law. What would be proportionate? AA suggested a jurisprudence of prevention.

 Stuart Green, commenting, said that the American system was even more overburdened and punitive than the British, but diversion to rehabilitative or restitutive programmes was under-funded. White-collar defendants could get deferred prosecution agreements. The trend seems to be towards a two-tier system: CJ with procedural rights, diversion without.

 A questioner mentioned Jim Whitman’s book Paths to justice, contrasting our law with that of France and Germany, where core criminal law is distinguished from administrative offences.

 A questioner asked what political changes could rein back these developments. Lucia Zedner said that the restrictions of the Human Rights Act were part of the problem. Someone said that the government seemed to regard breach of the HRA as a badge of honour!

 Claudia Card wondered if decriminalization was a full solution: if criminal law is confined to serious cases and diversion to minor ones, what about those in between? AA repeated that there should be no imprisonment without proper protections.. He was not against diversion for administrative offences ( Ordnungswidrigkeiten). LZ

 AA said we should look at other ways o deal with many social ills. But what do we do if a person won’t comply? The bad answer is to criminalize ‘breach of the order without reasonable excuse’, because this means in effect that a civil court has created a criminal offence. So he would favour an algorithm model.

 Antony Duff said that even minor wrongs require a response, although not outrage. Protection of the accused should be built in. AA asked if fixed penalties carried enough censure. Martin Wright commented that punishment is the enemy of truth, and that censure from the victim could have more impact on the offender than from a court, although admittedly it does not take place in public. AA said he agreed – in some cases.

 Torture. Claudia Card said that to consider torture one must read memoirs of its victims. She argued that there is no moral excuse for torture, even in exceptional circumstances. it is inexcusable wrongdoing. She respected, but disagreed with, Alan Dershowitz’s argument drawing a parallel with abortion: he said that to regulate it was better than to try unsuccessfully to suppress it.

 The definition of torture was the infliction of severe pain for purposes such as interrogation or punishment. Originally ‘except as permitted by Standard Minimum Rules’ was added, but this was deleted in 1984. But wounds on the battlefield are not torture; it is a mistake to focus on the pain rather than the stress and psychological consequences, which are just as objectionable.

 She listed four temptations to justify torture: urgency (the ‘ticking bomb’ of her title), mercy (to protect other victims), the last resort, and self-defence. They were not even partially justified. Torture is not always quick, a person may give wrong information, or may not have any. She argued against cooking up imaginary cases which appear to justify torture; it is essential to keep to the principles.

 A questioner gave the example of a real case in Germany, where a kidnapper, threatened with torture, revealed where his victim was hidden. Was this justified, especially as in the event torture did not have to be used? But even a threat, for example to harm loved ones, may amount to torture; and a case like this cannot prove that skilled negotiation would not have given the same result.

  Should the state have the monopoly of inflicting sanctions? Alon Harel considered whether the state could delegate, for example, the infliction of shaming penalties. He drew the parallel of parental sanctions on children. These are instrumental: ‘we have to beat them up [sic] to educate them’ and it can’t be done effectively by non-parents. With shaming penalties, such as making an offender wear an ‘I am a thief’ placard, or putting ‘DWI’ (driving while intoxicated) on his car, the state is delegating the penalty to others. The ostracism which it can cause is not a criminal punishment.

 John Tasioulas, commenting, shared Harel’s distaste for shaming penalties: respect for the individual is required. He commented that parent might be able to discipline children without punishment.

 Suzanne Uniacke, commenting, told a true story. Her neighbour’s children were throwing stones at her cat. She asked them to stop, they didn’t, so she went to their mother. The mother told them it was wrong ‘because you have upset this lady’. SU argued that the mother should instead have asserted a rule and told them that the offence was breaking the rule, offending her (the mother’s) standards. The conduct is wrong: it is not enough to say that it has made someone angry. Similarly, when imposing a sanction the state must censure, declaring that its norms were infringed.

 Questioners drew parallels with private prosecutions and private prisons. In the latter case, is there a problem with being delegated by the state to supply food to a private prison, or to build one? Probably not, but to be asked to shame someone is questionable.

 Chris Bennett said that the state could delegate the infliction of sanctions, but not the decision as to what is classified as wrong.

 15.1.2007

Comments by Martin Wright

 The contributors have conflated two concepts, what should be defined as criminal, and how should it be dealt with. As Ashworth and Zedner point out (footnote 102), criminal law is referred to in other languages as penal law (droit pénal, Strafrecht, or in Russian even worse: ugolovnoe pravo, literally ‘capital law’). This is to assume that the response to wrongdoing must be punishment, and other contributors (Harel, Husak) take this as given.

 In fact criminal law is essentially a list of those harmful acts which are serious enough for the state to intervene, rather than leave the parties themselves to resolve them. How the state responds is a separate question. Some writers have suggested that any measure imposed as a result of a crime should be called ‘punishment’, but it is suggested that a more precise terminology would be helpful. For example,

  • ‘Conflict resolution’ could be used to refer to the way in which people handle cases themselves, or at least without state intervention, for example by taking a dispute that had erupted into violence to a community-based mediation service.

  • ‘Intervention’ could cover any action by the state, compulsory or with the offender’s consent. It would not be correct to call the latter ‘voluntary’, because if offenders refused to take part they would still have to go to court; some might find this less frightening than the prospect of facing their victim.
  • A ‘measure’ could cover a compulsory non-punitive intervention, such as a rehabilitative or reparative one. Some offenders would feel good because they had made amends, others would find it unpleasant, but it would not be a punishment because the unpleasantness would be secondary, not deliberate.
  • ‘Punishments’ would be those that were intended primarily to be unpleasant or at least inconvenient.
  • ‘Sanctions’ would be a general term to cover measures and punishments, in other words the outcomes that do not require consent. (‘Punishments’ and ‘sanctions’ are often used as if synonymous, for example by Harel.)

 For an act to be treated as a crime, it is not enough for it to be included on the (ever-lengthening) list of cases in which the state wishes to intervene. It depends also on: whether person(s) affected, or witnesses, decide to report it; whether the police decide to record it as a crime; and whether the prosecutor or a court decide that a crime was in fact committed (actus reus + mens rea). The presumption that those who commit such acts should be punished creates difficulties. In order to avoid punishing people wrongfully, safeguards such as rules of evidence and a higher standard of proof are necessary, which make it more difficult to secure a conviction. It is also necessary to establish that he harmful act fitted one of the defined categories; hence those ever-lengthening lists.

 I suggest that punishment (or torture) could only be justified if it could be shown beyond reasonable doubt that it is more effective than any less violent method; but there will always be such a doubt (1) because the torturer often does not know whether the victim possesses the information or not, (2) the victim may give false information, (3) or may refuse to give in, and (4) even if torture produces the correct information, there is always a doubt as to whether it could have been obtained by skilled interrogation, just as nowadays it is usual to try to end a hostage situation by negotiation and not by violence.

 It has also been argued, notably by Nils Christie in his much-quoted article ‘Conflicts as property’ (1977) that this complex process ‘steals’ the conflict from its owners, the actual participants and even the surrounding community. This too is partly because of punishment: it is assumed that if the community is left to deal with the incident it will do so in a way that is not only punitive but unacceptably so.

 Restorative justice avoids many of these pitfalls. It requires only that someone experiences the act as harmful or hurtful, so the elaborate lists and definitions are not needed. It enables the parties to act for themselves, and shows that members of the community can act not as a lynch mob but as mediators. It does not exonerate the offender, but provides an opportunity for him or her to make amends, and for the victim to have a say in how this should be done. Unlike the criminal justice process, it allows dialogue between victims and offenders, subject not to rules of evidence but only of common courtesy.

 Restorative justice is predicated on a different symbolism and a different psychological model. The symbolism is that, rather than repaying one harmful act with another, the response is to invite, and if necessary require, the offender to repair the harm as far as possible or at least make amends for it. The psychological basis is to replace the behaviourist model of punishments and rewards with one which persuades and enables people to behave in a way that leads them to value themselves and be valued by others. In order to influence someone’s behaviour, it is no use thinking only of our own feelings, whether angry or sympathetic; it is necessary to think of their feelings and their needs. A prime need is to be valued, but we also need the wherewithal to achieve that – accommodation, employment, emotional support and so on. Punishment provides none of these.

 Another difference is that in criminal justice the trial process is solely to determine guilt or innocence, and the effect on the offender is only through the sanction; but in restorative justice, the process itself has potential for influencing the offender’s behaviour. Thus it answers Ashworth and Zedner’s challenge (d): that criminal justice is not appropriate because it does not examine broader issues.

 This of course raises many questions, which have been faced in the restorative justice literature. To take a few:

  1. Would it deter offenders? No, it would aim to influence their behaviour by showing its consequences for others, instead of the threat of consequences for themselves.
  2. Would it deter others? People are deterred by the probability of being caught, rather than by the severity of the consequences, and this probability would not be affected. Social order in a civilized society should not be based on fear: there should be other strategies for the reduction of harmful behaviour.

  3. What if the accused denied involvement, or refused to comply? These are among the reasons why courts would still be necessary; see (d)..
  4. Is it possible to deal restoratively with offenders who refuse to co-operate or are considered very likely to commit further serious offences? Such offenders would be subject to restriction, or deprivation, of liberty, but not in a way that is deliberately punitive. The primary measure would still be reparation, but it has to be recognised that it is impossible to compel anyone to work if they are determined not to.
  5. Would the public regard a reparative outcome as sufficient, especially with regard to the denunciatory aspect of state intervention? This will be a gradual process. The overwhelming proportion of those who take part are satisfied, so there is reason to believe that as more and more people are involved, for example in family group conferences or as facilitators, there will be greater acceptance.

 Thus there would be an end to penal law, but not to criminal law, nor to coercive measures. There remains the problem of how long such restrictions should last, but this is a problem with punitive imprisonment too.

 Ashworth and Zedner describe the transition from a legal culture (is it legal?) to ‘new public management’ (is it efficient?) and ‘audit culture’ (is it quick?). All of these treat the person who has caused harm, and for that matter the person harmed, as an object to be processed; they omit consideration of relationships which could influence the wrongdoer’s future behaviour.

 Harel suggests (p.3) that the state’s role in inducing moral behaviour justifies its use of punishment. But many more conditions are needed to justify it, notably that it prevents more harm than it creates. When he says (p. 12) that punishing children is conducive to their education, he ignores a great weight of educational experience. He links parental power to punish with ‘parental duties and powers’ (p. 15); the chief of these is being larger and stronger than the child.

 He exposes problems that arise if punishments are inflicted by citizens; mediation, however, is not inflicted, because it depends on consent; and the citizens are not a mob but are trained to act in a restorative framework, .

 According to Husak, to enhance the rule of law, the public must be more willing to report criminal activity to the authorities (pp. 26-7); I would add ‘or deal with it in other acceptable ways’. At present about 3 per cent of crimes end in a caution or conviction; if this percentage was much increased the system would be overwhelmed. He says that people might become more co-operative if they believed the criminal law to be just. If there are doubts, they are probably more about the process than the law, and it has been found that both victims and offenders who have experienced restorative justice have increased respect for the agencies of justice.

 He refers (p. 32) to what happens when the entire police force is arrested (or, he might have added, goes on strike); but this does not affect punishment, only the probability of being caught.

 Arguing for the replacement of penal law by ‘measures’ and compensation (before restorative justice had arrived on the scene), the German writer Arno Plack (1974) asserted that penal law is essentially retributive; but he conceded that the reform would have to be a gradual one. He quoted the jurist Gustav Radbruch: whose aim (already in 1932) was ‘not a better penal law (Strafrecht), but something better than penal law, namely a rational treatment of the lawbreaker in terms of his education and the protection of society.’

 Another author, Sebastian Scheerer (1993) contributing to a book called ‘Must there be punishment’, defines criminal law as a preventive measure through incapacitation and efforts at rehabilitation – no mention of deterrence or retribution (p. 79). He then summarizes other views, including Kant’s (punishment is a categorical imperative), von Liszt’s (punishment is only right when it is socially necessary), and Baumann (punishment has only a social task, and no customary, no moral and no religious one). Von Liszt recognised that this view became popular not because of any brilliant professor but because the state’s function was changing from that of a night watchman to an interventionist one.

 It was hoped, says Scheerer, that if criminal law was limited to a social function its reach would be reduced to those fields where it was strictly necessary, the protection of individual rights (Rechtsgut). Instead, it has grown immeasurably.

 It has become paternalistic, not liberal. The damage to individual rights has been inflated to include the whole population, by including damage to the trust on which society is based. H Otto and G Jakobs say that the task of criminal law has now become the confirmation of norms. It is for flouting norms that the offender is condemned. The state takes over responsibility for the citiznry’s sense of security, like a super-father-figure.

 The social task of criminal law contained two utilitarian hopes, contributing to social justice: to help those who became delinquent through social disadvantage, and to lock up those who abused their privileged position to commit (economic and organized) crime. If any aim of criminal law is missed, and therefore delegitimized, another is put forward as justification (p. 84).

 Today the anxiety of the public, expressed in a demand for punishment, is no longer problematized, but accepted as a fact and made into the basis of criminal policy rhetoric. When the hidden functions of criminal law are brought to light, the system is not ashamed of them but presents them as proof of its fitness for purpose.

 Criminal law is not eternal. In the ‘regulated anarchy’ (Weber) of acephalous societies, which characterized most of human history, there was deviant behaviour and sanctions, but no criminal law or criminal punishments. ‘Social control here is not repressive, but aims at reintegration of the deviant, restitution of any damage, restoration of the status quo, peacemaking and limitation of conflict’ (Hess and Stehr 1987). There have always been disapproval of unwanted behaviour and negative sanctions (which could be called ‘punishments’ if one includes the disapproving look, parental ban on television or withdrawal of affection) but criminal law and punishment are by no means universal.

 Does it have to be done by the state? In the 19th century the state claimed a monopoly of power, expressed in the pomp of the court and the demeaning treatment of the accused. The harm to this monopoly, rather than to the victim, was condemned: it was an affront to the majesty of the law. But anyone who thinks about torture, genocide, colonial and war crimes and other crimes of violence by the state can not have so much confidence in it. In historical times, private murder has never matched public murder (Enzensberger 1964). Such states cannot exercise effective and just social control. In a democratic community (which does not exist, but is possible) ‘penal law’ would gradually become (return to) conflict resolution law. And that could be civil law. The times of the so-called private criminal law, Scheerer concludes, were not clearly worse than those of public criminal law. Almost anything would be better than the public monopoly of punishment.

REFERENCES

 Plack, Arno (1974) Plädoyer für die Abschaffung des Strafrechts. List Verlag.

 Scheerer, Sebastian (1993) ‘The social task of criminal law’. In: H Peters, ed. Muß Strafe sein? Zur Analyse und Kritik strafrechtlicher Praxis. Westdeutscher Verlag.

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