Twenty years ago I was involved in a series of
international sentencing seminars. Judges from across Europe would present real
life but anonymised cases from their jurisdictions which would then be analysed
and discussed to establish what penalty would be likely in other countries. The
method was intended to get away from a dry analysis of penal codes and case law
to understand what really happens in courts’ practice. The aim was to try to
expose what we thought were the harsh practices of the British judiciary compared
to their European counterparts. For the most part our judges were indeed more
ready to send ordinary criminals to prison and for longer periods. I remember
one highly enlightened and philosophical German judge, Hartmut Horstkotte , who
was reluctant to send almost any case to jail, constantly probing the purpose
of imprisonment. When prison was unavoidable he always argued for the shortest
possible term, ideally suspended.
The picture changed when our Dutch hosts presented the case of wholesale importation of cannabis to the Netherlands. A businessman had, over many years, paid off police and customs officials to allow him to supply the “Coffee Shops” where retail sale for personal consumption was not prosecuted. From memory, the English judges proposed a sentence of 5 years or so and were, like me, astounded when the normally lenient Horstkotte announced his opinion that the right sentence in this case was 20 years. In his view, corrupting the system was a far more serious matter than an individual act of delinquency. He reasoned that acts which endanger the fair operation of the rule of law are both deserving of retributive and deterrent punishment.
I wonder what he would have made of the Chris Huhne and Vicky Pryce case?
I think he would have
had sympathy with the judge’s view that the case goes to the heart of the criminal
justice system whose operation somewhat paradoxically depends in part on those
who have broken the law acting honestly. When people are found not to have done
so, courts sentencing them have little room for manoeuvre. The picture changed when our Dutch hosts presented the case of wholesale importation of cannabis to the Netherlands. A businessman had, over many years, paid off police and customs officials to allow him to supply the “Coffee Shops” where retail sale for personal consumption was not prosecuted. From memory, the English judges proposed a sentence of 5 years or so and were, like me, astounded when the normally lenient Horstkotte announced his opinion that the right sentence in this case was 20 years. In his view, corrupting the system was a far more serious matter than an individual act of delinquency. He reasoned that acts which endanger the fair operation of the rule of law are both deserving of retributive and deterrent punishment.
I wonder what he would have made of the Chris Huhne and Vicky Pryce case?
The seminars revealed that that the going rate for punishing offences varies widely across Europe. As one participant observed, in their discussions, judges were using different currencies. In a report last year for the Criminal Justice Alliance I found this is still the case.
The real message of the case is the need for a downward revaluation of punishment levels across the board. If public services are reducing spend by 20% over five years so too should our sentence lengths. Were this to happen , Huhne and Pryce might have satisfactorily been punished with a large fine, a period of house arrest monitored by a tag and some meaningful community payback. I'd like to think that this is what Horstkotte would have imposed.
Great blog.
ReplyDeleteBTW In the land of mass incarceration (USA), a federal offense might have led to a large fine assessment that goes to pay for victim assistance and compensation (VOCA). Often offenders like these offer (yes the defense offers) community payback that includes both large gifts to some relevant charity and commitment to talk to their fellows about why not to do this.