Crime and Punishment – Round 1

In one corner, Law Society President Michael Hwang, in the other, former top lawyer, now Law Minister, Shanmugam.

Michael takes the first swing by posting two pieces critiquing (not criticising) the Penal Code.

You can find it here and here

But I append the entire treatise in both parts here ( I do realise that this maybe infringing copyright – If I am, and law society says to take it down, just drop me an email)

Crime and Punishment

In my message for this month and the next, I propose to examine some basic thoughts on the purpose of our laws on crime and punishment, commencing with crime.

There are many statements of the purpose of the criminal law, but my favourite short and simple statement is from the Wolfenden Committee in England set up to review the law on Homosexual Offences and Prostitution. The function of the criminal law, as they saw it in their 1957 Report, was:

… to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable …

It is not … the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined … there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.

If we accept this as a working statement of the guide to criminalization of conduct, then the following principles flow from this:
1 It is not the function of the criminal law to shape personal conduct in the way that lawmakers would like Singaporeans to behave.

2 Acts (or omissions) should only be made criminal if they cause positive harm to:

a

other persons or beings capable of sentient feelings;

b

the actor himself;

c

the state;

d

public order; or

e

the community as a whole.

3 Harm has to be tangible and provable rather than speculative or subjective.

4 Harm to others (2a above) needs little explanation except for the second part which is meant to justify laws against cruelty to animals.

5 Harm to the actor (2b above) can be justified either by the principle of paternalism (sometimes the state knows better than the individual what is harmful to him, defining harm in terms of (3) above) or the welfare principle (it is against public policy to utilise the resources of the state to expend time and money on attending to the injuries of those who could protect themselves against such injuries with little inconvenience).

6 Harm to the state (2c above) will justify offences set out under Chapters VI and VII of the Penal Code and offences such as failure to pay taxes.

7 Harm to public order (2d above) will justify:

· (in principle) the laws against public assembly and
racially insensitive speeches, although the degree
to which it is necessary to control the activities of
public assembly and freedom of speech is debatable; and

· laws which prohibit behaviour which many not cause tangible harm to the object of the act concerned but, if not prohibited, will cause people who are so outraged by that act that they will take redress into their own hands (eg necrophilia).

This will also distinguish public decency and private morality, so that (for example) there should be:

· criminalization of sexual acts committed in public (which would be justified in the preservation of public order); but

· non-criminalization of sexual acts performed in private (other than those which cause physical harm even to consenting adults).

8 Harm to the community (2e above) distinguishes the interests of the state from the community at large and provides justification for offences such as:

· those which protect the integrity of the financial markets; and

· those which save the community from the trouble and cost of having to take action to rectify the consequences of acts which cause harm to the actor (eg taking drugs or attempted suicide), which is also justifiable under the welfare principle described under (5) above)

If we follow these principles to their logical conclusion this should lead us to re-examine why certain offences remain on the statute books and whether they should be repealed or modified.

The point of this analysis is that we should not criminalize conduct which we simply consider to be immoral unless harm also results from the conduct. We can argue about what ‘harm’ means for this purpose, but the essential principle should be: no harm, no criminal offence.

That is not to say that morality has no place in the criminal law. All criminal laws must be rooted in morality in the sense that it must have the moral support of the majority of the community, otherwise it becomes the rule of the oligarchy, who think they know what is best for us all. We cannot criminalize conduct if the majority of the people think that the conduct is not wrong enough to require state enforcement (eg adultery). But the converse argument does not follow as a matter of logic: to enforce morality for its own sake cannot be justified by legal arguments. Hence, the arguments about prohibiting the consumption of alcohol or the practice of homosexuality need to focus on the actual or potential harm caused to the persons involved, especially if they are vulnerable (by reason of age or mental incapacity) and not capable of making a fully informed decision as to whether they understand what harm they might suffer from the conduct in question.

All the above is not original thought; it is largely reproduced in the standard criminal textbooks, and I am simply reminding people who have a say in the revision of our criminal laws to take the above into account.

We need to apply intellectual rigour to our attitude to criminalization of human conduct, and should not simply argue for criminalization of conduct which offends us personally for reasons which do not fall within the objective criteria set out above.

So let us clear our minds of cant, and think logically and progress towards a more rational theory of criminal law.

In next month’s message I will deal with what I consider to be the relevant principles determining the imposition of penalties for criminal behavior.

Following on from last month’s message, I want to share my views on the purposes of punishment insofar as they should be reflected in the sentences imposed by criminal courts.

The old view (which is still maintained by many) holds that there is a necessary moral connection between wrongdoing and punishment (variously called ‘ethical or moral retribution’, ‘retributive justice’ or the ‘desert justification’). This theory is a refinement of the ‘revenge theory’ best expressed in the ‘eye for an eye’ principle.

An alternative view (which I prefer) is that offenders are punished only for social reasons, looking forward rather than to the past. This principle is best expressed pithily in the words of the Utilitarian philosopher, Jeremy Bentham, who wrote:

All punishment is mischief. All punishment is in itself evil. It ought only to be admitted in as far as it promises to exclude some greater evil.

Retributive justice looks to the past when it seeks to punish the offender for what he has done, while the utilitarian looks to the future to justify the imposition of punishment. The utilitarian justification for punishment is not to take revenge on the offender for his wrongdoing but to prevent future offences of a similar kind, whether by that offender or others. In short, the principle of deterrence should underpin a rational policy of sentencing. The sentence should be determined by its effect upon the person punished (particular deterrence) or by serving as a warning to others (general deterrence). In addition, the penal process can have a certain educational effect, both on the offender as well as the community at large in reinforcing the social values of the community as expressed through its criminal laws. However, the educational process should only be regarded as a side effect of punishment, and not as its primary justification. To that extent, I would therefore respectfully disagree with Lord Denning who once famously said:

The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.

As I pointed out in last month’s message, the purpose of the criminal law is not to enforce the moral standards of the community as such, but only to protect the community and individuals from tangible harm. Accordingly, punishment should not be based on moral denunciation as its primary justification.

But utilitarianism does not provide a self-contained justification of punishment, as there are cases where utilitarianism would provide too harsh a penalty, or where it would not justify a punishment at all where clearly punishment is necessary.

If one carried utilitarianism to its logical conclusion and make deterrence the sole criterion for punishment, there would be times where the easy way to abolish a socially undesirable practice would be to impose extremely harsh penalties, eg to impose huge fines or even imprisonment for parking offences. But the community would (rightly) reject such penalties because they would violate another principle that is commonly accepted as a necessary ingredient of a rational sentencing policy, viz. the principle of proportionality. That principle reflects the correct place where retribution ought to be reflected in punishment – in the distribution of justice, rather than in its primary justification. The extent to which an offender ought to be punished cannot be determined solely by the need to stamp out future repetitions of the same offence; there is a moral limit to the law’s power to make an offender an example for others to fear.

Conversely, there may be occasions where an offence may result in no overt harm, but may attract such moral outrage that, a failure to punish (or punish adequately) such an offence will lead to those outraged to take physical action to vent their feelings. This is the basis for laws and punishment against those that express views which give serious offence to religious or racial groups. Indeed, this was the original justification for having laws at all, because, in the absence of government having a system of law and order and punishment for violation of those laws, victims of wrongs committed against them would have to resort to self-help to gain redress for the loss and suffering they had sustained. It is to this extent that Lord Denning’s dictum can be justified, but only as a postscript to any thesis on the purposes of punishment.

On a more practical note, Singapore is sadly lacking a principled and transparent penal policy. Our universities barely cover the study of criminology, and even less the more important study of penology. Possibly, this is because Government has not published detailed statistics of crime and punishment so that social scientists can undertake adequate research on the causes of crime and the effects of current penal policies on prisoners (especially recidivists). One traditional justification for the lack of such statistics is that these are sensitive figures which could be interpreted as indicating that certain communities might be more prone to commit certain crimes, but we cannot continue to put our heads in the sand and hide important social facts which need serious study by objective scholars in order to improve our society. Only rigorous research with full access to relevant information can help us determine important penological questions such as:

· Is the death penalty effective in preventing murder and other capital crimes?

· Do strict liability offences achieve their object of deterring anti-social behaviour?

· What kind of punishments best deter what kind of behaviour?

· Should we follow the UK in adopting indeterminate sentences?

· Is corporal punishment an effective deterrent against the crimes for which it is imposed as a penalty?

So I end with the message that we need to re-think our policies on crime and punishment at a more fundamental level than hitherto so as to base our laws and sentences on a proper jurisprudential as well as practical basis.

Michael Hwang, SC
President
The Law Society of Singapore

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About onedimensionalman

An average 20 something year-old living in Singapore and despairing over the state of my home, where economics, not politics, is top dog. It is, in fact, ultra-capitalist corporation masquerading as a nation where citizens have limited rights and much responsibility. While I support being accountable for one's speech, I prefer to remain anonymous for now. The work that I do makes it very difficult for me to reveal my name. Hopefully this project will continue for years to come, until I have finally changed my job.

Posted on January 19, 2009, in Uncategorized. Bookmark the permalink. 1 Comment.

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