09.04.2008

Debating crime and punishment

On April 6 the CPGB's London Communist Forum discussed section 3.15 of our Draft programme: 'Crime and prison'.1 Mike Macnair reports on his opening and proposes some revisions to the section

The major weakness of the current version of the section is that it consists almost entirely of very specific demands about the prison system. But prison is only part of the ‘criminal justice system’. This consists of, broadly, three elements: first, the rules which define what counts as ‘crimes’ (‘criminal law’); second, the system of police, prosecution and trial; third, the system of punishments. The prison system is part of the third element.

‘Crime’ is a slippery word which mixes together victimisation of other individuals (murder, rape, etc); penalties for breach of public safety regulations (speeding, etc); interference with private property rights (theft, etc); the capitalist state’s defence of its own authority (‘terrorism’, tax evasion, obstructing the police, etc); and purity rules of religious origin (blasphemy, sex laws, drug and licensing laws, etc). The ‘core sense’ from the point of view of lawyers is the crimes against the state, which were the original crimina publica of Roman law, from which the word ‘crime’ comes.² But the ‘core sense’ from the point of view of public opinion and ‘fear of crime’ is victimisation of other individuals.

There is clear anthropological evidence that pre-class and stateless societies also experience both cases of personal violence, and cases of attempts to ‘free-ride’ on the work of others (which is, at the end of the day, what a thief or fraudster is doing), and apply social sanctions to these forms of conduct.³

Under class society, the ‘criminal justice system’ works to outlaw resistance to the ruling class’s property claims. These are inherently claims to coerce other individuals and free-ride on their work: a slave-owner ‘possesses’ property through his slaves who actually control and work it, a manorial lord through his peasants, a capitalist through his employees. A person possessing property only through individually controlling or working on it could not be a member of a ruling class.

The role of the criminal justice system in protecting ruling class property rights against members of the subordinate classes thus inherently entails a contradiction: that the law condemns theft and violence (an inheritance from pre-class society), but sanctifies ruling class theft and violence as a kind of property right. Members of the ruling class and their political agents steal and kill with impunity:

The law will hang the man or woman
That steals the goose from off the common
But lets the greater villain loose
That steals the common from the goose.

This fact, in turn, ‘legitimises’ individuals trying to ‘get on’ in society by dishonesty and violence at the expense of other working class people, who are the principal victims of everyday ‘crime’: burglary, street violence and so on. Hence class society makes individual victimisation more common. This is also supported by the fact, now clear from comparative studies, that high levels of social inequality in modern societies are correlated with high levels of individual victimisation, and the reverse.⁴

Communists do not imagine that the overthrow of capitalist political rule would immediately end the social dynamics which lead people either to victimise others for personal advantage, or to act carelessly and dangerously. We do not stand for the immediate abolition of the state, but for the creation of a state answerable to the working class, which - as the working class remakes society in its own interests - can begin to wither away with the class order itself. We stand therefore for a criminal justice system answerable to the working class.

This has implications about the proper scope of ‘crimes’; about the forms of policing, prosecution and trial; and about punishments. I list below under these heads proposals for immediate demands in these fields, along with some of the discussion at the April 6 meeting.

Crimes

Codification and simplification of the criminal law: This is a traditional democratic-republican demand. The object is to enable citizens generally to understand what the law is. Going along with it is Inclusion of the basics of law in the school curriculum. There was some discussion at the forum of whether this second idea is feasible, but in fact, there are already GCSEs and A levels available in law.

Abolition of ‘purity crimes’ (blasphemy, consensual sexual offences, drug laws, etc). In relation to ‘age of consent’ laws and homosexuality the demand is already in the Draft programme under 3.11 and 3.13. In relation to blasphemy, it follows from separation of church and state (3.16). We have consistently defended decriminalisation of drugs and of prostitution in the Weekly Worker without either demand being formally in the draft programme. There are undoubtedly other examples.

Comrade Mary Godwin made the point in the discussion that there is some tendency to invent new purity crimes. The examples she gave concerned anti-smoking and recycling legislation, but these appeared to other comrades to be regulatory rules (discussed below) for the protection of other individuals from the cumulative results of people’s conduct. But there are certainly examples, like the legislation against inciting religious hatred, which is drawn widely enough to outlaw legitimate debate.

Separation of regulatory penalties from criminal law: This is an aspect of simplifying the criminal law. The assimilation of regulatory penalties to criminal law is a recent development: between the revolution of 1688 and the 20th century, a common form of regulatory enforcement provided for civil penalties. It also has other purposes.

Two examples. The first is that the criminal justice system, at the lowest level, is clogged up with road traffic matters. The fact that breach of road safety regulations is treated as a crime supposes that there is a right to drive a car, rather than doing so being a privilege conditional on compliance with safety regulations (which is the case for many other seriously hazardous activities). It also externalises part of the cost of the road traffic system (regulatory enforcement), while in contrast the cost of regulatory enforcement is ‘internalised’ in public transport: the result is a subsidy to road traffic from the police and court budgets.

Second, in general the fact that regulatory penalties are crimes means that they are subject to the “criminal standard of proof”, “beyond reasonable doubt”. The result is that polluters, employers who break safety regulations and drivers who can afford “Mr Loophole” specialist solicitors⁵ constantly escape from liability because, though there is solid evidence of their non-compliance, it does not meet the criminal standard of proof.

Policing, prosecution, trial

Replacement of the professional police force with a workers’ militia and local self-policing. While the professional police force continues to exist, full democratic and trade union rights for the police rank and file: This simply applies to the police our existing position on the armed forces (3.7). It was suggested in the discussion that detective work, and in particular forensic science, involves specialist training; but this is also true of many military tasks.

Abolition of the crown prosecution service and of the rights of the attorney general and director of public prosecutions/CPS to take over and stop prosecutions: The creation of the crown prosecution service (CPS) in 1985 was justified on the basis that it would prevent a repeat of miscarriages of justice like the Birmingham Six and Guildford Four. It is now clear that the CPS is merely an added layer of bureaucracy, unaccountable lawyer control, delay and lack of transparency in decision-making in the criminal justice system. For state control of prosecutions through the attorney general and director of public prosecutions, see, for example, the affair of bribes allegedly paid in connection with the al-Yamamah arms deal with Saudi Arabia;⁶ but the powers are considerably more extensive.⁷

Duty of all lawyers to undertake criminal prosecution and defence work on request: In theory barristers are subject to the ‘cab-rank rule’ obliging them to take any case submitted to them if they are free; but the rule is circumvented in practice and current proposals would weaken it further.⁸ Solicitor-advocates are not subject to the rule. Recent legal aid ‘reforms’ have been properly aimed at lawyers milking the system, but, given the underlying free-market premise that lawyers are allowed to choose their cases, they tend to reduce the number of lawyers doing criminal defence work.⁹

Applying a cab-rank rule to all lawyers in relation to criminal prosecution and defence work is a partial way of making legal representation in criminal cases generally available without a state legal service (which would tend to result in bureaucratic manipulation) or unlimited legal aid funding (which is simply a monopoly rent/subsidy for lawyers in criminal practice).

Restoration and extension of trial by jury. Jurors to be judges both of law and fact, with judicial advice on the law: Trial by jury is a fundamental democratic-republican principle, and a critical means of subordinating the state bureaucracy to the citizens (hence to the workers). It has been gradually but steadily undermined over the last century. ‘Jurors to be judges both of law and fact’ is a classic Leveller and 18th century Commonwealthsman demand. It reflects the fact that one of the means of undermining trial by jury has been for the judges to usurp power over the jury by telling jurors that they must convict (or acquit).

In discussion comrade Phil Kent raised the point that jurors may not understand the issues, as in complex fraud trials. My own response was that if jury trial were more extensively used, knowledge of legal issues tried would diffuse through the general public, as appears from evidence of lay knowledge of law before the recent reduction in the use of trial by jury. Comrade Peter Manson said that from his own experience of jury trial, jurors were perfectly capable of understanding complex issues: the ‘complex fraud’ argument was merely elements of the state pursuing their own agenda of getting rid of jury trial.

All judges and magistrates to be subject to election and recall: This is in the existing text. Comrade Manson made the good point that if we were to make jury trial general, there would be no need for magistrates.

Punishments

Fines must be proportionate to income: This too is in the existing text. It should be noted that systems of this sort are commonplace; an attempt to introduce such a system in England in 1991-92 was defeated by the opposition of the magistrates, backed by the Tory press.¹⁰

To address the crimes of the rich and powerful, extended use of criminal bankruptcy, forfeiture of property: These powers already exist, but are narrowly drafted and not extensively used outside the context of drugs trading.¹¹ They are particularly appropriate to cases of manslaughter caused by cost-cutting and similar crimes.

… and disqualification from acting as a director; creation of a more general criminal penalty of disqualification from public office and from managerial or professional responsibility: Penalties of this type were commonly found in 17th and 18th century statutes, which attempted to control official misconduct - for example, the Habeas Corpus Act 1679, section 12 (7), said that persons involved in what would now be called extraordinary rendition to foreign prisons should “be disabled from thenceforth to bear any office of trust or profit within the said realm of England ...” (Unfortunately, the section was repealed in 1948¹²).

The more general point here is that a part of the causes of the sort of criminal victimisation which affects working class people is the impunity of the ruling class and their senior bureaucratic and political agents (in the ‘bureaucratic socialist’ regimes, the impunity of the bureaucratic elite). This implies not merely that fines should be proportional to income, but that serious crimes should as far as possible result in the upper-class criminal being socially degraded: which requires forfeiture of property and/or disqualification.

The sentencing ‘tariff’ issued by the judicial studies board needs to be replaced with democratically agreed sentencing guidelines. These should be rebalanced to treat personal violence as more serious than interference with property, rather than (under the current ‘tariff’) treating property offences as more serious: The judicial studies board (JSB) is an unaccountable quango. Comparison of the sentencing guidelines for theft and robbery with the JSB’s guidelines on ‘general’ damages in civil actions for personal injuries reveals that the JSB, and judges, generally treat property offences as very much more serious than offences of violence.¹³ The result is that public and media pressure for heavier sentencing in cases of violence inevitably drags with it heavier sentencing in property offences, leading to prison overcrowding, leading to early release schemes and government pressure for lighter sentencing, leading to public and media pressure for heavier sentencing ...

Reduced use of imprisonment, which should be reserved for crimes involving serious victimisation of individuals only: This is a very fundamental point. Imprisonment is extremely expensive, and it is perfectly clear that it ‘works’ only insofar as it keeps the criminal off the streets.¹⁴ Any efforts at rehabilitation are compromised by cramming together people who have committed similar crimes, promoting a ‘criminal subculture’ and the passing on of hints and tips about how to be a more effective criminal.

More fundamentally, the underlying social relation of prison is of a relatively small number of prison officers attempting to control and subordinate a substantially larger number of prisoners, many of whom have impulse control problems in the first place. The 1971 ‘Stanford prison experiment’ demonstrated that this social relation would inherently tend to produce abusive behaviour in the guards and demoralisation of the prisoners.¹⁵ Hence, however determined the effort to make prison rehabilitative, imprisonment as a social relation works against them. We need to make a clear commitment to reduced use of imprisonment.

Abolition of prison secrecy. Election of inspectors of prisons: This is a revise of the original text, which reads: “There must be workers’ supervision of prisons.” The revise is because (a) the new version is in my opinion more consistent with our general ‘extreme democracy’ approach; (b) it is more concrete; and (c) the existing formulation begs the question: which workers? The prison officers? ...

As I said before, the bulk of the existing text is a series of concrete demands about prison. The general line of these demands is that prison should be simply deprivation of liberty, with no added element of what the right has traditionally called ‘less eligibility’. Prisoners should lose only the right to come and go, but should retain the right to communicate, to vote, to NHS medical treatment, to worthwhile work at union wages, and to privacy in the form of single-person cells.

The discussion addressed only one of these demands: that Incoming and outgoing letters can only be checked for contraband - they must not be read nor censored. Comrades raised the issue of what “contraband” meant. Comrade John Bridge made the important point that a programme is inevitably a very summary document, which is bound to contain ambiguous words.

This led into a more general point. My draft revision as a whole expanded the section from 262 words to 675. Comrade Bridge made the point that, if anything, the current section was too long and detailed. The section as eventually redrafted should make only fundamental points of general line on the issue. In summing up, I agreed with comrade Bridge. Part of the introductory material in my redraft could be shed, and both the suggested new immediate demands and the existing demands about prison could be stated in a more general way.

Notes

1. www.cpgb.org.uk/documents/cpgb/prog_demands.html#3_15
2. Oxford Latin Dictionary sv crimen; T Mommsen Römisches Strafrecht (1899) pp9-10, and chapter 5.
3. Eg, KS Newman Law and economic organisation Cambridge 1983.
4. P Fajnzylber, etc Inequality and violent crime (2001): citeseer.ist.psu.edu/cache/papers/cs/26199/http:zSzzSzecon.worldbank.orgzSzfileszSz15757_ FajnzylberEtAlInequalityCrime.pdf/fajnzylber01inequality.pdf
5. The Metro February 6.
6. The Guardian February 15.
7. cps.gov.uk/legal/section1/chapter_h.html; http://cps.gov.uk/legal/section1/chapter_i.html
8. For their circumvention see sources cited by Kunzlik (1999) 62 MLR 850 at 862-63. Current proposals are at www.legalweek.com/Navigation/35/Articles/1102960/Commercial+and+Chancery+Bar+First+response.html
9. The Guardian March 10.
10. en.wikipedia.org/wiki/Unit_fine provides a convenient summary.
11. On criminal bankruptcy see www.insolvency.gov.uk/freedomofinformation/technical/TechnicalManual/Ch25-36/Chapter35/part1/part1.htm; forfeiture, www.cps.gov.uk/legal/section21/chapter_a.html
12. Statute Law Revision Act 1948, first schedule.
13. The sentencing guidelines are available at www.sentencing-guidelines.gov.uk: Guidelines for the assessment of general damages in personal injury cases Oxford 2006.
14. Outline discussion by Jon Silverman at www.esrc.ac.uk/ESRCInfoCentre/about/CI/CP/Our_Society_Today/Spotlights_2006/prison.aspx?ComponentId=16448&SourcePageId=13440
15. www.prisonexp.org