The Sunday Times

October 30th, 2011

Call it indeterminate, call it life – just keep them locked away

There was a lot of sound and fury last week around the subject of sentencing. Kenneth Clarke, the justice secretary, has come up with various proposals, some of which affect the jail sentences of the worst and most dangerous criminals, so unsurprisingly there has been outrage on all sides. Most inflammatory have been Clarke’s plans to abolish the current indeterminate sentences, under which certain criminals may languish indefinitely in jail without knowing when, if ever, they may persuade anyone that they ought to be let out.

Moral positioning on this has been quirky. On the centre-left liberal side is Clarke himself, a lifelong Conservative who now wants to get rid of indeterminate sentences which he calls “a gross injustice, a stain on our system”. Yet at the same time he is advocating mandatory life sentences not just for murder but also for other serious sexual or violent crimes. On the right-wing side is the veteran Labour grandee Jack Straw, once a left-wing student firebrand but now rather closer to the throw-away-the-key end of the political spectrum. He is all for indeterminate sentences, where appropriate; after all, his government introduced them in 2005. What a muddle and a mess.

All this comes on top of the public’s long-standing disillusion with sentencing of every kind. It has seemed for many years extremely odd to ordinary mortals that when a judge sentences a criminal to prison for a certain number of years, the actual time that prisoner spends in the slammer will be quite different. Why it will be different, and why the difference will vary so much, is a mystery to most people and even perhaps to quite a few lawyers.

It simply isn’t clever to allow the whole thing to be so impenetrably complicated. The judiciary is extremely anxious to make sentencing easier for the public to understand and accept, but has had little success so far. Either it isn’t in the jurisprudential nature to come up with clear explanations or the rest of us are too stupid and lazy to understand them.

However, there is one thing that ought to be obvious to everybody when thinking about sentencing cold-blooded murderers, torturers and child-killers — the criminals whom many people, and even a few judges, call evil. They are not in my opinion evil. That is a lazy and unconstructive judgment. What ought to be obvious, almost by definition, is that such people are sick or morally deformed or both. In all likelihood — although the scientific understanding of such things is still primitive — they cannot help what they do, and they may well never change: they do not have the run of themselves and cannot have moral autonomy, perhaps ever.

For that reason such people cannot and should not receive a normal sentence of a certain number of years’ detention, after which the prison gates will open. Such people can never, in the ghastly old-fashioned expression, “serve their debt to society” or leave their crimes behind them, washed clean in the ink of the parole board.

While many criminals should, indeed, serve a particular sentence — and preferably the exact number of years the judges impose — there are some whose future, whose crimes and whose risks to the rest of us are incalculable. That is why we need indeterminate sentences for imprisonment for public protection (IPPs), with no automatic right to release: they were one of the few things new Labour got right.

Uncertainty is a tragic part of the human condition. We live all the time with a struggle against uncertainty, especially about the things that matter most.

The word indeterminate is all about uncertainty: in ordinary English it means “not entirely known, established or defined”. In medicine it describes a condition whose underlying cause cannot be established. We do not yet know — nor does the wisest of judges or the most empathetic of parole boards — why a man (usually) has committed a disgusting crime of violence or even a number of them. From this it follows that the punishment cannot be made to fit the crime in any usual way. Therefore it must be as indeterminate in the legal sense as it is indeterminate in the ordinary sense.

For this reason it goes against reason and experience to abandon the legal idea of an indeterminate sentence. Admittedly it sounds horrible that a man should face the despair in prison of knowing the only way he may get out is to persuade a parole board that he is no longer a danger to society.

There is no question of proving this, obviously enough; merely of persuading a collection of people with the usual prejudices, anxieties and limitations. The public thinks parole boards are unduly soft, but I wouldn’t bet on that if I were an autistic and charmless serial child rapist.

At the moment there are 3,000 prisoners serving indeterminate sentences who have already served the minimum periods — the word tariff seems horribly inappropriate to me — recommended by the judge at their trials and there are 3,500 people who have served more than that minimum: 6,500 is a lot of people to be living in uncertainty, without much hope of freedom. The point is that in most cases, where the law is properly applied, this is not the fault of the legal system. The fault lies in the tragedy of the criminal’s own condition — whatever combination of mental illness and instability it is that has impaired his fellow feeling, his impulse control, his contact with ordinary reality and so on and made him into an unpredictably dangerous person.

This is a tragedy which is more clearly recognised these days, even though its causes are still little understood. What is understood, sadly, is that it is difficult or — more likely — impossible to repair misshapen personalities, whether they were distorted by nature or by nurture. This is a horrible thing for a convicted young man or his mother to hear, but in the light of current scientific understanding it is the indeterminate truth.

As Straw rather crudely put it on the radio last week, for a person on an indeterminate sentence to get out, the requirement of the law is that the serious offender has to show he has been able to “straighten out his brains” so as not to be a danger to society. Who could be sure that he has? Brains aren’t so simple. All this is the usual unnecessary mess — a dog’s dinner of bad faith, political expediency, ignorance and wishful thinking. The sick joke is that life sentences work in much the same indeterminate way anyway. So the sound and fury do not signify all that much.