On Lenient Sentencing

It seems every day there is another shocking example of judges letting criminals off the hook. Soft sentences for a whole array of offences seem to be given on a daily basis, and the newspapers are full of public outrage over such leniency. Victims’ groups are especially incensed at how our judiciary seems more concerned about the rights of criminals than the rights of victims.

Two obvious examples have just featured prominently in the media this past week. The first was the case of the judge who did not send to jail any of nine youths who gang raped a 10-year-old girl in Cape York. Judge Sarah Bradley said the girl “probably agreed” to have sex with the gang.

The second was the case of a judge who said a thirteen-year-old deaf boy consented to his own sexual abuse. Judge Michael Kelly said the assault was merely “adolescent experimentation” and released the attacker on a suspended sentence.

Why all this lunacy? It did not just happen by chance. There are good reasons why we see so many cases of ridiculously light and unjust sentencing. All this is the bitter fruit of some bad ideology. And that ideology must first be countered before we can see a change of fruit.

Ideas have consequences, in other words, and bad ideas have bad consequences. And while there may be many factors that go into the tragedy of unfair sentencing, a major factor surely is this: we have dismissed the notion of sin, of right and wrong, and relativised morality in the process.

Back in 1973 American psychiatrist Karl Menninger wrote a book with a profound title, Whatever Became of Sin? That is the question. We no longer believe in sin, and we no longer believe in evil. We have bought in to the Enlightenment thinking that says we are all basically pretty good chaps. Society corrupts us, as Rousseau tried to argue, but deep down we are just all hunky dory.

So why do people do bad things? According to the modern view of things, it is because of bad circumstances, a bad environment, a bad upbringing, and so on. People are not really bad, nor do they in fact really do bad things. They just have been abused and messed up by society, or their parents, or the system, or some such thing.

Thus criminals are not really immoral or sinful. They are, according to the new way of thinking, sick. They do not need to be punished; they need to be healed. Thus we should not lock up criminals, we should try to probe their psyches and see why they engage in “antisocial behaviour”.

This was clearly the worldview of Judge Michael Kelly. A fellow judge said that Kelly was “probably a lenient judge. He had a toleration for the miscreants appearing in his court, and even a liking for many of them. He believed that it was his duty to keep people out of jail if possible.”

Many have written about the paucity of such views. One early critic was the great C.S. Lewis. Writing way back in 1949, actually for an Australian journal, Lewis had an incisive piece entitled, “The Humanitarian Theory of Punishment”. It has appeared in various places since then. I have it in a 1970 collection of his essays, God in the Dock: Essays on Theology and Ethics (Eerdmans).

In this essay Lewis rightly argues that there is nothing just or merciful about the new view of crime and punishment. Indeed, he argues that there is nothing very humanitarian about what he calls the “Humanitarian theory”.

The theory goes like this: all crime is really pathological, and treatment, not punishment, is what is required. Punishment is seen as barbaric and vindictive. After all, if someone is sick, we don’t punish them, we seek to treat them. The Humanitarian view rejects the notion of sin, of right and wrong, and instead sees crime in terms of maladaptive behaviour. Those holding to this view believe that this is the only humane and just way to approach criminal activity.

But Lewis reminds us that traditionally justice has always been about giving to each person his or her due. Justice is in large part about retribution. It is the old concept of reaping what you sow, in other words. But by separating consequences from actions, and punishments from crimes, we are actually doing the criminal greater harm.

Says Lewis, “when we cease to consider what the criminal deserves and consider only what will cure him . . . , we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case’.”

He continues, “The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. . . . The Humanitarian theory, then, removes sentences from the hands of jurists whom the public conscience is entitled to criticize and places them in the hands of technical experts whose special sciences do not even employ such categories as rights or justice.”

The motives of this new way of looking at crime and punishment may be kindly, but the results are devastating. Lewis concludes with these words:

“This is why I think it essential to oppose the Humanitarian theory of punishment, root and branch, wherever we encounter it. It carries on its front a semblance of mercy which is wholly false. That is how it can deceive men of good will. The error began, with Shelley’s statement that the distinction between mercy and justice was invented in the courts of tyrants. It sounds noble, and was indeed the error of a noble mind. But the distinction is essential. The older view was that mercy ‘tempered’ justice, or (on the highest level of all) that mercy and justice had met and kissed. The essential act of mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient. If crime is only a disease which needs cure, not sin which deserves punishment, it cannot be pardoned. How can you pardon a man for having a gumboil or a club foot? But the Humanitarian theory wants simply to abolish Justice and substitute Mercy for it. This means that you start being ‘kind’ to people before you have considered their rights, and then force upon them supposed kindnesses which no one but you will recognize as kindnesses and which the recipient will feel as abominable cruelties. You have overshot the mark. Mercy, detached from Justice, grows unmerciful.”

There is nothing merciful about whitewashing serious crime. It does the criminal no good, and it certainly does not do any good for the victim, or society at large. Lewis was quite right to warn about the damaging effects of sloppy views of crime and punishment. Today we are seeing the results of this lousy ideology being played out on a daily basis.

Unless we challenge the false ideology that lies behind all the wrist-slapping that we see our courts handing out to criminals, things will only get worse, not better. But hopefully common sense will prevail. It is already there in the general public. We just need to get the intelligentsia and ruling elites to follow suit.

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12 Replies to “On Lenient Sentencing”

  1. Thomas Sowell pointed out in The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy:

    One of the most important questions about any proposed course of actions is whether we know how to do it. Policy A may be better than policy B, but that does not matter if we simply do not know how to do Policy A. Perhaps it would be better to rehabilitate criminals, rather than punish them, if we knew how to do it. Rewarding merit might be better than rewarding results if we knew how to do it. But one of the crucial differences between those with the tragic vision and those with the vision of the anointed is in what they respectively assume that we know how to do. Those with the vision of the anointed are seldom deterred by any question as to whether anyone has the knowledge required to do what they are attempting. …

    Widespread personification of ‘society’ is another verbal tactic that evades issues of personal responsibility. Such use of the term ‘society’ is a more sophisticated version of the notion that ‘the devil made me do it.’ Like much of the rest of the special vocabulary of the anointed, it is used as a magic word to make choice, behavior, and performance vanish into thin air. …

    The vision of the anointed is one in which ills as poverty, irresponsible sex, and crime derive primarily from ‘society,’ rather than from individual choices and behavior. To believe in personal responsibility would be to destroy the whole special role of the anointed, whose vision casts them in the role of rescuers of people treated unfairly by ‘society’. …

    In short, while saving some innocent individuals from a false conviction is important, the question is whether it is more important than sparing other equally innocent individuals from violence and death at the hands of criminals. Is saving one innocent defendant per decade worth sacrificing ten innocent murder victims? A thousand? Once we recognize that there are no solutions, but only trade-offs, we can no longer pursue cosmic justice, but must make our choices among alternatives actually available–and these alternatives do not include guaranteeing that no harm can possibly befall any innocent individual. The only way to make sure than no innocent individual is ever falsely convicted is to do away with the criminal justice system and accept the horrors of anarchy.

    Jonathan Sarfati, Brisbane

  2. An interesting take on a topic that I have been extensively considering at my own blog and although as an atheist I reject any notion of original sin, I do agree with what Lewis has to say about justice and the value of punishment as an outcome of any court process.
    Iain Hall

  3. Well said, once again Bill.
    God is a God of hedges and supports. He sets these in place to protect and provide for a society which is set up along His lines (Isaiah 3:1-3), but if a people refuse to walk in His ways, He also promises to remove them (Isaiah 5:1-5). I believe we are seeing the beginning of the promise to remove the judge (Isa 3:2). Please note that the judges don’t just get taken off the scene, I believe they just begin to lapse into non-function as God originally intended them to. I think having an openly-practising homosexual judge would be part of this judgment.
    I rejoiced when I “chanced” apon Leviticus 21-22, which shows us a lot of the thinking God wants us to employ when we run His society-remember that “he who overcomes, I will give him authority and power over the nations, and he shall rule them with a rod of iron” Rev 2:26-27. I thank God for great Christian thinkers like C S Lewis – what a blessing he has been to us, but we need more of them. Each age with it’s new Goliaths needs new Godly thinkers with solutions that are built on something solid that actually works, like the Kingdom of God. People who dare to believe that a lot of the thoughts that are running through their heads are born of God, and for a purpose beyond just them thinking, “what good thoughts”. God bless you Jonathan Sarfati, you are one of them.
    Ian Brearley

  4. If I am not mistaken the following is a classic case of evolutionary humanistic justice where those on different rungs of the evolutionary ladder are accorded different rights. The human rights act divides people up into groups on the basis of sex, age, race, or whether they are one-eared, bald, ginger haired, middle class or aboriginee.

    David Skinner, UK

  5. Indeed Iain, thank God for C.S. Lewis and Francis Schaeffer for prophetically equipping us for understanding times such as these. They would have been amazed.
    David Skinner, UK

  6. Lewis makes the point very strongly that the three alternatives to the retributive theory; reforming the criminal, protecting society, and deterrence, fail to have any component of justice to them. Yet, as Bill points out, they still have the element of compulsion and taking away the freedom of the subject of ‘treatment’.
    The alarming thing is that the targets of these treatments may not always be the traditional criminal: they could be social misfits, like people with certain religious views.
    We have already heard that some proponents of Global Warming alarmism have suggested that denial should be treated as a crime. Victoria’s vilification laws seem to be open to the same abuse.

    John Nelson

  7. Good insights here Bill. Thanks for the piece by Lewis. I wasn’t aware of that one before.

    Unfortunately, liberal judges will just see horrid acts like child rape as further evidence, not of the evil in people’s hearts, but of the corrupting influence of society. They just refuse to make people responsible for their own evil.

    I penned a small piece on this today – http://www.themidnightsun.org/?p=1535

    Damien Spillane

  8. Has anyone noticed how quickly the media has dropped the issue of the young 10 year old aboriginal girl that was raped from its pages.
    We as a nation are so controlled by the media that injustices are soon forgotten.
    Jim Sturla

  9. They hung out the prosecutor to dry, but he, like Eichmann, was only obeying orders from higher up. The whole department needs a shakeout of those who oppose equal treatment under the law, so excuse brutality from those of a particular race. Far more heads should roll than that prosecutors for not imposing jail on gang rapists of a child.
    Jonathan Sarfati, Brisbane

  10. Even worse, the State Labor government persecuted those who pointed out the rampant child abuse in aboriginal communities. For example, Abuse victims become predators, The Australian 23 Jan 2007, reports on the sacking of Dr Lara Wieland for daring to write to the Prime Minister of her concerns—a lady who had previously been called “The Angel of the Cape” for her humanitarian work among Aboriginal children.

    The serial assaults on young boys and girls in Kowanyama were first reported by then resident Royal Flying Doctor medico Lara Wieland who, in March 2003, handed a 10-page letter to John Howard and then premier Peter Beattie outlining the issues.

    Her letter said child sexual abuse and neglect were out of control and that the majority of her young female patients had been sexually abused.

    “I have had many patients as young as five and six test positive for STDs such as chlamydia,” she wrote.

    “There are grandmothers who tell me that on ‘drinking nights’ they lock themselves in the bedroom with their grandchildren to protect them from being raped. Another person told me that on the drinking nights, they could hear a grandma down the road yell ‘get off of those kids’.

    “I have made multiple reports of abuse about children over months that have been ignored and nothing has happened. When a child discloses sexual abuse to me, I no longer promise to make it stop as that makes me a liar.

    “There was a six-year-old boy to whom I made that promise and he was put back in the same unsupervised situation, and had contacted chlamydia.”

    Dr Wieland yesterday told The Australian that that child was one of those now accused of being involved in the rapes of other young boys on Kowanyama.

    The Queensland Health Department sacked Dr Wieland for reporting her concerns to the prime minister.

    Here is the text of Dr Lara Wieland’s letter to John Howard and Peter Beattie (The Australian, 23 Jan 2007). This was likely a strong contributing factor in the Coalition’s intervention.

    Jonathan Sarfati, Brisbane

  11. The over lenient judge seems to be a worldwide phenomenon. Perhaps we need a psychologist to explain it.
    Maybe the social class he is in means he does not feel threatened by violent yobs and criminals like the rest of us.
    I have been on juries where the judge has fallen asleep.
    Why can judges work on into their dotage while the rest of us can’t get a job at all once we are over 50.
    Is it the same type of old boy network that enables bankers to award each other obscene amounts of money and pensions and politicians in Britain to claim vast amounts in expenses unchecked and hidden from the public until exposed by a newspaper.
    My opinion is criminals of the worst kind should receive capital punishment and others heavy prison terms. If we have not got enough prisons build more!
    Dominic Colgan

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