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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