Thursday, October 27, 2011

Two strikes...and you're out

The Justice Secretary, Ken Clarke, is to reveal plans that anyone convicted twice for a serious sexual or violent crime will receive an automatic life sentence. Other changes reported by the BBC include:

"[. . .] 1. Extending the category of the most serious sexual and violent offences to include child sex offences, terrorism offences and "causing or allowing the death of a child" so that the new provisions will apply to them.

2. The Extended Determinate Sentence (EDS) - all dangerous criminals convicted of serious sexual and violent crimes will be imprisoned for at least two-thirds of their sentence, ending the regime which allowed the release of these offenders at the halfway stage.

3. Offenders convicted of the most serious sexual and violent crimes in this category will not be released before the end of their sentence without parole board approval.

4. Extended licence period - criminals who complete an EDS must then serve extended licence periods where they will be closely monitored and returned to prison if necessary.

5. Courts have the power to give up to an extra five years of licence for violent offenders and eight years for sexual offenders on top of their prison sentence. [. . .]"

It's unclear what the biggest effect will be on the criminal justice beyond the following:

a. Criminal justice will cost much more.
At a time where the government tells us about the need to tighten belts (and the Chancellor tells government departments to make big cuts), these proposals are certain to increase costs. This is for two reasons. The first reason is that there will be more persons serving life sentences. So there will be higher costs for their maintenance, etc. The second reason is that there will be likely higher costs pertaining to trials. If a second offence did not lead to a mandatory life sentence, then some criminals might continue to enter plea bargaining. The overwhelming majority of criminal cases are settled through plea bargaining. However, if a second offence did lead to a mandatory life sentence, then more criminals would be more likely to contest the charge(s) to avoid a mandatory life sentence. So expect court costs -- and imprisonment costs -- to rise.

b. Perhaps not much else will change.
Law-abiding citizens may look at these proposals and believe the government is getting "tough" on crime -- and the measures include the headlines grabbing "mandatory life sentence" tag. However, it is unclear to me what big difference the other changes will have on reducing crime.

c. The Justice Secretary is weakened.
Only yesterday, Ken Clarke argued that mandatory sentences were essentially un-British and that judges should have wide powers of discretion. Anyone who knows anything at all about criminal justice and punishment knows that the fairly categorical judgements members of the public might have about punishment (e.g., "all criminals who do x should . . .") significantly change their position the more they learn about the particulars of a specific case. In the effort to "look" tough on crime (by viewing crimes as monolithic), the measures may contribute to problems elsewhere including the failure to get right the crucial "fit" between a specific crime and its punishment. Proportionality is necessary to getting fit right -- and it is an imprecise art. Clarke does not seem in full control of policies coming from his own department in light of remarks made only about 24 hours ago. This is a pity because -- however better it could have been sold -- he had been instrumental in helping to make the important case for restorative justice, a case that now looks on the way out almost as fast as it was on the way in.


Jamie said...

The Guardian quotes Clarke as claiming the two strikes rule will affect only 20 cases per year - not a big impact on costs.

Also your first sentence should really say "anyone convicted twice".

However, overall I agree that allowing judges and magistrates to exercise discretion is a good thing, and most who have ever been involved in the criminal justice system agree.


The Brooks Blog said...