Should sentences for animal cruelty be increased?

In the lead up to their annual conference, the Conservatives are proposing marked increases in sentences for those convicted of animal cruelty  –  though not, apparently, for the cruelties involved in hunting foxes. And from time to time, the newspapers express their anger at what they take to be lenient sentences for repellent crimes against animals .

One debate to be had is whether sending someone to prison – where they will rarely be challenged to think about the wrongs they have done – has any advantage over (for example) putting them under probation supervision, where they can be encouraged and enabled to understand why these crimes are so appalling. But the claim seems to be that longer sentences will deter others. This belief has no evidence to support it. In some cases it is wholly implausible: no one contemplating an offence thinks “Well I wouldn’t do this if I would go to prison for two / three years, but it’d be worth it for one.” It is not at all clear, then, that longer sentences would lead to any reduction in animal suffering.

One suspects that it is anger that prompts the proposal to increase the sentence and anger is a wholly understandable response to cruelty. Anger, though, however well-grounded, is rarely a good guide to public policy, as Martha Nussbaum so persuasively argues. And once we realise that there is no uniquely appropriate amount of punishment that is fitting for any crime, the best we can do is to make sure that graver crimes attract heavier sentences and less serious offences attract lighter ones. This could be achieved by reducing the level of punishment for these lesser crimes. If people get longer sentences for (say) property crimes than for animal cruelty, justice can be preserved by decreasing sentences for the former.  The argument is that once deterrent arguments are found unconvincing, the way to mark our disgust at animal cruelty is not to increase sentences for this crime, but to reduce sentences for crimes that we recognise to be less serious.

If it makes sense to rank crimes in order of seriousness,  reducing sentences for less serious crimes is, in general, greatly to be preferred to increasing sentences for worse ones. The belief that we can only mark our outrage by ever-longer sentences leads to a spiral of punitive inflation, larger prison populations and dreadful consequences for human beings (and their families), who like other animals, should never be treated with cruelty.

A Suitable Amount of Crime (Nils Christie)

‘Crime does not exist. Only acts exist, acts often given different meanings within various social frameworks.’ (Christie 2004: 3)  Nils Christie makes an instructive distinction between crimes and ‘deplorable acts’.  Some deplorable acts (and of course there will be disagreements among people about which acts are deplorable) are made into crimes, while others are not.  Are all crimes deplorable acts? (Probably not). Are all deplorable acts crimes? (Definitely not). Is making a deplorable act into a crime the best way of reducing its incidence? (Not always, for sure.) Does making an act a crime have undesirable consequences? (Sometimes yes – for example, drug enforcement strategies may the effect of steering users into the company of pushers who will exploit them and involve them in more crimes.) There are many other unhappy consequences besides.

The implications of this critical distinction have been insufficiently appreciated in criminal justice. Where some type of behaviour is giving rise to concern, there are often demands for its criminalisation or, if it is a crime already, for greater punishment. This certainly turns people into criminals, with all the destructive consequences that so often ensue. Whether it leads to fewer such ‘deplorable acts’ is altogether uncertain. Making something a crime is rarely the only, seldom the best and sometimes not even a remotely plausible way of reducing its incidence.

Christie again:

“Some acts are seen as terrible … Terrible acts, however, can be met in various ways. In certain situations they are given the meaning of crime, and action seen as crime control is initiated. In other situations the same unwanted acts are again seen as terrible, but suited to sanctions such as social distance, expulsion, ridicule or demands for compensation. One of the challenges for criminology is to analyse the social conditions giving unwanted acts that particular meaning. In this activity, criminology might be able to give advice on how to find, preserve and nurture those social conditions which work against recent trends of seeing so many unwanted acts as crime in need of penal action. Instead we could open the way for alternative forms of perception and alternative ways of control. Doing this, criminology might come to play an important role in the defence of civil society.” (Quotation from ‘Roots of a Perspective’ in Thinking about Criminology edited by Simon Holdaway and Paul Rock (1998): 130)

 

No monsters (Nils Christie)

Christie wrote of his difficulties in finding monsters.

“Once I was supposed to meet a guaranteed monster. I went to see him and met a man like most men. … My search tells me that it seems possible to understand nearly everything without preconceptions that offenders are outside the human family.”  (Quotation from ‘Roots of a Perspective’ in Thinking about Criminology edited by Simon Holdaway and Paul Rock (1998), London: UCL Press: 122.)

Relatedly he warned against condemnations pretending to be explanations.

“Evil people are their own explanation. The discussion comes to a stop, the phenomenon is understood, there is no further need for intellectual efforts. …  Also, with evil people the next step becomes close to obvious. They have to be eliminated. War is the natural answer. War and extermination.”  (A Suitable Amount of Crime (2004), London: Routledge: 49)

Denunciation interferes with explanation (and therefore wise prevention) and can lead readily to brutality.

 

Punishment as pain (Nils Christie)

Having described punishment as “pain intended as pain”, Christie continues in the preface:

“None of the attempts to cope with the intended pain seems, however, to be quite satisfactory. Attempts to change the law-breaker create problems of justice. Attempts to inflict only a just measure of pain create rigid systems insensitive to individual needs. It is as if societies in their struggle with penal theories and practices oscillate between attempts to solve some unsolvable dilemmas.

My own view is that the time is now ripe to bring these oscillatory moves to an end by describing their futility and by taking a moral stand in favour of creating severe restrictions on the use of man-made pain as a means of social control. On the basis of experience from social systems with a minimal use of pain, some general conditions for a low level of pain infliction are extracted.” (emphasis added)

Full text at https://www.prisonpolicy.org/scans/limits_to_pain/

Nils Christie

Nils Christie (1928 – 2015) was a Norwegian criminologist and sage who gave us profoundly different ways of thinking about crime and punishment. His insights are always grounded in humanity, wisdom and indeed practical good sense.

For an accessible introduction to his life and work, see the Chapter by Katja Franko Aas in Fifty Key Thinkers in Criminology, edited by Keith Hayward, Shadd Maruna and Jayne Mooney (2010: Abingdon: Routledge)

Online obituaries include tributes by Thomas Mathiesen, Richard Sparks, David Cayley,

There are a number of tributes here.

The best introduction to Christie’s work is through his own writings.

His paper ‘Conflicts as property’, (1977 – British Journal of Criminology, 17 (1): 1-15) must be among the most cited articles in the history of the subject and was enormously influential in developing thinking about restorative justice.

The full text of his marvellous work Limits to Pain (1981) is online here.

His other most influential writings are:

Christie, N. (2000) Crime Control as Industry: Towards Gulags, Western Style (3rd edition), London: Routledge

Christie, N. (2004) A Suitable Amount of Crime, London: Routledge

Can ‘tough’ community sentences reduce numbers in prison?

The Lord Chief Justice, Lord Thomas of Cwmgiedd, urges  that fewer criminals should be jailed and tougher community punishments must be developed as an alternative to imprisonment. It is most encouraging to see recognition of the state of the prisons by such an authority. In England and Wales, (as in so many other countries) imprisonment is futile, the prisons bursting from overcrowding, drug-infested, chaotic, dangerous and damaging. Some good work is done for sure, but this is down to the commitment and professionalism of staff working in the most adverse of conditions.

The LCJ cautiously suggests: ‘I don’t know whether we can dispense with more [offenders] by really tough, and I do mean tough, community penalties.’  as an alternative  to imprisonment.

Should sentences be ‘tough’? What sentences should be above all is just and wise. This  is to say that they should correspond to the seriousness of the offence, reflect a respectful recognition of the distress caused to victims, show concern and humanity to offenders – two considerations, by the way, that are by no means in conflict with one another – and be as effective as they can be in reducing reoffending. There are other hallmarks of wise sentences. But none of this has anything to do with ‘toughness’. The term ‘tough’ should be left for politicians in search of a ready (and lazy) soundbite, for sensationalist headlines and for all other people who would rather fulminate than think. It is not a helpful expression for people who dispense justice.

The argument seems to be that the courts lack confidence in the providers of community sentences. In that case, however, providers of community sentences should work to gain the confidence of judges and magistrates by being clear about what they can (and what they cannot) achieve, explaining clearly why they undertake their work in the way that they do and then working reliably and diligently. They should also be responsive to criticism. This is how trust is won.  It can never be gained by extravagant promises about rehabilitation or by claims to be ‘tough’ – claims that are unlikely to be believed in any case. Judges might also be more sceptical about the realities of imprisonment and of what it could achieve even in the best of circumstances.  If we begin with a belief that prison is the standard for credible sentencing and that community sentences should therefore strive to be as prison-like as possible, we are already going in entirely the wrong direction.

The idea that tough community sentences would encourage sentencers to make less use of imprisonment is an aspiration with a very long history of failure, as Richard Garside has pointed out. Probation Services years ago tried to make their sentences tougher, with no discernible impact on the rate of increase in the prison population or on effectiveness in reducing reoffending. It could even be argued that tougher sentences can lead to more imprisonment. The tougher the sentence, the more demands that are made, the greater the chances of default; enforcement would have to be tougher as well (this is an inevitable corollary of tougher sentences – for an unenforced community sentence is no punishment at all) and the penalties for non-compliance would also be likely to be steeper – no doubt leading to more imprisonment. This is the formula:

Tough sentences  + tougher enforcement  =  more breach = more imprisonment.  

The most effective way to reduce the prison population is by reducing the length of sentences. This can be done without any compromise to justice or to public safety. Is this a challenge that judges can meet?

Too soft? So what would be the right punishment? (Part III)

Every week (and sometimes it seems like every day) the newspapers report on sentences that they suggest are too lenient. Often they quote victims who feel that the enormity of the crime is not sufficiently reflected in the sentence. But one wonders at what point victims would feel that justice had been done. One hears – he will come out after 10 (or 20 or 30) years, but I have lost my daughter for ever. But could any length of prison sentence vindicate their suffering and loss?

If we feel that the length of sentence is the only or the best way to do justice to the victim and offender, then we are likely to be dissatisfied and hurt by almost any sentence. We need to find other and better ways of honouring victims that do not rest upon the weight of the punishment.

Nathan Filer writes ‘… some things are too big. Any punishment is an insult to the crime.’  Nathan Filer (2013) The Shock of the Fall, London: Harper Collins: 260

Acceptable hatred?

While I am departing again from my usual reluctance to comment on particular cases, the case of Ryan Taylor is both appalling and instructive. Ryan Taylor is a serving prisoner who appears to have been brutally attacked in prison and gravely injured, having been left with ‘severe brain damage’. Dreadful things like this do happen, but what has especially prompted this posting is reflection on the reader comments that have been put on the website beneath the article in the Daily Mirror. There is a range of attitudes – more of a range than there was a couple of days ago   – but many people withhold any sympathy at all. Some are dismayed, but blame Mr Taylor for being in prison in the first place; others imply that the level of sympathy ought to depend on the seriousness of Mr Taylor’s original offence (why?). Yet others again seem almost to rejoice in his injuries. After all, to go online to comment ‘no sympathy’ is not  a neutral position, but  a clear expression of at least qualified approval. This seems extraordinary. It is plain that ‘offenders’ remain one of the very few groups (to the extent that they can be put together as a ‘group’) where hate speak is still considered acceptable and where serious injury is at least accepted and at worst celebrated. Part of the problem, of course, is that since Mr Taylor is ‘an offender’, he is in the minds of many ineligible to be a victim – even though he is plainly both. Since the Criminal Injuries Compensation Board continues to discriminate against offenders, the chances of his receiving adequate compensation appear remote. It will be interesting to see the public reaction if the family seek compensation.

Too soft? So what would be the right punishment? (Part II)

Harm is probably the first consideration when thinking about what someone deserves, but there is much more to it. We need to know how far the offender is to blame for that harm – their responsibility, their culpability. Most people think that, other things being equal, a deliberate wrong is worse than a reckless one, which in turn is worse than a  careless or negligent offence. Law and lawyers make these distinctions, but when we think about what’s deserved, there are other things that matter as well. Was an offence, even if deliberately intended, planned or impulsive (most people believe that a planned crime is more blameworthy than one on the spur of the moment)? In the case of an offence of violence, was this provoked in any way? Was the offender a leader or a follower in crime committed with others?  How much account should we take of youth and inexperience? What about poverty, hardship, a background of neglect or abuse?

Usually the answers to such questions are not plain matters of fact, but call for judgement. And a description of the harm that was done will not answer questions like these.

 

Too soft? So what would be the right punishment? (Part I)

We think we know when a sentence is too lenient. And sometimes (less often maybe) the news draws our attention to a case where the punishment looks like it may be too much. But what would be ‘the right’ sentence and how should we think about a question like that?

Imagine a robbery from a vulnerable victim. A fine doesn’t seem to be right. Perhaps the offender should go to prison. But for how long? Six months? One year? Five years? Ten years? And now it looks as if it might be becoming too tough a punishment. Most people will think that it depends. But what does it depend on?

One thing most of us feel is that justice requires that more serious offences are punished more severely than lighter ones. So you can’t give everyone a maximum or minimum penalty (whatever that is) because this would cause problems when deciding on worse or not-so-serious crimes.

Perhaps the most important thing to consider is the harm that has been done – not just amounts of money or, in other cases, the degree of injury, but also psychological pains. For example, being thrown to the ground could be a life-changing experience for someone, leaving them frightened to go out or even unsure about living alone. And in thinking about the harm of a property crime, the value of the theft seems to make a difference, but the loss of a sum of money that might be nothing much at all to some individuals or to a business might be disastrous for some people.  So maybe the first consideration is harm.