Criminal justice must be a pancake, not a pie

Pre-trial custody; forgiveness; victims of crime

This article is in part inspired by Sean Mann’s article Doing Life, here. These things matter, and they’re going to matter even more, as we commence the steady descent into hell.

Pre-trial custody

Because pre-trial custody (they call it remand in England & Wales) entails imprisoning an individual before they have been tried on the charges arraigned against them, it is, to say the least, controversial. The rules vary from country to country on how long pre-trial custody may be for, at what intervals extensions must be sought by the prosecution, and why, the access that prisoners have to visits, media and communications during custody, the danger of flight, conditions for bail and its cost, whether the time there counts towards any custodial sentence handed down at trial, and whether an acquittal will render the state liable to the accused in damages, but the incursion that it represents upon the presumption of innocence is great nonetheless, and its dangers lurk not only in the fact that it can help create a presumption of guilt but that, pending trial, a prisoner may lose their employment as a result and incur considerable costs, not the least of which is the cost of a bond (or bail), to which little regard may be paid if the charges are dismissed, the case is abandoned or the prisoner is acquitted.

Recently, a contractor was engaged in the Walloon Region in Belgium to effect repairs to a bridge in the town of Gosselies (media report here, in Dutch). The repairs came to a total price of 52,000 euros. The problem is that the contractor repaired the wrong bridge, the one at Roux instead the one at Gosselies. It transpires that works had also been required at the Roux bridge, so the expenditure was not wasted. A relieved contractor could still render their bill. A storm in a teacup for a firm of civil engineers, no doubt, and it turned out the works were needed as much at Roux as at Gosselies. Otherwise, they’d have been left to pay the cost of their intervention themselves and could, conceivably, have been required to undo the works.

But when the accused in a criminal trial is acquitted, who bears their costs? Who compensates the days and nights of constant anguish and worry over their future? And who compensates any time they spent in jail pre-trial? How do you restore time to the innocent? In Sweden, latest figures show that 1,200 people were compensated in 2022 for being acquitted after being held in jail pre-trial (in the US, jail denotes pre-trial custody; prison denotes post-sentencing detention). Sweden is a rare exception.

In many places in the civilised West, the criminal justice system has grown to bear stark likenesses to corporate business: with a guaranteed input of raw manual labour, the throughput into Justice’s systems and processes can virtually be predicted from one month to the next, from year to year, from decade to decade. With that come certain patterns that can be relied upon, right down to the profiles of the inmates, the skills they possess and, hence, the viability of delegating portions of business production line activity to prison populations. To take a magnanimous view, this is so as to ensure that idle hands do not do the devil’s work; more cynically, it’s to ensure they do manual work of considerable profit to corporations (two dollars a day is the standard inmate’s wage in the US). In the US, the prison system is the new slavery (yes, the vast majority of inmates are Black). Long custodial sentences, criminal charges deemed unconscionable in other jurisdictions (such as felony murder, abolished in England in the 1950s) and a readiness to favour imprisonment over more social remedies, like leg bracelets, make Justice complicit in feeding into, not only the public’s fears for their general safety but also corporate needs for cheap, or virtually free, labour.

Whether that is an unfortunate coincidence of worsening crime rates in America, or is a policy intended in the last detail to produce such effects, may be open to question: the document Project 2025, a Mandate for Leadership —The Conservative Promise, issued by the Heritage Foundation, shows that there are bodies as high as advisory advocates to government that are capable of devising strategies and policies that seek to make systemic changes capable of being cloaked under the pretence of some other stated aim (e.g. restricting abortion is stated in the document to be aimed at protecting the unborn child, but it could result in endangering the mother’s life and raises a quandary as to what to do with unused IVF embryos). The fact that a system seems to have a given result but is stated to have another, quite different aim cannot be taken as prima facie evidence that the confirmed result was not an intended aim from the outset. Moreover, the Project 2025 document has been vaunted publicly by the Democratic Party as portending certain consequences that, in fairness, are not contained in its wording. The implication is that the Democrats may have read between the lines of the document, which can be a shrewd thing to do with any public statement, except that their doing so has in part misinterpreted and sensationalised what they claim is the document’s subtext, and one might want to read between the Democrats’ own lines to determine why it is they have done that. This article is not focused on Project 2025, but uses that topical example to show that system aims and systemic results can diverge from one another, with the difference ultimately being dismissed as nothing more sinister than, as I put it, unfortunate. The question is whether that’s a correct assessment.

Regarding custody pending trial: I was very impressed by the fictional story told in a mini-series a few years back starring John Turturro, called The Night Of (viewer discretion advised). It is fictional but if you’ve ever passed any time in the company of those often described as sketchy (US) or shady (UK), you’ll see that the representations contained in it are not fabricated or stylised. The story concerns a man arrested for murder who has no recollection of whether he killed the woman victim or not—and, with that fact, we as audience are deprived of our natural inclination to prejudgment on the rest of the story. The accused is remanded to Riker’s Island penitentiary in New York, a real prison in a real town.

There, his prime task is, frankly, to still be alive when his trial date comes. Not only his demeanour, but his appearance slowly but surely take on that of a hardened convict. He shaves his head, smokes meth, befriends a protector, works the commissary system, assists a murder, learns not to wear orange for court appearances, all after his bed has gone up in flames. Riker’s Island is no holiday camp, to use the words of William Whitelaw (as reproduced at the end of Gerry Rafferty’s Garden of England). In summing up at the trial, Turturro gives a stirring and very well constructed piece of monologue, part of which addresses this fact: that the accused, having been held on remand for so many months, has, in order to even stay alive and survive the prison system, had to change, to assimilate to Riker’s Island and its population, and now he stands before the jury to be judged—looking every bit the hardened criminal that the prosecution would have them believe he is, and innocence of which it is now his formidable task to persuade them. In other words, he looks guilty. It is a frightening narration of a young man’s journey through criminal justice, and how it makes him into a criminal.

I expressly mention the scriptwriter’s technique of the accused’s lack of recollection. We believe him, even if, at least initially, like his counsel, we can barely credit it. Ethically, counsel may not plead the innocence of an accused who they know is guilty as charged. But they may validly challenge the state’s case as brought in support of the charges. They may question the evidence and they can profess theoretical innocence, provided they have not been informed of the accused’s position on the matter. The English case of Lucy Letby, a nurse convicted of the murders of a series of newborn babies, may yet prove to be food for thought: the most incriminating evidence against her seems to have been that she happened to be on duty when each of the babies died. As were many other people, on an understaffed neonatal ward. However, she is in prison for life, whole life. The Texas case of Robert Roberson III is likewise interesting. He has been granted remission of 30 days as from 17 October—on which day he had been scheduled for execution.

Letby supposedly incriminated herself by writing a frantic note to herself asking why she had done it, and recriminating against herself for her evil acts. I’m not personally sure that her acts, as impelling these notes, were acts of murder in the first degree, but I’m not directly involved and even those who are have clammed up, or were inexplicably not called as key defence witnesses. Roberson has served 21 years in prison, not for a crime he didn’t do, but for a crime that was never done, at least so all the current comments would seem to indicate: the daughter he is supposed to have killed by shaken baby syndrome may just as easily have fallen out of bed—a short fall. Yet his lawyer acquiesced in the charge of murder at first instance, and effectively pled only mitigation. He never questioned the fact of his client’s guilt, and that set the die for the next two decades. If we get into our minds from the outset that the accused is guilty, or that accused generally are guilty, it can be very difficult to shake that notion, because we find it hard to step back from our involvement in either the process itself, or in the process as we play it out in our minds, or in the society in whose behalf the process is conducted. Presumption of innocence becomes nothing but an empty panacea.

We should have the level-headedness (at least via our appointed prosecutors and judges) to handle the accused truly on the basis of innocent until proved guilty prior to their incarceration, and should absolve the guilty of their debt, once their day of release is come. But career advancement is a major factor that stands in the way of level-headedness. We want criminals to not be criminals any more, and, if that is so, we must give them their voting rights, embed them in the society within which, upon release, we want them to reintegrate. One problem with the correctional system is that the general public, who reckon to benefit most from it (at least theoretically), on the whole don’t give a hoot how it operates, as long as it operates; and those who operate it on our behalf really don’t know what it is they want out of it, because, essentially, nor do we.

The criticism that the acquitted receive inadequate compensation, if any at all, could be answered by raising the bar for indications of guilt before pre-trial custody can be ordered, or by accelerating the investigative process of gathering evidence and mounting a case: if the state thinks the accused did it, then they must come with the evidence, now and not in several months’ time. That’s because it is an underlying principle in a democracy that the citizen is free until they are proved to have acted contrary to law, and the state should endeavour to keep the time between being free and that being incarcerated to a minimum. The care that a democracy devotes to its criminals, as well as to its under-privileged, and its disabled, and its poor, is a token of the measure to which it can be designated a civilisation. If bridge repairers in Wallonia must themselves stump up the costs of the mistakes they make, then so should a criminal justice system.

As a society, we delegate the responsibilities of the criminal justice system to our governments. To them we entrust the care of all our concerns and fears in terms of the criminal law. They prevent crime before it can happen, investigate crime once it has happened, prosecute crime when they know who did it, or think they do, punish crime once guilt is established, and deal with the aftermath of crime in its wake and once the criminal has been released from captivity: for society, for the victim, and for the miscreant. Under the panoply of those three little words—criminal, justice, system—there vie with one another a whole host of interests at each stage of the procedure, with voices of protest being raised whenever it gets felt that any of them has assumed undeserved prominence: we want crime prevention, but resent surveillance cameras on every street corner; we want thorough investigation of crime, but we don’t want to be snooped on in fishing expeditions; we want the prisoner to be seen as innocent till proven guilty, but don’t mind them being remanded in custody pending trial; we want prison to offer a discouragement, but it should not be unsanitary; prisons should be where inmates study for O-levels, not bank robbery techniques; warders should be unrestricted enough to mete out petty justice, but not so free as to commit every second sexual offence on the inside; the punishment should fit the crime, but we complain if it’s too lenient, and the prosecutor complains if the victim thinks it’s too severe; and a criminal record is a criminal record, so employment and reintegration become uphill struggles for the ex con.

If life as an ex con is tough, they should have thought of that before they committed their crime: maybe we should all think of that, before we design our criminal justice system, and decide what it is that it is intended to achieve with society’s failures. Or, like in Russia, do we need them as cannon fodder?

Forgiveness

Last week, I spoke briefly about forgiveness (https://endlesschain.substack.com/p/on-conscientious-objection). Although, I realise, this maybe comes over as somewhat brutal, forgiveness is a blessing that is given by, and sometimes demanded of, him who has been harmed. It is a means of settlement, like a cheque is. It springs from a pang of generosity within the individual. It is voluntary and it ought to be unconditional—except that it is usually conditional. It springs from the creditor’s conviction that: to exact his debt is wrong.

(I’m sure many will vehemently disagree with that, but the incentive for forgiveness is frequently—not always, for instance Mrs Lifshitz, as referred to here—that the wronged party feels that the debtor regrets their action, and the wronged party does not wish to maintain a grudge against them if they are sorry; hence, even if freely given, forgiveness is conditional on a sense of I’m glad I did not bear that grudge, and therefore of benefit to the forgiver).

For that reason, the creditor wants to know whether exacting the debt truly is wrong or not, and they invariably test that against an expression of regret on the part of the debtor. We treat forgiveness as if it were a commodity, to be traded. And traded it often is: a bank will forgive a debt but never as an act of generosity; instead, it will agree to a debt restructuring or to the addition of new contractual arrangements to offset the loss they would otherwise suffer. Even debt that remains unpaid after a bankruptcy is not forgiven; if it were, no court would ever need to issue a final bankruptcy order, even in the face of the debtor’s manifest impossibility of making payment.

So, whereas the primary means of settlement for matters of guilt across the length and breadth of normal society is indeed forgiveness (the word sorry, followed by that’s okay), a court of law does not deal in forgiveness. Forgiving the convicted criminal of his debt is not, qualitate qua, within its remit. It may issue punishments that are tantamount to it, like warnings, suspended sentences, and the reduced sentences in exchange for cooperation (which introduce an element of free-market bargaining into a process so often designated as a simple contrast between right and wrong), but forgiveness as such is not in.

For the individual, forgiveness takes effort: it is the relinquishment of a right. Yet rights are a creature of Man’s ingenuity. We talk about animal rights, but animals do not recognise the rights we endow them with; they can’t understand a right and an obligation, but we can. So we create rights, for animals and for ourselves. But forgiveness does not spring from a right, or indeed from an obligation, except to the extent that it is Christian teaching to pray daily to God that He forgive us our trespasses as we forgive those who trespass against us (whatever that means: we should pray that others will forgive us, as we forgive others, surely). Because we invented rights, we remove forgiveness from the realm of the visceral—where it resides along with love, hatred, fear, confidence—and relocate it within the realm of the transactional. For him who forgives (like Amon Goeth in the film Schindler’s List, when he speaks of pardoning wrongdoers), it is a burden that rests on him, the wronged, and is one that only he can discharge. He alone can discharge the burden of forgiveness and therefore, often, in his mind, he must first verify that forgiveness is warranted: once a pardon is given, the right to claim the debt is forfeit. So the question that reigns is: do you deserve to be forgiven? instead of the more appropriate question within the mind of the wronged: does my conscience ask me to seek retribution, or to forgive my debtor his fault? To burden the responsibility for that decision with an evaluation of whether the forgiveness is deserved or not makes it transactional, aleatory, a sort of conditional gift. And, just as when we give presents, we first evaluate whether the recipient is deserving of it, whereas the essence of giving is not the benefit to the recipient, but to the giver (https://endlesschain.substack.com/p/eyes-of-needles). (Like working out: benefits the athlete, not the people he sprays with his sweat.)

The victim at the centre of criminal justice

The sociology puts it thus: the criminal offends, but against what? What is the law? The victim’s law? The crime is not really committed against the victim, the act is. The victim’s harm is the test of whether the criminal has transgressed the law against society. It is therefore society’s debt, not the victim’s. Conflating these two ideas leads us into labyrinths of contrary interests and confusion, and does not serve to define clarity on what we actually want from our criminal justice systems: whether it is retribution, elimination of a danger, reform of the criminal, useful deployment in the working population, or useful deployment in the imprisoned working population, reduction or augmentation of the costs of incarceration, employment for the prisons service, whatever, these policy objectives vie and conflict with each other throughout the process of criminal prosecution and punishment, and all of these convene ultimately under a label that means them all, and, at the same time, none of them: justice.

The victim should rightly be compensated their loss, be it non-pecuniary or pecuniary, on the same basis as under the law of negligence. If the culprit lacks the means, society must step up, in terms of its general philosophy of justice—the same philosophy that deems the criminal should go to prison: there must be a compensation fund, a sort of social security insurance against being harmed by penniless criminals. Besides its obvious practical application, the fund would demonstrate that the society setting it up has a deep-seated sense of social justice. There is no objection to punishing a crime under the criminal law and compensating the effects of that crime under welfare law: for example, the crime of wage theft is a matter treated as a civil wrong (it’s a gesture toward the corporate thieves among us, rather than based on any solid judicial theory), whereas theft from a shop counts as a criminal matter. Well, victim compensation is another area where the criminal and, in that case, public law domains cross.

In terms of the criminal prosecution, the victim’s harm goes to show the severity or otherwise of the act causing that harm: if the principle is that individuals must be held responsible for their actions, then we need to know what the results of their actions are, and that will be a test of the harm done (and is assumed to be a test of the severity of the act).

Thomas Crooks, who injured Donald Trump by shooting at his ear, will never stand trial for his crime, because he was shot dead at the scene. Mr Trump survived the attack, by half an inch. The same shot, shot with the same intention, in the same circumstances, but half an inch to the side, would have killed Mr Trump. The judicial penalty meted out to Crooks would have taken account of whether his shot killed or did not kill Mr Trump. Mr Trump’s compensation, if any, would have been based either on the pain suffered from his ear injury or, in the hands of his beneficiaries, on his death as evaluated in terms of the loss to his wife and family. This is results-based justice: it looks only at the result of the crime to determine the intention that underlay it. Is that a sound basis for a system of criminal justice? Whether it is or not, it is for a large part the system we have. But, whether the intention is viewed lightly or severely is almost a matter of luck and, for the same money, one could view the results in the hands of the victim as bad luck. Bad luck is a judgment that gets handed out in many other areas of society (insurance, statutory crimes, standard term contracts, price gouging …), so we’re not that far off that kind of approach in terms of criminal justice (I know a man in Germany who was raped when he was 18, and the prosecution was dropped for want of public interest in the matter).

Victims do not administer prisons. They do not operate criminal investigation bureaux. They do not sit on court benches. One reason they don’t do these things (although those who do do these things may one day be victims) is to maintain fairness. The rancour that led to the criminal act should not be perpetuated in its prosecution as a crime. But, aside from constituting evidence of the criminal act that is prosecuted, the victim is situated outside the bounds of the state’s pursuit of the criminal: victims matter, but not in the relationship between the state and the criminal; they matter in the relationship between the state and them.

The state is a mediating instance: it institutes laws governing citizens; it prosecutes breaches of those laws; it punishes the guilty; it sympathises with the victims its laws were designed to protect; but, from its neutral position, it cannot take the victims’ part. The criminal justice system does not serve victims as such. It does not render justice to the victim; it serves and renders justice to the society that has been wronged by the criminal act, against which society has enacted laws, and for the pursuit of which it has created institutions, to repress the conduct complained of. The debt, if thus one wishes to express it, is owed in this case not to the victim, but to society.

In moves to re-sentence the culprits (who are serving life) in the case of the Menendez Brothers in California, USA (who murdered their parents in 1996 pursuant to a history of sexual abuse carried out by their father and encouraged by their mother), the Los Angeles District Attorney, George Gascón, believes the brothers have paid their debt to society. That’s right: the debt for the murders is owed to society; there is another debt owed to the deceased, and, theoretically, their nearest and dearest. But this debt, the life sentence for the two murders, is owed to no one but society. It is our society that has been harmed by the act of the criminal. It is that society that will punish it. And, when the punishment is completed, so I would like to think, it is that society that will welcome the miscreant back into its fold and issue them with their quietus: paid, in full and final settlement.

We hobble on through the 21st century with a criminal justice system (wherever we might be) born of Middle-Age superstition and spitefulness, trying somehow to reconcile a host of competing arguments for and against types of punishment, bonds, police powers, sentencing, judicial independence and victims’ rights, among many others. Aside from international cooperation in seeking the wanted, each country’s problems are identified as singular to them, but it’s worth at least looking at what measures in other countries work, or don’t work, or work but bring other issues.

Today, an investigation is being started into Rodrigo Duterte, former President of The Philippines, during whose term in office and at whose express behest 30,000 extrajudicial killings of suspected, purported and actual drug dealers were carried out, for many of which police officers received a million pesos of reward, which, it is contended, resulted in a cobra effect.

Ecuador has been praised for the evisceration of gangs there under the policies of President Daniel Noboa, who explained an incursion into the sovereign territory of the Mexican embassy in Quito, Ecuador’s capital, thus resulting in the severing of diplomatic relations between the two countries, as exceptional decisions to protect national security, the rule of law and the dignity of a population that rejects any type of impunity for criminals, corrupt people or narco-terrorists: he breached the rule of law in order to uphold the rule of law.

Meanwhile, nearby President Nayib Bukele of El Salvador virtually wiped out his country’s gang problems after he had supposedly feigned doing so under his controversial 2019 Territorial Control Plan, which blew open after there was a weekend killing frenzy in March 2022, resulting in Bukele doubling down on gangs, placing 12,000 new inmates in prison and reducing the homicide rate to just above that in Canada, a feat achieved, unlike in Canada some would argue, by switching one of El Salvador’s greatest bugbears for a martial state.

The Netherlands, on the other hand, has so few inmates in its prisons, having reduced their population by 40 per cent, that it’s actually started to close or repurpose them.

In the United States, there have been so many death row causes célèbres that perhaps that country should be looking seriously at abandoning its death sentence policy and asking whether it even serves any purpose, given that it’s usually implemented many years after the facts have been long forgotten by all but a handful, as a quiet and largely irrelevant footnote to a case file in which the conviction itself may not even be that secure.

Victims should be heard, yes, and they should have a route to vent their anger, via the press. But it should not be a voice that is cosseted by the judicial system and it should not influence juries. The jury, as an integral part of the judicial system, should be isolated from any influence that could be imparted by prosecutors cosying up to victims’ narratives: yes, we know the victim is a victim of crime; but, no, even if prosecutors think they do, the jury does not yet know whether the guy on the stand is the one who did it. What prosecutors do in favouring victims’ stories is feather their own nests, promote their own career advancement, sometimes with well meant intentions, but sometimes not: it is mission creep. Victim assistance should be a role of social services, and not the courts administration. The irony is that, when victims themselves plead for leniency, as was the case with Sadik Baxter (https://endlesschain.substack.com/p/twelve-men-good-and-true), they often go ignored. That, at the very least, should indicate that their concerns may be fawned over, but they, too, are often simply pawns in a big chess game, and criminal justice has to stop being a game in which everyone wants a piece of the pie.

It is not a pie. It is a pancake. A playing field that must be, and be seen to be, as flat as one of those.