Subj: UK: Sco: Opinion: The more mothers we jail - the more children

will follow



Date: 20 Feb, 2000



Source: Scotland on Sunday



Author: Lord McCluskey (3rd and last in series)







The more mothers we jail - the more children will follow



We have some of the harshest sentencing in Europe. In the

last of his series, Lord McCluskey, Scotland's most

outspoken judge, examines the high cost of proving crime

does not pay



ONE of the most difficult things that a judge of the High

Court has to do is to pass sentence on a person convicted

before him. The crimes and offences brought to the High

Court are those regarded by the Lord Advocate as the most

serious: he chooses which court to prosecute in, though some

of the worst crimes, such as murder and rape, must be

prosecuted in the High Court.



Once a person has been convicted in the High Court it is

likely that he (it's usually a he) will be sent to prison

for a period of years. To jail a man, often a young one, for

years can be an agonising and distressing thing to have to

do, not because he does not "deserve" to suffer for his

crime - he almost invariably does - but because the judge,

who beneath his judicial robes is still a human being, hates

to see a young life destroyed by the sentence he has to

impose.



What the judge commonly learns when the accused's life

history is revealed to him is that the offender has emerged

from a background of poverty, neglect, poor parenting and,

all too often, sexual and physical abuse. He has been as

much sinned against as he is now sinning. The judge also

realises that in many cases it is not only one life that

will be destroyed by imposing a heavy sentence. There will

usually be other family members dependent in some way upon

him. The judge's human instincts cry out for a better way.



But this factor, the Pity factor, while it may point to

leniency, is unlikely to play as big a role as what I might

call the Outrage factor, more commonly referred to as

Retributive Justice. When a man is convicted of rape, or of

a deliberate and planned armed robbery in which violence is

used, or of prolonged sexual abuse of the young, then

society justifiably feels a sense of outrage at the

uncivilised barbarity and wickedness of it.



There are many crimes that produce this sense of outrage,

and nowadays it is sometimes heightened, even for judges, by

the showing of televised recordings of the events

themselves. People feel sickened by crimes that result in

the suffering and humiliation of others, especially the

young, the old and the vulnerable. The judge would be

failing in his duty if he did not try to reflect that sense

of society's disgust and outrage by imposing a sentence that

will really hurt the offender.



Then he has to take into the reckoning what is usually

referred to as Comparative Justice, or consistency. Justice

has to try to be even-handed. If two people appear before

the court for the same crime, the judge has to have very

good reasons indeed for imposing different penalties on

them, even though experience teaches him that no two cases

are exactly the same and that often two cases which are

superficially indistinguishable are wholly different in

their essence. Too often, the reporting of cases fails to

detail the significant differences between them.



The need to strive for consistency at once raises one of the

most important considerations in the current debate about

the imprisonment of women. The government wants the number

of women in prison to be greatly reduced. That is a policy

aim that most of us would heartily endorse. But wait a

moment. If two people commit the same crime, normally

meriting imprisonment, is one to be imprisoned and the other

not, simply because one is male and the other female? If

word got around among the criminal classes that women were

to be punished less severely than men for the same crimes a

lot more women would find themselves recruited, willingly or

not, into planned crime to reduce the risks to the men.



It is well known, of course, that women are less likely than

men to engage in the worst crimes of violence involving the

use of weapons. But in drugs cases, women often play a

substantial role. The courts would rightly come in for

criticism if they treated drugs offenders differently purely

on the basis of their sex. On the other hand, if women

offenders appear before the court and plead that their

children will suffer if their mother is locked up, it is

pretty difficult to ignore that factor. One is tempted to

say, "You should have thought of that before you committed

the crime" - but, however satisfying it may be to utter such

a response, it would be quite wrong to ignore society's

interest in not depriving young children of their mother by

putting her in prison, particularly when the only real

alternative to care by the mother is for the children to be

taken into 'care'.



Too often the innocent children would be made to suffer. And

we all know that the children of parents who have been to

prison have a higher than normal chance of going to prison

themselves. The more mothers we send to prison now, the more

of their children will be sent to prison by those who sit in

judgment in 20 years' time.



So if a judge lifts his eyes a little beyond the immediate

case and thinks about the social consequences of what judges

are doing in similar cases he has to begin to wonder if he

is perhaps little more than an accomplice in a system that

is piling up problems for succeeding generations.



Without doubt, however, the judge must try to achieve some

consistency between his sentences and those imposed by other

judges. If judges are at sixes and sevens in relation to the

same type of crime, then people are going to lose respect

for the justice system. The public are alerted by newspapers

and by victims to perceived inconsistencies in sentencing,

though too often the perception is based on a flawed

understanding of the whole facts. The same imperfect

knowledge is often behind the public's criticisms of the

levels of sentence, leading to assertions that judges are

being too 'soft'. In Scotland, whether you like it or not,

they are as severe as any in Europe.



THEN there is deterrence. It is widely believed, or at least

frequently said, that one of the purposes of punishment is

to deter others from committing the same crime by sending

out a 'message' to the would-be offenders that if they do

the same crime they'll get the same punishment. I have the

gravest doubts about the validity of that belief in relation

to the most serious crimes, such as rape, assault and hard

drug abuse. I have yet to see any clear evidence that would-

be criminals are eagerly awaiting the latest 'message' from

the judiciary.



One of the enduring myths of popular Scottish criminal

history is that Lord Carmont stamped out razor slashing in

Glasgow half a century ago by imposing heavy sentences in

razor slashing cases in the High Court there. The better

explanation is that when Gillette invented the two-edged

safety razor the old Sweeney Todd instrument went out of

fashion and disappeared from the streets. Weapon assaults

didn't.



I believe that the notion that sentences passed in court act

as a deterrent is an improbable one. There is no real

evidence to support it. Deterrence is a rather middle class

idea. Of course, a respectable citizen who has led a

blameless life would be horrified by the thought of going to

prison. But it isn't that thought that keeps him from

committing crimes like murder, rape and arson. It is rather

something in his whole approach to life that prevents him

from engaging in conduct that he would find unconscionable

and repellent.



That something is simply not there in the case of many young

offenders. In my experience, the only deterrence that works

well is the immediate deterrence that applies when a judge

defers sentence and tells the accused to his face that if he

gets into trouble he will go straight to jail.



For most people - even if the crime is one less morally

offensive than rape or serious armed violence, for example,

fiddling the books or stealing from the employer - the real

deterrent is not the fear of the punishment. It is the fear

of being found out, sacked and publicly condemned. The best

deterrent is the fear of being found out. And that fear is

shared to some extent by the young offender. If the risk of

detection is very high then the would-be offender - if he is

in a state to think at all - is going to think very hard

before taking the risk. If the risk of detection is low then

he is much more likely to take his chance.



That consideration has, I believe, an important bearing upon

our current policy of criminalising conduct which is very

widespread but not in itself morally repugnant, and is not

perceived to be harmful to others, conduct such as buying

alcohol in the Prohibition years, or using soft,

recreational drugs. It is important because successful

police work depends very heavily upon winning the co-

operation of the public. Yet we now have substantial numbers

of people, and their numbers are growing, who have engaged

in such conduct believing that it should not be unlawful.

And some of them will have been alienated from law

enforcement by that experience. Many will know also that the

law operates very haphazardly in relation to the detection

of crimes and offences associated with such drugs. For every

one that gets caught, hundreds do not.



So justice operates on the principle of the lottery: it

could be you, but it's pretty unlikely.



This is a very poor basis for creating a citizenry that

respects the law and will co-operate with the police to try

to enforce it. We have seen that on a large scale in

Northern Ireland where the RUC did not have the respect of

the Nationalist community which declined to co-operate with

the police. Nor would they co-operate with the criminal

justice system when cases came to court. The result was that

the government had to abolish the right to jury trial in

certain types of case and to use instead the 'Diplock'

courts in which judges sat, even in the most serious cases,

without juries. The same phenomenon of a large community

losing respect for the law is evident in many parts of the

US where ethnic minorities often feel discriminated against

by the police and the legal system. Criminalising certain

types of conduct simply prejudices the general fight against

crime.



I have mentioned the charge that is often made against

judges, to the effect that they are soft on criminals. It is

just not true. At the date of the last Prisons Report, in

July last year, there were 874 prisoners inside serving

sentences of 10 years or more (including lifers). The

percentage of population jailed in Scotland is still the

second highest in Europe, and that is despite the decisions

made in parliament to free most prisoners when they have

completed half or two thirds of the sentence the judge has

imposed.



I make no criticism of the parole system we have: it was

introduced as recently as 1993 by the last government after

studying for years the recommendations of careful studies of

parole both in Scotland and in England.



One of the important considerations was that of cost. We

know that prison costs UKP26,000 per prisoner per year.

There are other costs, and the overall total cost of our

prisons was UKP186m in 1998/99. When you consider what else

could be done with that money, you have to ask if the

policies that result in such severity of sentencing need to

be re-examined. Those who imagine that judges are soft on

criminals should explain where in Europe the judges are

harder, and whether the money to build and staff even more

prisons is to come from the health budget or the schools

budget. Nor is there any conclusive evidence that mass

imprisonment produces any significant reduction in crime

rates. There is a good deal of evidence that it does not.



A judge would dearly love to serve the public interest by

prescribing rehabilitation programmes so as to ensure that

when the prisoner is eventually released he will be less

likely to reoffend. Rehabilitation is supposed to be one of

the primary aims of imprisonment. Alas, it is too often a

pipe dream.



Far too many released prisoners return to prison quickly,

and do so again and again. They have not been rehabilitated;

they have not been deterred. They have just been recycled,

at enormous cost. I found it deeply distressing week after

week to see young people passing through the criminal

courts, wasted by drugs and alcohol, untrained and

unemployable, looking forward to nothing other than a

continuous cycle of crime, drug misuse, detection and

imprisonment. Small wonder that the suicide rates are so

high in the areas where drug abuse and street crime are

endemic.



We spend hundreds of millions on prisons, criminal courts,

social work supervision and police work. It is far from

clear that it could not be better spent if we really worked

on rehabilitation.