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.