“Deterrent sentencing is another facet of the criminal justice system that is just plain wrong.”
What connects Bernie Madoff (the convicted American financier), the defendants in the 2011 riots, pickpockets in central London and a mum who sought to smuggle her son into the UK from the Calais ‘Jungle’? Give up? They have all been given sentences designed to deter others from committing similar offences in the future. It could be argued, based on the normal harm and culpability principles, that they should have faced lower sentences or, indeed, avoided prison – yet the principle of ‘general deterrence’ seemed to override that. So these sentences were not solely calibrated to deter those individuals from committing further crimes themselves; as the judge expressed aptly in the Madoff case
(when talking about sentence), ‘the symbolism is important here because the strongest possible message must be sent to those who would engage in similar conduct that they will be caught and that they will be punished to the fullest extent of the law’. For Madoff (admittedly a US case), that meant the judge sending him to prison for 150 years!
We don’t really need to go to the US for examples, though. Each of us, in our practices, will see judges with regular occurrence indicate that a ‘message must be sent’. The riots in England provided a classic example: the recorder of Chester imposed four-year sentences on two men for using Facebook to incite riots that never happened, saying that he hoped it would be a deterrent to would-be rioters. Even if you have no convictions, you can expect an immediate prison sentence of up to 18 weeks for pickpocketing if you end up in Westminster Magistrates’ Court, which has its own ‘tariff’. This was implemented due to the supposed prevalence of the offence. What prompted me to consider this in more detail, though, was watching a co-defendant be sentenced to 12 months in prison for trying to smuggle her son into the country in the boot of a car, and away from the mess of the Calais ‘Jungle’. The judge could not be faulted in following the precedents set by the Court of Appeal, but I can see no logic, no justification and no sense in sending a young mum to prison on the principle that such a sentence is likely to put others off committing the same offence in the future.
All of these are examples of deterrent sentencing; indeed, under Criminal Justice Act 2003 s142(1)(b), a court can have regard to the reduction of crime by its deterrence when sentencing. The tragedy is that this is yet another facet of the criminal justice system that is misconceived, outdated or just plain wrong. Deterrence theory supposes that individuals balance the benefits of their crime against the costs of committing it. Human nature, though, does not seem to work that way. In court or with our clients, we see this every day. We should remind the courts of it constantly. If the ‘deterrence’ is required because of the prevalence of a particular offence, we should demand, and then scrutinise and challenge, the evidence of that prevalence.
Even if deterrence does play a role, a wealth of evidence seems to suggest that the sentence is not the main deterrent. In his essay ‘Deterrence in the twenty-first century’ (Crime and Justice, vol 42, no 1, 2013), Professor Daniel S Nagin makes clear that the literature and research show that the certainty of being caught is a more powerful deterrent than the potential punishment.
Meanwhile, for all crime, the proportion of suspects who are caught and punished has more than halved over the past five years, to nine per cent (Nick Cohen, 'Graduate trainee or career criminal? These days, that's a no-brainer', Guardian,
16 September 2018);1See also Crime outcomes in England and Wales: year ending March 2018 (Statistical Bulletin HOSB 10/18, Home Office, July 2018).
only three per cent of burglaries and four per cent of robberies were solved last year. So for a robust criminal justice service, more attention needs to be paid to detection and policing. Indeed, whatever the merits of allocating more resources for policing (prevention still seems to me a better investment), the last thing we need is deterrent sentencing.