The three most popular justifications for punishment under the law all (as it happens) begin with R. They are retribution, rehabilitation and removal. But the fourth and to my mind the most important seems to have fallen rather out of public consideration. Yet that fourth, deterrence, is by far the best reason for the investigation and interrogation of Shamima Begum and — if there is a case against her to answer — her detention and trial.
Leading all other reasons for the prosecution according to due process — and, if convicted, the punishment — of those who may have committed a criminal offence is deterrence: the discouragement of others who may be tempted to commit similar offences. I can’t understand why more is not being made of this.
I should make clear at the outset that none of us knows whether Begum is guilty of any criminal offence and nobody should imply otherwise. The vigorous national debate now underway about what to do with her must be understood as hypothetical — if she has committed an offence, what should follow? — and this is what I now discuss. First to the three Rs.
Retribution is at the same time the most immediate and the most powerful impulse. That it is atavistic does not invalidate it. The hunger for justice is itself primitive in the sense that it runs deep and starts very early in a child’s life, and with it (let us be honest) runs a desire to see offenders hurt, which is to say punished. This is not the same as deterrence. If the last man on earth were also a murderer, there would be no point in trying to deter others from homicide; but something in us would still like to see him pay for his crime, if only at the Pearly Gates.
The wish to see offenders rehabilitated is more sophisticated but no less powerful. Our society is both improved and protected if our prison and sentencing system can achieve this.
As for removal, I have to acknowledge that ‘lock ’em up and throw away the keys’ strikes a chord with many; and Tory home secretaries at Conservative party conferences have for decades milked applause by remarking that every criminal inside is one fewer criminal outside. It doesn’t really make a lot of sense, unless we want to see anyone convicted of any grave crime locked away for life, but there’s enough truth in the observation that so long as a violent criminal is in prison we are all a bit safer, for the argument to have some purchase on the public imagination.
Turn now to Begum’s case (and supposing she were guilty). Could she be rehabilitated? Not impossible. Could she be removed from circulation, or at least kept under surveillance? Undoubtedly. But I have no doubt that what fuels the public and media clamour that she should face justice is not really a wish to see her reformed, still less a lively belief that, at liberty, she’s likely to prove a major future threat to homeland security. No, what people instinctively want is retributive justice: there is anger against people like her and a desire to see she gets her just deserts. To see someone suffer who might have caused great suffering to others would provide a measure of satisfaction to many.
I repeat: I do not say this is illegitimate, though many students of jurisprudence would. Retribution runs deep in the human animal. Our criminal jurisprudence, while being habitually a bit sniffy about retribution as a driver of justice, relies on the instinct to help animate the public’s desire for justice, support of the police, acceptance of jury service and confidence in the rule of law. So seeing Begum (were she guilty) suffer would do something to encourage public belief in the administration of justice, and in fairness generally.
But it cannot be the main reason why the state goes to the expense that it does to bring people to justice and punish them if they have broken the law. The best and strongest reason to catch and prosecute criminals is to deter other potential criminals. One criminal apprehended and put behind bars may be one criminal fewer on the streets, one criminal more with the chance of rehabilitation, and one more smile of grim satisfaction on the faces of the virtuous. But potentially it is also a hundred thousand potential offenders deterred from taking their chances. Make an example of someone. Every schoolteacher knows it works, and every legislator should know this as well.
Too much attention is given in our era to ‘victim’ justice and to ‘offender’ justice: in short to the small number of individuals with a direct and personal interest. It matters of course that victims should generally feel satisfied that those who have offended against them get the punishment they deserve. It matters too that those who offend are fairly tried and sentenced, and treated with humanity throughout. But we must never lose sight of what matters most: that the world sees what happens to those who break the law, and draws the appropriate conclusions.
Voltaire laughed at the English for executing the unfortunate Admiral Byng ‘pour encourager les autres’ but if he was mocking the concept of deterrence, he was wrong. There is an important sense in which the law is not really there for the victim, and nor is it really there for the accused. It is there for wider society to see and take note. Celebrated court cases are undoubtedly real stories about real people: but they are also parables.
If three immature schoolgirls in Bethnal Green were seduced by an apparently romantic and apparently exciting idea of serving a warped version of their faith through a foreign adventure — and followed through — how many thousands more adolescent boys and girls across Britain will have felt and even thrilled to the temptation, but thought better of it and never followed through? These are the youths and children who must be at the centre of our focus as we deliberate on what to do with the likes of Shamima Begum.
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