My First Reply to Martin Narey

Mr Narey is right that very few people enter the death penalty debate with any interest in changing their minds. I am a former longstanding opponent of the death penalty, who reluctantly changed his mind over many years, and even then took some time to admit this in public. I know full well that most educated people in Western countries now believe that support for capital punishment is a personal failing.

To them ( and not all that long ago it was so for me) It is not a point of view like any other, but a test of whether the person involved is decent and civilised, or cruel and barbaric. Imagine, therefore, the difficulty I had in admitting that I could no longer sustain my opposition. And imagine my impatience with the snooty scorn of my former allies, who had now become my opponents. Even so, I am used to it, and generally swim grimly through the curling waves of rhetorical slurry which come sloshing towards me whenever I raise the matter. I long ago gave up any hope of achieving the proper restoration of capital punishment in this country. If it does happen, it will happen under a populist despotism, in conditions I cannot possibly support. I only engage in the argument as an exercise in moral courage, because I’m not prepared to be silenced by abuse.

 

Anyway, to Mr Narey’s case. The research isn’t as inconclusive as all that. What one needs to establish are common measures of the sort of crimes that a death penalty might be expected to deter. I would define these as murders, or acts of extreme violence, undertaken by calculating people either in pursuit of another crime, or to silence witnesses, or to intimidate opponents. These might feature in the crime figures as murders, manslaughters, attempted murders or serious wounding. I’d add those done under the influence of drink or drugs, because I think a fear of the gallows might deter people from deliberately destroying their own inhibitions by voluntarily-ingested chemicals. Nicholas Ingram, the British-born murderer whose execution I witnessed, was said to have been under the influence of drink and/or drugs at the time he committed his crime. The law quite rightly did not see that as an excuse. If it did, the consequences would be large – and in my view bad.

 

In the same spirit, I would add the habitual carrying of lethal weapons, be they guns or knives, by criminals as a crime that could be deterred by an effective death penalty. Other sorts of murderous violence are probably so irrational that deterrence wouldn’t influence them.

 

So my first direct question to Mr Narey is ‘Does he accept the above description of crimes which might reasonably be deterred, if a death penalty deterred?’ If not, what would he add or subtract? Mr Narey says :’Punishment offers very little by the way of deterrence. I made no apology for treating those we incarcerate with decency and dignity. It’s about imposing our values, not succumbing to the values of those who harm and steal from others.’

 

*** PH : I reply: ‘ In what way is treating prisoners austerely , compelling them to work hard, and making their conditions so disagreeable that they will not wish to return to prison ‘succumbing to the values of those who harm and steal from others’?

Mr Narey then says : ‘But there would have been an interesting moral challenge to my determination to make prisons more decent places if the various experiments in the last thirty years with austere and physically demanding regimes had deterred offending. But they didn’t.’’

**PH ‘I am most interested in this statement. What were these experiments? Preferably without referring us to inaccessible journals written in Martian, can he tell us where and when they took place and for how long, what the controls were against which they were tested, and what happened? ‘

 

One can, by contrast examine the state of crime in this country when the prisons of England were in general places of austerity, discipline and hard work. Crime was much lower (see my book ‘A Brief History of Crime’) and so was the prison population.

 

Mr Narey says : ‘Offenders, overwhelmingly, don’t believe they will get caught. That is what we need to change. It can be done. The simplest example of that is the way that the habit of drinking and driving, something which countless law abiding individuals indulged in, was changed by the spectre of the breathalyser. It was never the case that there was a significant chance of being stopped on the way home from the pub. But individuals believed there was and this particular type of criminality diminished remarkably.’

 

**PH: ‘ My recollection of the introduction of the breathalyser is that the police made very great use of it at the start, and that many people were indeed caught, most people knew someone who had been, and that the belief in the likelihood of being caught was justified. What's more the penalties wer eimpsoed strictly. Comapre and contrast the feeble enforcement of the law agaisnt using a handheld phone while driving.

Further, is it the case that thieves don’t think they will get *caught*? Or is it the case that they know that even if they are caught, nothing much will happen to them. Mr Narey knows full well that very few people in this country go to prison until they have committed at least a dozen offences, many of which will have been dealt with by ‘cautions’ or various other empty gestures. The fundamental falsehood advanced by the modern Criminal Justice industry is the claim that people become habitual criminals while in prison. No, they become habitual criminals long before they arrive there.

 

He also knows, unless he’s very unobservant, that the Police and the CPS can’t be bothered with spending manpower on offences which are not prosecuted, or which, when prosecuted, result in trivial sentences. The general abandonment of, and devaluation of punishment which accompanied abolition of the death penalty has been followed by a large increase in crime, and a large decrease in penalties. Yet the prisons are bursting.

 

This can only be explained by an increase in the numbers of people ready to risk crimes. This can partly be explained by a failure of deterrence, partly by the general moral decay we are suffering(though that could itself be partly the result of the failure of deterrence) . Mr Narey’s DNA proposals are an interesting confirmation of my view that a society that refuses to punish wrongdoing, and excuses it as a social disease, will become a tyranny of surveillance, in which we are all presumed to be potential criminals and must be subject to intense state supervision for our own good.

 

 In the end, Mr Narey’s argument could also be a case for each of us having a barcode permanently tattooed on our foreheads, so as to make identification easier. In a free society, you may keep the law, and you will never hear from the state at all, which is your servant and your ally in the maintenance of peace and order. Break it, and you are punished hard.

 

In Mr Narey’s society, crime is a disease which anyone may catch at any time from economic conditions, bad housing, child abuse, ‘addiction’ (or whatever other excuse is currently fashionable). Therefore it is wise to assume that all are potential offenders, and to have our fillings, lymph glands, blood groups, DNA, hair follicles and eye colour on file in case they offend.

Well, here I must be subjective. If this idea doesn’t make your blood boil, then in my view there is just something fundamentally wrong with you, and you have no respect or gratitude for our ancestors who squeezed Magna Carta out of King John, forced the abolition of Star Chamber and High Commission, opposed Ship Money, achieved the Petition of Right, established Habeas Corpus, safeguarded jury trial and the presumption of innocence, ended the oppressive use of criminal libel and – perhaps above all – defeated James II’s attempts to make us into a continental despotism and secured the 1689 Bill of Rights. These are the things that make us Englishmen, and which distinguish the English system of liberty from the rest of the world.

 

As George Orwell so magnificently said (though he didn’t quite like to see it through to its conclusion) : ‘..the gentleness of English civilization is mixed up with barbarities and anachronisms. Our criminal law is as out-of-date as the muskets in the Tower. Over against the Nazi Storm Trooper you have got to set that typically English figure, the hanging judge, some gouty old bully with his mind rooted in the nineteenth century, handing out savage sentences. In England people are still hanged by the neck and flogged with the cat o’ nine tails. Both of these punishments are obscene as well as cruel, but there has never been any genuinely popular outcry against them. People accept them (and Dartmoor, and Borstal) almost as they accept the weather. They are part of “the law”, which is assumed to be unalterable.

‘Here one comes upon an all-important English trait: the respect for constitutionalism and legality, the belief in “the law” as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible. ‘It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor. But no one accepts the implications of this, everyone takes it for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not. Remarks like “They can’t run me in; I haven’t done anything wrong”, or “They can’t do that; it’s against the law”, are part of the atmosphere of England. The professed enemies of society have this feeling as strongly as anyone else. One sees it in prison-books like Wilfred Macartney’s Walls Have Mouths or Jim Phelan’s Jail Journey, in the solemn idiocies that take place at the trials of Conscientious Objectors, in letters to the papers from eminent Marxist professors, pointing out that this or that is a “miscarriage of British justice”. Everyone believes in his heart that the law can be, ought to be, and, on the whole, will be impartially administered. The totalitarian idea that there is no such thing as law, there is only power, has never taken root. Even the intelligentsia have only accepted it in theory.

 ‘An illusion can become a half-truth, a mask can alter the expression of a face. The familiar arguments to the effect that democracy is “just the same as” or “just as bad as” totalitarianism never take account of this fact. All such arguments boil down to saying that half a loaf is the same as no bread. In England such concepts as justice, liberty and objective truth are still believed in. They may be illusions, but they are very powerful illusions. The belief in them influences conduct, national life is different because of them. In proof of which, look about you.

 

'Where are the rubber truncheons, where is the castor oil? The sword is still in the scabbard, and while it stays there corruption cannot go beyond a certain point. The English electoral system, for instance, is an all-but open fraud. In a dozen obvious ways it is gerrymandered in the interest of the moneyed class. But until some deep change has occurred in the public mind, it cannot become completely corrupt. You do not arrive at the polling booth to find men with revolvers telling you which way to vote, nor are the votes miscounted, nor is there any direct bribery. Even hypocrisy is a powerful safeguard. The hanging judge, that evil old man in scarlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England. He is a symbol of the strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape.’