The Appropriate Sentence for a Crime

Almost everybody loves to whine about criminals getting off easy. That’s all he got? Four years? Five years? Twenty years? It’s not enough. They should lock him up for life. No wonder there’s so much crime!

I don’t know of any divine tablet or sacred spreadsheet that tells us what a “light” sentence is or what is a sufficient punishment for, say, a burglary, or an assault, or a rape. People routinely act as if they know but they usually only say it should be more than what it was. Always more. If you asked someone out of the blue how many years in prison a man should serve for, say, rape, I doubt that most people have a clue as to how to arrive at a particular number.

How long should a man serve for conning people out of money? 144 years?

The most useful measure, in my opinion, is the relative seriousness of a crime. And the “seriousness” of a crime should be measured in harm.  And what is a harm?  If you have deprived someone of a material good, or health, life, or limb. There, we are on firmer ground, though not in the clear.

What types of crime are there?

There should never be any punishment for thought crimes. You would think that would be obvious– I would have thought it would be obvious– but in the so-called war on terror, the U.S. is now locking up young men for talking about jihad even if they cannot be shown to have taken a single actual step towards committing an act of terrorism. Talking about a crime is not really a crime unless you proceed to commit the crime. Talking about using drugs without using drugs is not illegal. Talking about having sex without having sex is not illegal. But talking about jihad without doing any jihad will get you 20 years, especially if an enthusiastic FBI informant offers to supply you with guns and bombs.

There are “victimless” crimes like possession of drugs for personal use, prostitution, possession of pornography (which, under the Canadian criminal code, used to include depictions of homosexual acts). When people try to justify prosecution for these crimes they frequently give, as reasons, consequences that are already illegal under other laws: driving while drunk, assault, exploitation of minors. But if a man (or a woman) uses threats of physical violence to force another person into acts of prostitution, I believe he or she should be prosecuted for a) exploitation (taking the money earned by someone else’s forced labour) or b) assault. But if two independent adults agree to have sex with each other in exchange for money, the government should stay out of it.

Drugs are more complicated: prescription drugs should be regulated to ensure quality and accuracy of dosages.   Alcohol should be regulated to prevent minors from having access but what if someone brews their own?  I think it is possible to prohibit giving alcohol to minors but if a person wants to consume home-brewed liquors in his own home, the government should stay out of it.  And the government has no business telling anyone they can’t grow a particular plant and then stick its leaves in their mouths and set them on fire. As long as they don’t get behind the wheel of a car after doing so.

But then, why should the tobacco industry be regulated?  You see– it does get complicated.  There is a difference: the shareholders and managers of tobacco companies profit by deceiving customers into believing their product is harmless (and, at one time, glamorous).  That invites legitimate government regulation.  Could we have a world where commercial sales of tobacco is banned entirely but if someone wants to grow some in his backyard and smoke it that is entirely up to the individual?

Should motorcycle owners be required to wear helmets?  And if they don’t, would society be okay with denying medical care to a motorcyclist who chose not to wear a helmet and got into an accident that caused a head injury?  Ayn Rand might say, sure.  Our society would find that hard to stomach.  In the end, the most rational choice may be to require helmets.

There are property crimes. I think there should be a big difference between the punishment for property crimes and the punishment for crimes of violence. And I think the punishment for property crimes should be focused on restitution, not on revenge.

Crimes of violence should be taken very seriously, and repeat offenders should receive escalating sentences. This is one area where I have some sympathy for victims’ rights organizations– with limitations. Quite often, we hear mythical tales of someone who committed numerous violent acts and kept getting released after light sentences. In many instances, the story is more complicated than that: our judges are not stupid.

Capital Punishment is absurd: if we really believe that life is sacred and the taking of a life is a horrible offense, the last message we want to send to society is that we will do it too. Besides, as DNA testing has shown, we are all too frequently wrong in determining who committed the crime and a capital sentence cannot be reversed.

Unfortunately, what has happened in the U.S. is a ratcheting up of criminal sentencing. And the word “ratcheting” is exactly what I mean. A ratchet, if you don’t know, is a box wrench on a handle that can be switched to allow the user to quickly turn the handle back and forth while applying force in one direction only. In the U.S., over the last forty years, there has been constant political pressure to lengthen sentences without the slightest movement backwards. It has become politically impossible–thanks to the “tough on crime” wing of the Republican party– to advocate for lighter sentences for anything (though there are signs the U.S. is coming to their senses on the issue). As a result, sentences for some crimes in the U.S. have moved beyond severe to ridiculous and then to the sadistic and finally absurd. Yes, there are people in federal prisons in the U.S. serving 20-25 years for possession of marijuana. If you’re a rational person, you probably don’t believe me.

The benchmark sentence for violent crime should be 25 years for murder and there should be a chance of parole after 15 years. Hey, I can be specific. And you can quibble all you like about the exact number, but I believe that 25 is a rational, reasonable guess as to how much is appropriate and constructive. I believe that even a murderer should have some hope of being released some day if only to provide him with an incentive to change his life while in prison. Prison guards will tell you that it is not helpful for a prisoner to know that he will never be released no matter what his behavior is like, in prison.  He or she has nothing to lose.

Scale that down to three months for a basic assault that does not include sufficient violence to inflict permanent injury to the victim for a person who is not a repeat offender. It seems rational to me to give suspended sentences to first-time offenders in this category, particularly if they take steps to turn their lives around, especially making personal, public apologies and restitution.

The rest I will leave alone– it would take years of work and analysis and practice to develop a useful, sensible scale of appropriate punishments for violent crimes that fall in between murder and assault. Hey, we have that: it’s called the criminal justice system. It needs to be fixed, within parameters like the ones I suggest above, but it’s possible, because we do still have the miracle of rule by law.

And we must stop adjusting criminal sentences by blandly pleading for “more”.

Harold Shipman

In Great Britain, if you took a sampling of 1000 women between the ages of 65 and 74 who see a doctor regularly, you would normally find a death rate of 4.5 per year.

Of 1000 patients of Dr. Harold Frederick Shipman, the death rate was 45 per year. He began his own practice in Hyde in 1992. He was caught this year.

Uh yes… the numbers are not the result of chance or coincidence. Dr. Shipman has been injecting some of his patients with a fatal dose of diamorphine. He seems to have murdered 300 this way. Yes, does seem like it took a little while for anyone to notice.

Sometimes he would go into a patient’s file and alter significant facts, in order to establish the “illness” of which the patient died at his hands. No one noticed because the families of deceased patients do not get access to the deceased’s medical records.

A few people over the years became suspicious. The police were even called. But when the police went to the General Medical Council, which oversees doctors in Great Britain, they told them that unless an official complaint was received they could do nothing.

Since Dr. Shipman never summoned an ambulance or called for a coroner after any of the suspicious deaths, there were no records except his own, and therefore, no details about the exact circumstances of death, except those which he provided.

The local health authority investigated and found nothing suspicious. Again, it appears that they relied on Dr. Shipman’s records to verify Dr. Shipman’s performance. There is no system in place to monitor the performance of doctors. Think about that. There is no system in place to monitor the performance of doctors. In other words, a doctor could kill 300 patients and no one would be the wiser. Well, yes. That’s what happened.

The first public reports of the investigation of Dr. Shipman were met with outrage by the citizens of Hyde who felt that a good doctor was being tarred with a broad brushstroke. Obviously, the good citizens of Hyde hadn’t noticed anything odd either. Here was a doctor who murdered patients with great frequency. The patient’s families were notified of the death. The bodies were cremated or buried. Nobody kept score.

The police finally seized Dr. Shipman’s medical records. Ah, but they didn’t obtain the proper paperwork beforehand and had to return them. Imagine the police seizing a knife or a gun from a suspected murderer, and then being ordered to return it to the suspect because they hadn’t said “may I”? To get around this little technicality, the police charged him with homicide. Then they were permitted to investigate.

Altogether, as I said, Dr. Shipman may have killed more than 300 women.

Sometimes he did the killing in his office and saw several more patients before reporting the death.

Now this may sound like a bit of stretch, but ask yourself this, in connection with Dr. Shipman’s offenses: how do you know that your doctor is doing a good job? I’m serious. I mean, you know that your doctor is not likely to inject fatal quantities of diamorphine into your veins, but if a doctor in a developed country can get away with doing this to hundreds of women over a period of ten years, how much less likely is it that your own doctor can get away with being completely incompetent?

In other words, who is keeping score?

You can read the sports pages every day to find out if Delgado is earning his millions for the Blue Jays. How many home runs did he hit? What’s his batting average? Is he making a lot of errors over there at first base?

Why don’t we have the same thing for doctors? It doesn’t have to be ridiculously detailed. Just a simple table of visits, total number of operations, drugs prescribed, x-rays, cures, improvements, and… deaths.

There were signs of trouble with Dr. Shipman back in 1976 when he was convicted of stealing drugs and issuing fake prescriptions. But he was able to pay a modest little fine and move on. This was his minor league record. Mediocre. Not expected to make the big leagues.

But he worked at it and re-established himself and went on to establish a new record: 300 murders. That’s about 287 more than Klebold and Harris at Columbine. How many Nightlines do you think they’ll devote to this story? How many Newsweek Covers?

How many people are going to throw up their hands and scream, “What’s happening to our society! We should have zero-tolerance for deaths at the hands of doctors!”