The proposal from the Sentencing Guidelines Council that motorists who cause death by careless driving should escape jail, has prompted the inevitable protests. The resulting argument highlights our confusion about the role of punishment in our criminal justice system.
The purpose of punishment may be deterrence, containment, rehabilitation or retribution. Up till now, we seem to have had in mind a vague muddle of all of these. That might be fine, if the four objectives didn't happen to conflict.
Whether or not careless driving results in death is a matter of chance. The driver's culpability resides in the carelessness, not in its outcome. If we feel that careless driving is causing too many deaths and we therefore wish to deter it more severely, it would make most sense to increase the penalty for careless driving, not that for causing death. Drivers would then have reason to fear the consequences of any of the behaviour that might or might not cause death, rather than knowing it would merely expose them to a small risk of incurring a particularly heavy penalty. Prison seems an unlikely means of reforming the careless, nor does containing them for a relatively short while seem likely to achieve very much. In the light of these considerations, the council's thinking seems sensible enough.
It hasn't, however, gone down well with Angela Smith, whose 16-year-old son was killed in a car crash three years ago. Smith doesn't just feel that a higher degree of deterrence is required. According to the Press Association, she also says: "People who cause death on the roads should never drive again. They should have to live with what they have done for the rest of their lives." Smith, then, seems to expect a greater level of retribution for the chance consequences of inattention than the council is prepared to countenance.
The requirements of retribution, deterrence and containment may be different. They may all prove obstacles to rehabilitation. Yet those who work in our criminal justice system seem to consider rehabilitation their preferred goal. They aren't quite as keen on deterrence or containment, and find retribution distasteful. Passengers on the Clapham omnibus tend to favour the opposite priorities. Because of this, rehabilitation is often promoted as a means of protecting society, while calls for more deterrence and containment often cloak the desire for more retribution.
Judges, probation officers and suchlike figures tend to concentrate on the needs of the offender. He is, after all, what they're actually dealing with, rather than his victim or society at large. The public, however, who don't meet the offender but may have seen him demonised by the media, are more likely to be concerned about their own protection from other such offenders. Victims may be overwhelmingly concerned with securing some kind of recompense for the harm that's been done. They often encounter sympathy from outsiders, who identify more readily with them than with the offender.
As the public have come to demand more of a say in what's done in their name, those in charge of the system have been forced to pay at least more lip-service to the need for deterrence and containment. They're even beginning to acknowledge a role for the victim in the criminal justice process, a development that, unless it's mere window-dressing, can only enhance the scope for retribution.
None of this seems to be admitted. Yet we can only create a consensus on matters such as the treatment of killer motorists if we come clean about what we're trying to achieve. Deterrence, containment, rehabilitation and retribution can all be seen as legitimate goals, but we need to establish and articulate our attitude to each of them.
All of them require society to appropriate the offender's free agency or assets in the interests of others. The presumption is that those who've broken society's rules have lost a portion of their entitlements. Some people have never been comfortable with this, and as the idea of personal responsibility has wilted in the face of environmental and genetic determinism, their qualms have grown and become more widely shared.
To protect society adequately, or to provide victims with the comfort of retribution, we may need to sacrifice the interests of offenders whose culpability is limited. Are we up for that, or not? Until we're ready to answer questions like this, our system of justice will fumble.