are increasingly being given life sentences not for crimes they have committed,
but to protect the public from their possible future behaviour. Soon our
prisons will hold more people in such preventive detention than murderers.
That’s what the
a fundamental change in penal policy is gathering pace. The main factor in the
length of a sentence is, increasingly, not the severity of a crime, but the
supposed risk that an offender will do something worse if released.
is at best an inexact science – often, as we shall see later, shockingly so.
But its emerging role in the sentencing process is having dramatic
consequences: hundreds, soon to be thousands, of petty arsonists, pub brawlers
and street muggers are in effect being given life, usually on the basis of
highly subjective pre-sentence reports.
models predict that by 2011, there will be 12,500 inmates serving IPPs – more
than three times as many as those doing life for murder.
That’s how the
Gestapo got rid of petty criminals, to begin with. They then devised the Concentration Camps,
because they too ran out of prison places.
published by the New
Statesman will shock you if you believed that in the UK you were innocent before being proven
guilty, if you believe that the punishment should fit the crime, or even if you
believed that in the UK that freedom and liberty are rights that
cannot be challenged.
Philip K Dick wrote of a
system governed by the notion of “precrime”, where people who had yet
to do anything wrong were convicted and sentenced because the authorities
“knew” they would.
Dick was writing science
fiction, but even minus his “precogs” – weird beings with the gift of
second sight – the precrime world is already here. It shows every sign of
becoming an authoritarian dystopia.
This comment seen
on the Magistrates
By chance I
recently met a member of the Parole Board, and this subject came up. He was
very unhappy about it, saying that before an IPP prisoner can be considered for
release at the end of the minimum term he will need to be assessed and that the
resources to carry out these assessments simply do not exist in many prisons.
He was adamant that almost no prisoner will just serve the minimum, and that
many will stay inside for years simply for lack of anyone to carry out the
Did the Gestapo
Detention was the mainstay of the Gestapo doctrine.
Basic notions of
fundamental fairness in the enactment of criminal legislation simply didn't exist.
Ex post-facto laws were common; people could be punished for acts that were not
even criminal when they were committed. Indeed, people could be punished even
for acts that were never made expressly criminal if such acts were
“similar” to those that were (doctrine of analogy in criminal law).
The state had the right to appeal an acquittal or what it regarded as a lenient
sentence. or it could simply forego the appeals route altogether and invoke
preventive detention. Contrary to the central idea that conduct proscribed as
criminal should be identified with specificity, criminal statutes were often
phrased in vague, general terms that could, and often did, apply to virtually
anything giving defendants no advance warning that their conduct could be prosecutable.
The question of
whether widespread legal resistance would have made a difference. On one level,
of course, the answer may be irrelevant. The duty to oppose evil does not
depend on any calculus of success. On another level, I would submit that
resistance may very well have been effective. Particularly in the early years
of the Reich, the 1935-1936 period when Hitler was still consolidating his power,
the legitimation of his decrees by the courts and the legal profession was a
crucial element in extending the government's authority. Each small victory,
each incursion into personal liberties without protest enabled Nazism to extend
its insidious tentacles further. The policy of appeasement in domestic affairs
worked as effectively as it later did in the area of foreign policy with the
same disastrous results. Perhaps more so than for any other segment of German
society, the judiciary's abdication of responsibility was not only a personal
moral failure but a catastrophe for the world at large. If anything, this
should teach us to be vigilant about our own liberties).
“The further back you look, the further forward
you can see.” (Winston Churchill)