Simple Justice Simple Justice Charles Murray Commentaries Rob Allen John Cottingham Christie Davies J.C. Lester Tom Sorrell Vivien Stern Edited by David Conway Civitas: Institute for the Study of Civil Society in association with the Sunday Times London Registered Charity No. 1085494 First published June 2005 © The Institute for the Study of Civil Society 2005 77 Great Peter Street, London SW1P 2EZ email: [email protected] Independence: The Institute for the Study of Civil Society (CIVITAS) is a registered educational charity (No. 1085494) and a company limited by guarantee (No. 04023541). CIVITAS is financed from a variety of private sources to avoid over-reliance on any single or small group of donors. All publications are independently refereed. All the Institute’s public- ations seek to further its objective of promoting the advancement of learning. The views expressed are those of the authors, not of the Institute. All rights reserved ISBN 1-903 386-44 6 Acknowledgement Charles Murray’s essay first appeared in two parts in the Sunday Times in January 2004. Civitas is grateful to its editor, John Witherow, for kind permission to reproduce the material here. Typeset by Civitas in New Century Schoolbook Printed in Great Britain by St Edmundsbury Press Bury St Edmunds, Suffolk IP33 3TU Contents Page Authors vi Editor’s Introduction David Conway ix Simple Justice Charles Murray 1. England’s Reluctant Crime Fighters 3 2. The Case for Simple Justice 17 3. Postscript: The Sunday Times Readers and the Hypotheticals 29 Commentaries Not So Simple Justice Christie Davies 35 Rough Justice: Some Thoughts on Charles Murray’s Simple Justice John Cottingham 56 Nuanced Justice Tom Sorrell 64 The Injustice of Simple Justice Vivien Stern 77 Rethinking Crime and Punishment Rob Allen 85 A Plague on Both Your Statist Houses: Why Libertarian Restitution Beats State-Retribution and State-Leniency J.C. Lester 96 Notes 107 v Authors Charles Murray is W.H.Brady Scholar at the American Enterprise Institute for Public Policy Research based in Washington DC. His several books include Losing Ground: American Social Policy 1950-1980, In Pursuit of Happiness and Good Government, The Bell Curve: Intelligence and Class Structure in American Life (with Richard Hernn- stein), and Human Accomplishment: The Pursuit of Excel- lence in the Arts and Sciences, 800 B.C. to 1950. He is also author of Charles Murray and the Underclass, Underclass + 10 and Does Prison Work? published by Civitas in asso- ciation with the Sunday Times. Rob Allen is director of the International Centre for Prison Studies at the University of London and was previously director of Rethinking Crime and Punishment, an initiative set up by the Esmée Fairbairn Foundation to change public attitudes to prison and alternatives. Before that he was director of research and development at the crime reduction charity, NACRO. He has been a member of the Youth Justice Board for England and Wales since 1998. He has written widely on crime and punishment including ‘Children and Crime: Taking Responsibility’ for the IPPR. Rob has undertaken work on criminal justice reform in 14 countries. David Conway is a Senior Research Fellow at Civitas and Emeritus Professor of Philosophy at Middlesex University. His publications include: Classical Liberalism: The Unvan- quished Ideal and In Defence of the Realm: The Place of Nations in Classical Liberalism. John Cottingham is Professor of Philosophy and Director of Research in the School of Humanities at the University of Reading, and is an Honorary Fellow of St John’s College Oxford. He has published widely on Descartes and the seventeenth-century rationalists, and also on moral philos- ophy and philosophy of religion. His On the Meaning of Life vi AUTHORS vii (Routledge) appeared in 2003, and his The Spiritual Dimension: Religion, Philosophy and Human Value is to be published by Cambridge University Press in 2005. Christie Davies was educated at Emmanuel College Cambridge where he took a double first in Economics and a PhD in Social and Political Sciences and was both a scholar of the College and Wrenbury scholar in Political Economy. He is the co-author of Wrongful Imprisonment, 1973 and author of The Strange Death of Moral Britain, 2004. He is also the author of many articles in criminology journals and has been consulted by the Law Commission and by barristers. He has lectured on crime and the law in Britain, Greece, Hungary and the United States and has given many papers at criminology and social history con- ferences. J.C. Lester has taught philosophy and political theory at various universities including the London School of Eco- nomics. His specialism is libertarianism. He has articles on libertarian issues, including crime and restitution, in many scholarly periodicals. In his Escape From Leviathan he develops a new theory of interpersonal liberty while offering a philosophical defence of the social scientific evidence that private-property anarchy best promotes both liberty and human welfare. He is currently writing a dictionary of anti- politics. Tom Sorell is Professor of Philosophy at the University of Essex. He has published widely on punishment and capital punishment. Vivien Stern CBE is Senior Research Fellow at the International Centre for Prison Studies (ICPS) at King’s College, London. She is also Honorary Secretary General of Penal Reform International (PRI), a non-governmental organisation promoting penal reform throughout the world. From 1977 to 1996 Vivien Stern was Director of the Na- tional Association for the Care and Resettlement of Offend- ers (NACRO). In 2003 she became the Convenor of the viii SIMPLE JUSTICE Scottish Consortium on Crime and Criminal Justice. She has written a number of books on penal matters, and in 1999 she became a life peer. Editor’s Introduction David Conway person receives punishment if someone in authority Aover them deliberately makes them suffer or sustain loss by way of response to the commission of some offence, understood as a breach of law or other rule. More serious offences are commonly termed ‘crimes’. To qualify for being so called, an offence must typically involve its perpetrator in knowingly and wilfully having inflicted, or attempted to inflict, suffering or loss upon some third party without authorisation by society. Since all punishment involves deliberately inflicting suffering or loss, which are both prima facie undesirable states, its infliction stands in need of moral justification. Typically, its justification looks back to the past offences for which it is imposed or else forwards to the potential offences its imposition is said to prevent by deterring potential offenders from offending through the fear of thereby becoming liable to it. Its backward-looking justification locates the rationale for inflicting punishment in the need there is said to be for offenders to be made to suffer or undergo loss in retribution for their offences. On this view, the more serious an offence the more severely does anyone who commits it deserve to be punished. Its forward-looking justification locates the rationale of punishment in its supposed deterrent effect. According to this rationale, its appropriate degree of severity for any given category of offence is whatever is the minimum needed to deter potential offenders from commit- ting offences of this kind. For those for whom deterrence provides the sole rationale for punishment, were all future crime preventable through introducing some otherwise inert drug into the national ix x SIMPLE JUSTICE water-supply, its introduction would be a better way to avert future crime than punishing past offenders. This is because punishment involves its recipients being subjected to prima facie undesirable states. Should its only purpose be achievable without anyone having to undergo any of these states, so much the better. Many opt for a forward-looking justification for punish- ment out of the belief it could be deserved by offenders only if they were capable of having chosen not to offend, which capacity offenders are then doubted or denied to have. Some deny or doubt offenders have this capacity out of the general belief that all human choice and action is deter- mined by the genetic endowment, environmental condition- ing, upbringing and present circumstance of human agents. Others doubt or deny offenders could have chosen not to commit the offences they did on the more circumscribed grounds of supposing them driven by pathological compul- sions they were incapable of resisting. Those who subscribe to a backward-looking justification for punishment do not share either deterministic conception of criminal responsibility. To them, punishment can be deserved because, but only because, offenders were capable of having chosen not to commit their offences, something they are further presumed to have known was required of them by society. In his essay ‘Simple Justice’, the celebrated American sociologist Charles Murray provides an uncompromising restatement and defence of the backward-looking, retribu- tive justification of criminal punishment. He also makes an impassioned plea for England to revert to this approach to dealing with convicted offenders, something, he claims, it did until comparatively recently, when those administering its criminal justice system replaced it with a more complex, non-retributive approach. According to the new approach, when deciding how severely to punish a convicted offender, trial judges in England and Wales now endeavour to take into account a complex range of other considerations besides, or in addi- tion to, the simple one of how grave was the offence of which DAVID CONWAY xi they have been found guilty. These factors include their degree of likelihood of re-offending, their degree of remorse shown during trial, and the degree of deprivation of their familial background or contemporary social circumstance. Murray takes issue with this more complex non-retribu- tive approach currently favoured by judges.