Is the criminal justice system fair?

Is the criminal justice system fair?

Arguments about justice or fairness have a long tradition in Western civilisation—no idea has been more consistently linked to ethics and morality than the idea of justice. Every major work on ethics has held that justice is part of the central core of morality. In its broadest context, justice includes both the attainment of ‘that which is just’ and the philosophical discussion of that which is just. What is just? That’s the question.

Advocates of divine command theory argue that justice is the authoritative command of God. God says murder is wrong and must be punished. Simple. Some versions of the theory assert that God must be obeyed because of the nature of His relationship with humanity, while others say God must be obeyed because He is goodness itself and doing what He says would be best for everyone. Take God out of the equation and we can turn to the laws of physics: the third of Newton’s laws of Motion requires every action to have an equal and opposite reaction. An eye for an eye, and all that.

John Stuart Mill thought justice derives from the ‘more basic standard of rightness, consequentialism’: what is right is what has the best consequences. Mills tries to explain our belief that justice is crucial by arguing it comes from two natural human tendencies: our desire to retaliate against those who hurt us, or the feeling of self-defence, and our ability to put ourselves in another’s place, empathy.

Social justice is concerned with the relationship between individuals and their society, and is associated with social mobility. It’s different from egalitarianism, which is the idea that all people are equal in status, value, and rights—social justice does not require equality. George C. Homans suggested the root of justice is that each person should receive rewards proportional to their contributions. But John Rawls claims justice is a form of fairness: an impartial distribution of goods. From meritocracy to socialism.

Interestingly, evolutionary ethics and an argued ‘evolution of morality’ suggests human perceptions of what is appropriate criminal justice are based on how to respond to crimes in the ancestral small-group environment—responses that may not always be appropriate in today’s societies. Additionally, the concept of fairness seems to be shared among species: studies at UCLA indicated reactions to fairness are ‘wired’ into the brain, with ‘fairness activating the same part of the brain that responds to food in rats.’ Is being treated fairly a basic need? Research at Emory University found capuchin monkeys also possess such a sense and that ‘inequality aversion may not be uniquely human.’

Studies found fairness activates the same part of the brain that responds to food in rats.

A necessary trait then, for individuals to exist harmoniously in a community. In a broad sense, justice could be inherent in nature itself, and could comprise rules common to all groups from whatever moral consensus that group prescribes to. Social justice requires both that the rules be fair, and that people play by the rules. When principles of justice operate ineffectively—or not at all—confidence in a society may be undermined and citizens may withdraw their commitment. Then you get the Arab Spring uprisings of 2010. Rawls stated the stability of a society depends upon the extent to which the members of that society feel they are being treated justly—when some members feel they are subject to unequal treatment, the foundations have been laid for social unrest, disturbances, and strife.

Applying these arguments to the criminal justice system is where things get tangibly interesting. There are three schools of thought around criminal justice: utilitarianism, retributivism and restorative justice. Utilitarians believe justice requires using whatever form or severity of punishment is necessary to protect society from harm—this may sometimes justify punishing the innocent or executing tax evaders to make a point and ‘set an example to others.’ Retributivists believe bad things need to be punished proportionally to the bad thing done—guilty people deserve appropriate punishment. Restorative justice focuses on the needs of the victims and offenders, instead of ‘satisfying abstract legal principles or punishing the offender.’ Offenders are encouraged to take responsibility for their crimes ‘to repair the harm they’ve done’ and the theory is based on crime being an offense against an individual or community rather than a state.

But what makes a punishment appropriate—and more importantly, just?

Research by Samuel and Moulds found there is widespread agreement among various demographic and political groupings in the general population of California concerning what constitutes fair punishment for crimes. This was compatible with the data from The US National Survey of Crime Severity conducted by the University of Pennsylvania: in a nationwide study, ‘subjects tended to agree about the severity of specific offences.’ When the study responses were compared to the penal code in California, it was found that ‘community standards were less punitive than existing law’, which the authors considered should ‘allay the worst fears of those who perceive the public as unreasonably harsh in its desire for retribution against offenders.’ One must wonder how the public would react if sentencing guidelines were lowered, however.

In England and Wales, deciding a sentence requires the court to consider the type of offence, the severity, the timing of any guilty plea, and the defendant’s character, criminal record and personal circumstances. The Criminal Justice Act 2003 created a framework for sentencing decisions and specifies maximum sentences for particular offences, with the Sentencing Council providing guidance. The Criminal Justice Act 2003 and the Coroners and Justice Act 2009 which saw the creation of the Sentencing Council are Parliament’s determinations of ‘that which is just’, with the Members of Parliament determined by the democratic will of the people.

In 1965, when capital punishment was suspended, Parliament decided that the sentence for murder is life imprisonment. While this could be subject to a tariff—whereby a person becomes eligible for parole after a certain length of time is served—the sentence is very much for life. Not only because after twenty, thirty, fifty years in prison, a prisoner may not have much time left to build a life, but because the parolee is still subject to supervision and reporting for the rest of their life, and will forfeit many rights and freedoms. Technically, they don’t have to violate any conditions for parole to be revoked; if it is determined they are a threat to society for any reason, they’re back in prison.

Is this fair? Is it just? Sometimes, the length of the sentence is subject to public scrutiny. In 1993, Robert Thompson and Jon Venables, two 11 year-old boys, were convicted of the murder of two-year-old James Bulger. The trial judge recommended the pair would have to serve at least eight years in custody, but the High Court set the minimum term at 10 years. In July 1994, Home Secretary Michael Howard raised this to 15 years, based in part on the public outcry over the murders. Myra Hindley is notable, not for her part in the Moors Murders with Ian Brady, but because her original minimum term was set at 25 years. Between 1997 and 2000, she made three appeals against the ruling imposed by Home Secretary David Waddington that life should mean life for Hindley in 1990. While the office of the Home Secretary was later stripped of its power to set minimum terms for life sentence prisoners—that decision now rests squarely with the High Court—public opinion was definitely on Waddington’s side. Opinion polls showed the majority of the British public was opposed to Hindley being paroled, and the tabloid media largely opposed her release as well.

In cases deemed egregious by the British public, it seems punishments need to be severe for ‘justice’ to be served.

The Ministry of Justice paper, Attitudes to Sentencing and Trust in Justice, starts by pointing out ‘attitudes to sentencing have changed little since 1996. Most people think the courts are too lenient… although most people underestimated the severity of current sentencing practices.’ The paper continues saying ‘public punitiveness manifests itself as the tendency to demand from the criminal justice system harsh punishment for convicted offenders—tougher sentencing in general, criticism of the courts for being lenient and supporting specific policies which emphasise punishment over other criminal justice objectives (such as rehabilitation).’ The findings suggest, however, this stems from the poor level of public knowledge about crime and sentencing in the UK. Men were found to be more punitive than women, non-professionals more punitive than professionals, those with degrees to be less punitive than those without, and tabloid readers more punitive than broadsheet readers—but when expressing a sentencing preference for a specific hypothetical case, ‘most people were relatively lenient.’ Paradoxical. The authors’ response? ‘When responding, people may respond with media stories of sentencing which tend to be unrepresentative.’ Shocker.

Further down the scale from the heinousness, we find the opposite: the public feels several British laws are stricter than they should be, with 96 percent of people disagreeing with the government ruling that TV licence fee-dodging will remain punishable with a prison sentence. People favour liberal reforms over persisting with tough sentences for drug possession and 50 percent thought taking illegal drugs shouldn’t directly lead to a prison sentence but to treatment for drug addiction instead.

Justice means one thing philosophically, and quite another in practice in England and Wales, with the public favouring a punitive mindset. But people will always react to the shock value of a crime. Murdering a toddler is abhorrent and the desire for punitive—and even retributive—justice is easy to understand; drug possession and lacking a TV licence don’t quite inspire the same horror. These attitudes aren’t likely to change.

But with more education and information, we might see justice take on a more lenient and restorative meaning. The Howard League for Penal Reform has said previously that the biggest challenge for prisons was ‘the punitive mindset of the public influencing government policy’ but access to information is helping people have greater faith in the fairness of the criminal justice system.