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Justice and Predjudice
No one, I think, would regard as excessive the sentences meted out to the two killers of Stephen Lawrence. Indeed, no one would really have objected (except from the legalistic point of view) if they had been sentenced to very much longer, or even to remain in prison for the rest of their lives without possibility of release. To have done what they did was not a spur-of-the-moment mistake, such as anyone in a moment of passion might make; it was a sign of a deep-seated and ill-resisted propensity to do, and to enjoy, the commission of evil.
Initially, I must confess, I had doubts about the propriety of the abandonment of the ancient, indeed immemorial, principle of double jeopardy, according to which a man cannot be tried twice for the same crime; but a judge of my acquaintance persuaded me that my doubts were needless, for the law provides sufficient safeguards against the arbitrary use of the new powers to retry for the same offence. The latter, to qualify, must be a very serious one, and the evidence upon which the renewed prosecution relies must not only be completely new and unused, but prima facie compelling. He assured me that this was a slippery slope down which we did not have to fear to slide.
The day following the sentencing, the Guardian published an editorial with the title Late but fitting punishments. One could not but rejoice at this conversion to the notion of fitting punishment on the part of those who have so often denied, implicitly or explicitly, the very rightness of the concept of fitting punishment: but the question not asked and therefore not answered was "What made this punishment fitting?"
Whatever else made it fitting, it was not its therapeutic quality. Suppose that, six months or a year into their sentence, it were decided that the two convicted men had turned over a new leaf and were unlikely to return to their evil ways. Would we then say it was right to release them? (I disregard for the moment the very impossibility of reliable prediction as to their chances of returning to their criminal ways. Several people are killed every year by people who have killed before and have been released from prison, presumably on the best predictive advice available.)
This means that imprisonment is not primarily a therapeutic manoeuvre. It is not psychotherapy, let alone an operation. Of course it would be very nice if prison had a therapeutic effect, as in a certain sense it does: the evidence suggests that longer prison sentences are followed by lower recidivism rates.
But the recidivism rate after release from prison is the wrong measure of the value of imprisonment, although it is now deeply inscribed as such on the minds of the population, especially intellectuals. The purpose of prison is to provide fitting punishment, to prevent crimes that would otherwise be committed by people who would commit them if free to do so, and deterrence of those who waver as to whether to commit crimes or not. In some cases, a crime is so heinous that it is the fittingness of the punishment alone that should determine its severity or length; and the murder of Stephen Lawrence (as indeed many other crimes) falls into this category. Even had the convicted men devoted themselves after their crime entirely to making books for the blind and helping old ladies across the road, they should still have received the sentences they received.
The editorial has a sentence that particularly caught my eye, for its implies that the newspaper has now been converted to the science, or what is usually regarded as the pseudoscience, of physiognomy. Referring to the fact that the convicted men, now fully adult, were sentenced to lower terms of imprisonment because at the time of their crime they were less than 21, the editorial said:
But it would of course have been preferable if justice not been deferred to the point where the culprits were adults with hard lives etched deep into their faces.
I leave aside the newspaper's implied view that, had they been sentenced earlier to prolonged prison sentences, their faces would have been preserved from such etching - in contradiction to the usual claim, by those who are against imprisonment as a response to crime, that prison only makes people worse.
The adjective "hard" is surely a euphemism. If you examine the faces in photographs of people in the past who undoubtedly had very hard lives, much harder from the purely material aspect than those of the two convicted men, such as, say, coal miners, you will not see such "etched" faces among them. Indeed, if you look at the pictures in Mayhew's great book on the London poor of 1851, you will not see such faces either. What the Guardian means when it says ‘hard lives’ is ‘brutal and criminal lives.’
Now the Guardian is quite right in saying that the brutality and criminality of these people is etched on their faces: you don’t get faces like that direct from nature, you get them from biography. And if you saw such men in the pub, or walking down the street, you would do your best to avoid them.
The fact is that Britain is now more richly-endowed with such faces (if richly-endowed is the appropriate term) than any other country known to me. Walk down any street, observe any Friday or Saturday night in any British town or city, and you will see many of them. The faces are brutal and criminal because our culture is brutal and criminal.
Let us leave deeper enquiry aside. What is interesting is that, by saying that the faces of the culprits have their lives etched on their faces, the Guardian is implicitly endorsing the necessity, inevitability and wisdom of prejudice and discrimination. A person who failed to take notice of what is "etched" on the faces of the two convicted men would not be saintly, but a fool worthy to be Archbishop of Canterbury, even if not everyone with the face of a thug is actually a thug.
The desire to have no prejudices is therefore absurd, both because in practice it is impossible and because it is the desire to be a fool. The point is not to have no prejudices, but to be aware of them and also to have the constant mental flexibility to override them if the evidence requires it. That people can put aside their prejudices is, after all, the basic principle of the jury trial. People are not to be convicted because they have nasty faces etched by nasty lives, but because the evidence proves that they did what they are accused of having done. But even if acquitted, we still avoid people with nasty faces, and usually (though not always) rightly so.
First published in Social Affairs Unit.