In the first article on this topic, I established that removal from society and deterrence are valid reasons for sending people to prison, and that retribution, punishment and rehabilitation are not. I would like to look at the implications for the justice system in general, and sentencing in particular, of this.

I would like to return to the type of person that I described previously as destructive – someone who will leave a trail of destruction in his wake, either within or without prison. This is not someone who commits an assault every ten years, or gets into a bar room brawl every so often. This is someone who has a string of convictions for a range of different offences, normally including theft, assault and breaking and entering, and who commits a crime every month or two while outside prison. It is a person who is selfish to the extent of taking what he wants and doing nothing in return. In short, it is someone who can never function as a responsible member of society, and who will make life a misery for anyone unfortunate enough to cross his path.

After a set number of crimes over a long enough period of time, this person should be locked up for life. I think that the Three Strikes policy, as used in California and mooted (in a slightly different form) by the ACT Party in New Zealand is a bit draconian, but I also think that some number of strikes of a serious enough nature should be enough for the judges to be able to impose lifetime imprisonment.

Alternatively, if the courts are unable to impose a life sentence, there should be some way of stopping criminals from leaving prison. When a person comes up for release, the police should be able to apply to keep the person behind bars. The courts would then have the power to detain the person for longer, either forever or for some defined period of time.

The bleeding hearts' hearts would bleed a bit harder if this were ever implemented, of course, and their owners will speak of rehabilitation and human rights. Well, I have human rights too. I have the right to walk down the street without being mugged or murdered by someone who has done it repeatedly before and was on the lookout for another victim. I have the right to keep the things that I have bought and not have someone steal them.

The other flaw in the bleeding hearts' arguments is the assumption that all people can be rehabilitated. Even if everyone has some good in them, for many people the bad totally overwhelms the good. These people are just bad and will never change.

I have to confess that the thought of people being behind bars for being themselves, not for some specific crime, does make me a little uncomfortable. But that's not really the case, of course, because they got in there in the first place only because of not one crime but several, and anyway, I'm used to dealing with reasonable people, who are not necessarily angels but who rarely, if ever, break the law. The thought of people who assault, and even murder, with the same casual nonchalance with which the rest of us check our watches makes me even more uncomfortable.

Having a look at the list of reasons that we might send someone to jail, the most compelling is that of keeping them out of circulation. This is not so much a punishment for them as a way of keeping them from doing anything bad to anyone else. The distinction may sound pedantic, but if this is the basis for all judges' sentencing decisions - or, preferably, in the maximum and minimum punishment that are written into law - then there are some very different results, and for many crimes, the most appropriate punishment is no punishment. If this could be written into that statute books, that would be a good thing for all.

If a 16-year-old boy has consenting sex with his 15-year-old girlfriend, he may, by some legal definition, have raped her, and rape, by the common definition of it, is a very serious thing. But it's hard to see that he has done anything immoral, so he should not go to jail. Similarly, someone who has grown marijuana for his own use does not need to be removed from circulation, as he is no harm to society. In both of these cases, what the person does is not something that I would encourage. But is it not something sufficiently serious that jail should be used either as a deterrent to others or to keep the person out of circulation, and there should be no penalty in either case. And, if there's not penalty, it should not be illegal.

My final example of the type of person who does not need to kept out of society is someone who cannot, rather than should not, be deterred, and will be much more controversial. It's the women who are in abusive relationships with an abusive, violent and domineering partner who has threatened to trace them if they leave, and can see no way out other than to kill their partner. Sometimes, they are right: the partner is malicious and vindictive, and sees her as nothing more than a vassal, and decides that if she is not his then she is nothing. Sometimes this view is mistaken, and she could just leave - but cannot see the forest for the trees, so does not.

In this case, knowing that you will be sent to jail if and when you are caught is no deterrent. The only thing on the person's mind is exiting the relationship any way possible. It is also so highly improbable that the person will kill anyone else that there is no need to remove the person from society. Murder is a serious thing, but as with any other crime, there's more than one type of murder.

I have therefore reached two conclusions: The first is that jail should be for the crime, but in some cases it should be for the person. Some people will persistently reoffend and should not ever be released – these people will still be a threat to society even after they have served out their prescribed sentence.

In light of the above, I think that the whole criminal justice system needs an overhaul. If the laws (or at least the sections of them dealing with penalties) are focussed entirely on only one of these two things (crime, not person), and if the courts are convicting those who have done nothing wrong but the police are powerless to act against those who patently have done something wrong, then the whole process is wrong. It will probably never be changed, because it works in more or less the same way that it has always done and nobody wants to change it.

It would be a mammoth undertaking, because the one massive risk of basing a justice system on the person and not the crime is that it would be a lot easier for miscarriages of justice to occur. Nor should person-based sentencing be used as something that the self-righteous can hide behind when meting out their own justice.

The second conclusion is that, when somebody is to be removed from society, our current assumptions about how long this should be for may be incorrect. If someone is sentenced to, say, three years' jail, this means that he will be off the streets for three years. Does this mean that after two and a half years he will be a menace, and after three and a half he will be fine? Maybe we just need to say that anyone who needs to be removed from society should be removed for long enough to deter others.

Compare person-based sentencing to the alternative, which is crime-based sentencing. Crime-based sentencing is horribly fraught in terms of trying to work out an appropriate punishment. The assumption must be that a sentence that is twice is long as another is twice a severe, which in this case would have to apply to a crime that was twice as bad. But severity of crime is totally subjective and unmeasureable. Nobody can ever say that one crime is twice as bad as another, but some sentences are twice as long as others. Is this because the crime was twice as bad, or simply because two different arbitrary judgments were made? We can try, of course, and in practice specific penalties are prescribed for specific crimes, but this is largely on an ad hoc basis.

So on the whole, we need to look far more at the person and far less at the crime, and to decide what the

best place is for the person from society's viewpoint.

See Also: Crime and Punishment, Part I; Crime and Punishment, Part II