Is "double jeopardy" wrong?

My apologies to readers who may find the following a bit scrappy in style - it is Sunday and I ought to be doing other things in my real life!

Scotland, where the murder rate is double that south of the border, is now considering allowing “double jeopardy”; that is, trying someone more than once for the same offence (this has been possible in England since 2005). Libertarians will worry that the State can persecute individuals using judicial process; even that possibility is something of an extra burden on the citizen.

Penalties for the most serious crime, murder, are not so severe as they once were. There is no death penalty, and life imprisonment rarely turns out to be that: the average time served for mandatory lifers in the UK is 14 years. (Other, non-mandatory life sentences end up as 9 years served, on average.)

Perhaps one could work out the change in penalty as some kind of life-related formula. Let's assume for the sake of argument that life in prison is the same as no life at all. In that case, the death penalty is the loss of 100% of the rest of one's life, irrespective of the time between conviction and execution.

By contrast, how much of the criminal's life does life imprisonment take away? It depends on how old he is when the crime is committed, and how long he might be expected to live afterwards. I can't easily find statistics on the average age of murderers in the UK, but in the US it appears to be around 27. In the UK, life expectancy at birth varies for males according to social class, from 80 to 73 years (further complicated, I should expect, by variations in infant and juvenile mortality rates). Thus the penalty of life imprisonment represents 14/(73 - 27)% = 30% of remaining life.

I've read that before capital punishment was abolished, British juries were more reluctant to convict in cases where the death sentence might be imposed, but I can only guess at how far this might alter the probability of a "guilty" verdict. Shall we say, a difference of 20%? That would mean a penalty factor of (100*0.8)=80% for the death penalty, versus 30% for "life".

The discrepancy may well be less than this, since for many convicts, prison is safer and healthier than the life they face outside. The retired prison doctor "Theodore Dalrymple" has often noted how his patients throve "inside", where largely they were off illegal drugs and were reasonably well-fed. If after serving his time the ex-convict lives a shorter (nastier, more brutish) life, then his prison sentence has consumed a greater proportion of his post-conviction existence.

Wrongful conviction is always a concern. In Parliament in 2006, Mr O'Hara asked "how many miscarriages of justice there have been in capital cases which have resulted in a payment of compensation in the last 30 years", to which the answer was, that there were only four cases. Perhaps it's because forensic science has advanced very considerably since 1964, when the last execution was carried out in England. But the American experience suggests other factors masking miscarriages of justice, including: "Lawyers in many capital cases are lousier than the norm." There's no making up for a mistake, in the case of capital punishment (unless we return to the ancient principle of "weregeld").

What about deterrence? From the foregoing, "life" seems to be perhaps half as onerous as the death sentence. Yet US criminologists appear to agree that the death penalty does not have a significant deterrent effect. Could we argue that in many murder cases, the circumstances of the crime are such the perpetrator simply doesn't consider the potential consequences for himself? Would the same number of such crimes be committed, even if there were no legal penalty at all?

One might argue that deterrence is not the main point, and the penalty, whatever it may be, is simply a punishment that fits the seriousness of the crime. In which case, why is the crime treated so much less seriously than before?

On the other hand, maybe deterrence is an argument, after all. The journalist Peter Hitchens has argued that the murder rate in Britain would be far higher (I think he said, by a factor of about 10), were it not for huge improvements in medical procedures over the last 40 years, that now save the lives of many victims of violent assault. If that is so, then there may well be a correlation between severity of punishment and the crime rate, after all.

Perhaps greater certainty of conviction is the greatest deterrence; but that can't be easily achieved. If re-trial significantly increases the probability of successful and just conviction, it might go some way towards evening-up the odds in terms of deterrence. But I doubt that it will greatly improve conviction rates overall, not least because there will be opportunities for the defence to claim that the outcome has been prejudiced in some way by matters relating to the previous trial and the associated publicity. And I would think there would not be many re-trials approved by the Crown Prosecution Service (or its Scottish equivalent), since they will have to consider the chances of "a result" second time round, and also bear in mind the issue of the presumed-innocent citizen's right not to have his life consumed by legal pestering, for which monetary compensation may never be sufficient.

So I think it's always going to be extremely important to "get it right first time," and I don't think a second pop at the target is going to make enough difference to justify the inconvenience to the accused in cases that don't succeed.

As to sentencing, an incorrect conviction is always wrong, but a death sentence for the innocent is absolutely wrong. Yet for the guilty, the penalty for murder is far less heavy than it used to be, and that, too, seems unjust and quite possibly it has also been one of the reasons for an increase in potentially lethal assaults.

So to me, it would be better to increase time actually served in jail, in cases where the judge determines that consideration of consequences was, or would likely, or (after making allowance for emotion) ought to have been in the criminal's mind at the time of committing the act. (a) I think it would increase the deterrent effect, and (b) opinion may differ, but I think it would be deserved, at least in "serious" cases.

There should also be the swiftest and fairest treatment of appeals, so that where there has been a miscarriage of justice, the innocent should be released as quickly as possible, and compensated handsomely. The State itself needs a deterrent.

Conspiracy, not c*ck-up

Michael Hudson sees the current crisis as deliberately fomented, and intentionally anti-democratic (htp: Anon, on Nourishing Obscurity). The economic is now shading into the political:

What do you mean “failure”? Your perspective is from the bottom looking up. But the financial model has been a great success from the vantage point of the top of the economic pyramid looking down. The economy has polarized to the point where the wealthiest 10% now own 85% of the nation’s wealth. Never before have the bottom 90% been so highly indebted, so dependent on the wealthy. From their point of view, their power has exceeded that of any time in which economic statistics have been kept.

You have to realize that what they’re trying to do is to roll back the Enlightenment, roll back the moral philosophy and social values of classical political economy and its culmination in Progressive Era legislation, as well as the New Deal institutions. They’re not trying to make the economy more equal, and they’re not trying to share power. Their greed is (as Aristotle noted) infinite. So what you find to be a violation of traditional values is a re-assertion of pre-industrial, feudal values. The economy is being set back on the road to debt peonage. The Road to Serfdom is not government sponsorship of economic progress and rising living standards; it’s the dismantling of government, the dissolution of regulatory agencies, to create a new feudal-type elite.

Meanwhile, Karl Denninger makes his case for the perpetrators of the credit crunch to be penalized under the US laws relating to mail fraud.

Snap

Denninger:

JAIL the fraudsters, including those in Congress, Treasury and on Wall Street. Bluntly - if we can find a predicate felony to nail you with in this mess, off you go.
REMOVE all of the overseers. This includes The Fed. Set up a new agency that is charged with enforcing all of the laws related to the financial system including The Federal Reserve Act, and empower them with subpoenas. Direct that they must act and operate "in the sunshine", with everything published on The Web. You do an evil thing, the public sees it. They try to hide it, the public sees it.
DEFAULT all the bad debt. Yes, this "booms" a lot of banks. Tough.
SET UP new banks. Take the remaining $350 billion and capitalize ten banks with $35 billion each. IPO them to the public. By law no officer, current or former, of an existing public bank may serve on these firm's boards. Now we've got the means to replace the credit creation the boomed banks can't do any more.

Uncanny. We agree pretty much exactly. Either he's an amateur, or I'm a professional.

The MSM take up the punishment theme

Nassim Taleb and Pablo Triana echo my call for condign punishment for the white-collar thieves.

A lesson from 1721

The South Sea Bubble ended in the imprisonment of the Chancellor of the Exchequer, John Aislabie:

The South Sea Company had been built on high expectations which it could never fulfil, and it collapsed in August 1720. An investigation by Parliament found that Aislabie had been given £20,000 of company stock in exchange for his promotion of the scheme. He resigned the Exchequer in January 1721, and in March was found guilty by the Commons of the "most notorious, dangerous and infamous corruption". He was expelled from the House, removed from the Privy Council, and imprisoned in the Tower of London.

Aislabie was replaced by Robert Walpole, who became in effect Britain's first modern-style Prime Minister - who earlier had spent six months in the Tower in 1712, as a result of unjust impeachment by his political enemies.

Now, who will be properly prosecuted and properly punished for a man-made disaster that has undermined the world's banking system?

Make the punishment fit the crime

After this, and this, I begin to think about about the return, not only of capital punishment, but the gibbet. I really never thought I'd get to this stage; but I never thought society would, either.

Crime and punishment

Henry Wallis: "The Stone Breaker" (1857)

(I've brightened Wallis' painting above, but the foreground in the original is very dark, making a contrast with the gleaming, unreachable beauty of the twilit sky and its reflection on the lake.)

In a country with proper justice, nobody would dare intimidate a witness.

In such a country, wrongdoers are afraid of the law. They'd know that such a crime would certainly be prosecuted and that they'd end up doing at least 15 years breaking rocks.

... says Peter Hitchens in today's Sunday Grumbler.

"Pitee renneth sone in gentil herte," said Chaucer, sometimes ironically. The worthy compassion shown to unfortunates by the Victorians has, gone too far, some argue.

But there are now different reasons to pity. Prisons do not punish the wrongdoer in the old-fashioned ways, but the incarcerated man is no longer protected against bullying, beating, buggery and theft. In how many movies do we hear the police threaten a criminal with what his fellows will do to him in prison? Judge Mental does not put on his black cap and say, "You will be taken from here to a place of detention where you will have your arm forced up your back and..."

Then there's life outside, for the neglected underclass. "Theodore Dalrymple", a doctor who has dealt with many prisoners in Birmingham (UK), used to note in the Spectator magazine that prisoners' health improved considerably in prison, because of no (or reduced) access to drugs. Read the good doctor here on how the liberal approach to mind-altering substances is pretty much a sentence of death (prolonged and degrading). Here's an extract on alcohol:

I once worked as a doctor on a British government aid project to Africa. We were building a road through remote African bush. The contract stipulated that the construction company could import, free of all taxes, alcoholic drinks from the United Kingdom...

Of course, the necessity to go to work somewhat limited the workers’ consumption of alcohol. Nevertheless, drunkenness among them far outstripped anything I have ever seen, before or since. I discovered that, when alcohol is effectively free of charge, a fifth of British construction workers will regularly go to bed so drunk that they are incontinent both of urine and feces. I remember one man who very rarely got as far as his bed at night: he fell asleep in the lavatory, where he was usually found the next morning. Half the men shook in the mornings and resorted to the hair of the dog to steady their hands before they drove their bulldozers and other heavy machines (which they frequently wrecked, at enormous expense to the British taxpayer); hangovers were universal. The men were either drunk or hung over for months on end.

Our soft-handedness on crime and drugs, is really an extreme hard-heartedness.