Judicial Discretion and the Managerial State

Judicial Discretion and the Managerial State
Sean Gabb
(1st January 2016)

Any system of criminal justice worth the name needs to reconcile humanity with certainty. On the one hand, part of the function of the criminal law is deterrent. When you know that you will go to prison for six months if you smash someone’s window, you may be less inclined to pick up the stone than if you believe you may get an absolute discharge or a whipping. Another part of the system’s function is to match severity of sentencing to the perceived gravity of offences. We need to see that breaking a window is less of a crime than breaking someone’s nose, and that murder is much more of a crime than either.

On the other hand, no set of laws can take into account every set of circumstances. Should someone who steals a loaf of bread for a bet receive the same punishment as if he had stolen it to feed his hungry children? We can write in allowances for age and mental capacity. We can write in examples of mitigating circumstances. But rigid sentencing tariffs will always lead, sooner or later, to perceived injustice of punishments. Indeed, unless the system is in the hands of human robots, rigid tariffs will usually be circumvented in practice. Before the nineteenth century, English juries would often acquit rather than see a defendant sentenced to death or transportation for a crime of passion or an uncharacteristic lapse. Or judges would pass sentence, and then approach the King or his Ministers for a pardon or a commutation of punishment. Later on, the prosecuting authorities would bring lesser or greater charges, depending on how they saw a defendant.

By the twentieth century, both in Britain and America, a criminal justice system had emerged in which, murder and treason aside, offences had minimum and maximum sentences laid down in the law, and it was up to the judges to decide what sentence was appropriate within these bands. Sometimes, a judge was too harsh or too lenient. On the whole, however, the system worked. It reconciled a general hierarchy of punishments with a reasonable faith in the justice of punishment for each individual case.

In Britain, the system is now breaking down. Take these examples:

In January 2013, Chelsea Lambie and Douglas Cruikshank attached bacon to door handles and threw strips inside the Edinburgh Central Mosque in Scotland. In June 2014, Lambie was sent to prison for twelve months and Cruikshank for nine months. [Pair jailed for Edinburgh’s Central Mosque bacon attack]

In June 2014, an Islamic teacher called Suleman Maknojioa was found guilty of sexually molesting one of his eleven year-old female students. He was let off going to prison because the Judge accepted that his wife’s English was too bad for her to function in England without him to take her about. [Islamic teacher who sexually abused girl, 11, as he taught her the Koran spared jail because his wife doesn’t speak English]

I could fill a whole article – I could fill a small book – with similar instances of differential punishments that must shock any reasonable sense of right and wrong. I am not saying that the wilful desecration of a place of worship should go unpunished, or even that the case given above should have been punished exactly as if the defendants had left bacon in a church. But prison for sacrilege and a suspended sentence for sexual assault of a child – where is the justice in that?

The answer is that the criminal justice system has been politicised. It still dispenses justice, but the justice dispensed is no longer our justice. It instead reflects the sense of right and wrong of a ruling class that has no regard for the moral views of ordinary people, but is committed to a revolutionary transformation of British society. Stupidity aside, there are no mitigating circumstances for those Scottish bacon-layers, and they deserved some punishment. But their real crime appears to have been that they disobeyed the prime commandment of the modern law, which is to act and speak at all times as if we really were living in a multicultural love feast. Their actual crime was “hate,” or “intolerance.” The act of leaving bacon in a mosque was only evidence of their crime. As in Rotherham [Rotherham child sexual exploitation scandal], the sexual abuse of children may be at best a minor offence, to be lightly punished, if not systematically covered up, when committed by one of the ethnic minorities.

But the corruption is more profound than the manipulation of sentencing guidelines. During the past twenty years in Britain – and perhaps also in America – the criminal justice system has been politicised at its heart. Traditionally, a criminal court has been asked to consider two elements of guilt – wrongful act (actus reus) and wrongful intention (mens rea). For example, murder is defined as “killing with malice aforethought.” If you poison your wife to lay hands on the insurance money, you have killed her, and you have killed her deliberately. You have committed murder. If, on the other hand, you kill her by accidentally knocking her off a ladder, or letting her catch your cold that then turns to pneumonia, you may only have been negligent. You may be guilty of manslaughter or nothing at all. But you are not guilty of murder.

Beginning with the Crime and Disorder Act 1998, the British ruling class has added a further element, which is motivation. For example, if you commit grievous bodily harm against someone of your own race or religion, the maximum prison sentence is five years. If you commit this against someone of a different race or religion, and it can be shown that you were motivated by dislike of that race or religion, the maximum sentence is now seven years. There is a consistent loading of punishments for virtually every crime against life or property.

According to the Crown Prosecution Guidance Note:

[T]here are common problems that are experienced by victims of racist of religiously aggravated crime. They can feel extremely isolated or fearful of going out or even staying at home. They may become withdrawn, and suspicious of organisations or strangers. Their mental and physical health may suffer in a variety of ways. For young people in particular, the impact can be damaging to their self-esteem or identity and, without support, a form of self-hatred of their racial or religious identity may result.

This may be the case. But it can be the case with any assault, regardless of motive. The effect of the law is to make opinions into crimes. If you get into a fight with a black man, and you are charged with assault, you will be in greater trouble if the police then search your home and find copies of books by Enoch Powell, or if your browsing history shows that you read articles on VDare. Again, some part of your crime will be “hate,” and, again, the specific assault will be merely evidence of this.

A through tyranny, such as Bolshevik Russia, can get away with perverting the law in this manner. In a semi-free society, such as Britain or America, the natural result is gradually to bring the criminal law into scandal, and its officers into contempt. The main danger is probably not that differential punishments will lead to thorough tyranny. There is still the possibility of a reaction. The danger is that all law, of whatever kind, will be seen as an expression of rule by a malevolent ruling class, and that all the safeguards of life and property will be weakened. A further danger is that if, or when, the reaction comes, the idea of sentencing discretion will be so discredited that the balancing of certainty with humanity will be forgotten, and we shall find ourselves with a criminal law written in letters of blood.

Sadly, given the nature and current progress of the revolutionary transformation mentioned above, it can be doubted whether something unpleasant can be avoided.

10 thoughts on “Judicial Discretion and the Managerial State

  1. Whenever the UK’s current criminal laws are up for discussion, I can’t help but hark back to how crime is reported today… and how crime statistics are often used for political gain.

    I recall being sent to a police station to report a crime in the late 50s. My parents had sent me to report a crime. A bike had been stolen from our garden (we called it the ‘yard’). I was about 9 or 10 years old.

    After arriving (a purpose built stone Victorian building) and walking inside, a little banter took place after the two cops on duty had stopped talking to each other. Unlike my brother, I never looked smart – what possible use combs had I’d yet to discover. The two men probably thought I was handing myself in. But what I noticed when serious-voiced talking started, was a huge stiff-backed book lying already open on a large wooden counter. One of the cops asked what crime my parents said had been committed. With careful detail, I mean counting cash careful, all the facts were written down. It took quite a time. Maybe 20 minutes. Then the two of them said something funny and told me to report back to my parents and that they should expect an officer to call and investigate the matter. The book was large and well used. It would not have been easy to add or delete stuff from it without it looking a tad suspicious. Similar books, I assume, were in use throughout the UK.

    Crime back then was therefore obviously being reported in a responsible manner.

    Today that’s all gone. Cops today scribble on bits of paper, or log vital information on mobile devices. All of which will delete or adjust to suit whatever. The result being that I pay no attention whatsoever to official crime figures. They’re open to abuse and the police have sadly become propoganda tools of the state.

    I’d trust a 25 year old squaddie in uniform now more than I would a cop. It’s time we saw a return to crimes being both reported and logged in a way that cannot be tampered with. Every crime, false or true, logged. Cops who flout the law risking jail time. Crime figures are not there to help the likes of Cameron gain more prestige, wealth and power.

    Enjoyed reading the above Sean. Good start to the new year. Thought someone else here might have noticed what I noticed all those years ago and also took note.

    Happy New Year 2016 to all.

  2. A well written and thoughtful piece, Sean. I agree with every word of it, but what are we going to do to rectify the problem?

    It is clear that there is, and there has been for a long time, an agenda to transform our society in a way that few of us would wish. I have my own views on why this is happening, and who is behind it all, but to express those views would most certainly be against the law and would no doubt attract a harsh penalty. So that’s the dilemma: do and say nothing, and watch every aspect of your own society slowly destroyed, or speak out and have the full force of a ruthless and determined elite visited upon you?

    Be sure of one thing, what is happening isn’t just ‘happening’. It is a deliberate long-term policy being ruthlessly pursued by a determined minority. Once the majority recognise that clear fact, then the solution will be easily found.

    • I suspect I know what your solution might be. The trouble is, the determined minority has all the weapons in reality; this is with the possible exception of the Armed Services, which are being steadily reduced to an importance that will be nugatory, should any of them decide to support The People against The Establishment.
      One wouldn’t be at all surprised to find that the British Police routinely decrypt and read General-Staff and even Regimental-level communications. It’s possible that the rest of the British-Anglosphere has not gone so far yet down this road, but for sure Australia and Canada seem to be moving rather faster and in the open also.
      Frankly, I think the current War is lost, and we must simply hunker down, try not to get noticed, and wait out till better times may (or may not) come.
      One is reminded of the general air of pessimism about the future noted in “The Lord Of The Rings”, in which upon the disappearance of King Earnur of Gondor in the torture-chambers of Minas Morgul in the 1980s of the Third Age, the Stewards ruled in their stead, “until The King May Come Again”. It took more than 1,000 years. One must hope it won’t be that long for us, but I really can’t see a way out.
      Your solution would have a chance of working, more or less bloodlessly in relative terms to the numbers involved, if all 40-million right-thinking-people (that is; those who are right) were to rise up together. To Arm Bears would be more or less unnecessary then; perhaps fewer than tens of thousands of Citizens would be slaughtered before the Establishment caved in. the trouble is, modern people are not used to mortal sacrifice, and it would be a matter of who blinked first.

  3. This is a brilliant article. I personally believe that such judges who let off Muslim child molesters for concocted reasons, such as the need for them to remain out of prison to support non-English-speaking wives (er??? why do we casually assume such people should not have to learn English?) are guilty of grave crimes, i.e. judicial abetment of child abuse. Everything is turned upside down where the judges themselves appear to be criminals. I would, in a heartbeat, impeach such judges and I have the punishment in mind.

  4. Very good piece, however I would take issue with the notion that the criminal justice system can administer ‘our justice’. I suppose you mean that the system reflects what are believed to be popular values and priorities. I would take a crudely Marxian view of things, in that I think that the matter is reducible to economics. It could be ‘our’ justice system if society were resource-based in some way, but it was never, and could never be, ‘our’ justice system in a society based on private ownership and wealth disparaties of the kind that exist in capitalism.

    • Before about 1960, there was a rough fit between popular notions of right and wrong and the criminal justice system. Certain kinds of property crime were punished more harshly than the Man on the Clapham Omnibus might have wanted. There were certain offences that were not regarded as crimes by TMOTCO. Certain things he found abominable were not crimes. But there was a reasonable fit. We are now moving away from that fit at an accelerating speed.

      The reason may be that the ruling class pre-1960 was concerned to be seen as legitimate, whereas the new ruling class hopes to rely on force and lies while it goes about reconstructing our nature via the schools and media. If so, it is a hope dangerous for all sides.

  5. Pingback: RRND, 01/04 - Venezuela: Combative opposition leader will head Congress - Thomas L. Knapp - Liberty.me

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