Ken Clarke has scored an own goal with sentencing when applied to rape, and so Miliband punished Cameron during PMQs last week in full knowledge that he had the backing of public opinion. ‘Rapists are scum and we should lock them up and throw away the key’ say the public. It was an easy win. Rape can and should be an exception to the guidelines regarding reduced tariffs for guilty pleas and Labour is right to criticise Clarke’s proposals on these grounds. Clarke’s and Cameron’s argument, that offering a bigger reduction is more likely to result in the guilty pleading guilty, is also open to the criticism that it is also more likely to result in the innocent pleading guilty.

The week before Clarke’s blunder, the issue of prisoner votes came up during that week’s PMQs and this time the Conservatives revelled in the full backing of public opinion. ‘Why should prisoners be given the vote?’ cry the public. ‘Don’t commit crimes if you want to vote’ they say. Cameron says the idea of giving prisoners the vote makes him feel sick. Labour’s response to date?! A free vote in the Commons. Labour, as with AV, refused to take a stand. Labour didn’t want to go against public opinion. Labour was wrong to do so. Notwithstanding the short term political hit on the issue, in the long term this position could have been turned to Labour’s advantage.

Both issues are ones of sentencing, and sentencing in turn is an aspect of our criminal justice system. When asked what criminal justice actually is, the public’s response varies and their often instinctive and emotional reaction to an issue of criminal justice is not necessarily in the interests of criminal justice as it should be applied in a democratic society. Without a cohesive understanding of the principles behind sentencing, it will not be possible for any political party to truly formulate a response to the public when what is required to achieve justice is not the spilling of blood that the public cry for.

Broadly speaking, criminal justice systems throughout the world approach punishment in order to achieve one or more of five objectives in relation to an activity that society has deemed criminal, from speeding to murder. Of these five, only three are appropriate in a democratic society, and they are:

A. Public security: primarily achieved through imprisonment. If someone poses a risk to person or property, lock them up where they can’t harm the outside world. To apply it to the two issues in question, if someone is at risk of raping someone on the outside, they should be locked up until they cease to be such a risk, even indefinitely. However, I fail to see how a blanket restriction on prisoners voting protects the public from murder or theft and so on without such arguments leading, effectively, to political control of that prisoner (see below);

B. Rehabilitation: in layman’s terms, taking someone who was an offender and, through the process of punishment, making them less likely to offend again. Arguably, on a case-by-case basis, keeping rapists in prison longer may achieve this but of course this is predicated on the effectiveness of prison as a rehabilitative tool for sexual offenders. Does denying prisoners the vote make them less likely to reoffend upon release? Common sense would tell you it does not, and, in fact, the blanket approach to vote denial (which is what the ECHR object to; it has no issue with denying some prisoners the vote on a case-by-case basis) removes the possibility of a ‘carrot and stick’ that could be utilised during rehabilitation;

C. Deterrence: in short, if you do X, then you will be punished by Y, so don’t do X; this applies to deterring the accused/convicted and the public at large. Clearly this is the message that is sent by making rape an exception to tariff reduction. However, in a century or more of denying prisoners the vote, has any potential offender said to himself ‘I must not burgle that house or else I will lose the vote’? I think not.

It is important to stress that simply satisfying any of these aims does not make a punishment democratically acceptable, but it cannot be democratic without satisfying these three aims. The two aims not acceptable to a democratic society are:

D. Political Control: countries around the world punish or lock up people to ensure that those in power (government, a political class et cetera), stay in power. I don’t think I need to elaborate further on why this is not acceptable in a democracy; and

E. Revenge: this is what people classically confuse criminal justice with, but it is a very different concept and has no place in our criminal justice system. However, many criminal justice systems have policies that rest primarily on revenge as a justification (eg the death penalty, as applied in the United States), notwithstanding that those countries aim to be democratic in nature.

Revenge is a purely subjective and largely emotive concept, meaning something different from person to person. We don’t want our judges spitting and cursing, their minds clouded with anger when they convict and sentence someone. We want them to be cool, rational and objective in their approach to increase the likelihood that each judge would give the same sentence for the same crime (something the criminal justice system is still working on).

What’s more, criminal justice focuses on the accused/convicted. That is not to say that the feelings of and harm done to the victim is irrelevant to criminal justice. On the contrary, victims’ evidence of the crime is relevant to ascertaining guilt and furthermore their suffering caused by the crime will be relevant to ensure that any sentence passed will be commensurate with achieving one or more of aims A, B or C above (hence why it is appropriate for victims to give statements at sentencing). However, the fact that a victim might want to get back at an offender is not of itself relevant to sentencing. Only the reasons why they want revenge are relevant.

When Cameron says he feels sick at giving prisoners the vote, he’s talking about revenge. He’s saying that because a prisoner has caused harm, we should hurt them as much as possible. An ‘eye for an eye’ cry advocates of revenge as a basis for justice, yet any theologian will tell you that the bible was referring to rehabilitation with that statement, not revenge. As no coherent argument can justify a blanket restriction on prisoners voting based on rehabilitation, deterrence or public security, this leaves only political control and revenge as a justification. The blanket restriction should therefore be lifted and prisoners should only be denied the vote as and when such denial achieves one or more of aims A to C above.

It’s easy to see why a rape victim would want revenge. However, Labour does not need to rely on a victim’s pain to justify opposing the Conservatives’ plans (as politically desirable as such empathy might be); Labour can rely upon the need to protect the public and to deter other offenders. What’s more, in all aspects of criminal justice and sentencing, it should ensure that it is only ever concerned with protecting the public, deterring crime and rehabilitating offenders.  

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