29 June 2010

Fiat iustitia, et pereat mundus!

Fiat iustitia, et pereat mundus! Cry the Tories. Fiat justitia ruat caelum! Call the Labour benches. More prison! More cells! More money for jails! Uplifting melodies, are they not? Sweet songs for these days where the public purse is plundered and pinched. Tomorrow, Holyrood will embarking on its Stage 3 debate on the provisions of the Criminal Justice and Licensing (Scotland) Bill.  Last week, we heard tell that Kenny MacAskill has decided to round-down his proposal for a presumption against minimum jail terms, from the more radical 6 month SNP plan to the 3 months that should be more agreeable to the Liberal Democrats. Showing their progressive credentials, this has induced in the Scottish Labour and Tories bouts of "righteous" apoplexy. 

I lament the loss. Although it prompted minimal press coverage in these terms, the six-month proposal really was one of the more radically progressive policies advanced by this SNP administration in criminal justice. Given how easily it is to generate lines of rhetorical attack on the position - "soft touch Scotland" et al. - it really was a brave position to prosecute the case, into the hail of easy and decidedly cheap shots the Swine Pursuivant and associated rump-scratchers, Tory and Labour, could find to fling at the SNP for it.  These slings and arrows, I fancy, have not been without their negative consequences. In particular, as I've suggested before, in other areas I think the assaults have prompted SNP politicians to try to find other ways to don the Inquisitor's hood and boast about what sterling punishers, bruisers and thumpers they can be. That said, three months is more satisfactory than no presumption at all - and a strategy of soft degrees may well work out in the end. If such a provision is already on the statute book, revising the presumption upwards is undoubtedly an easier prospect in the middle term than forming up the troops for a fresh new sally, from scratch. 

We should be candid about one point, however. Presumptions are odd legal beasties. Quite how it will work and change sentencing practice remains to be seen. This observation extends, in all fairness, to Labour and Tory arguments that there should be a presumption in favour of six month to two year sentences for knife carrying in Scotland. Both presumptions leave shrieval bolt-hole - the facts and circumstances of a particular case - justifying imposing a prison sentence of two months, or not imposing a six month sentence on some wight, caught with a shank in his underpants. Strictly speaking, the Swine Pursuivant's Labour motto shouldn't be carry a knife, go to jail - but carry a knife, probably go to jail (unless the Sheriff decides otherwise). Equally, there is plenty of scope for the Scottish judiciary to distort the goals associated with a presumption against three month sentences. Either way, its a brave soul who tries their hand at absolute prophecy. We have to do our best with the material available to us, and cross our fingers that everything works out as we hope - or not too significantly and appallingly differently.
On the opposition, I can’t make up my mind which alternative is the more scabrous. First, consider our rigidly righteous little Kantling. Call him Baillie Bill Aitken – a hypothetical figure of course. In this character’s case, I can imagine that he doesn’t give a flying flip about consequences. Although the earth’s crust break, the blue sky slump above him, stars put out their fires, whether jail serves no deterring function, whether sending people to jail actually serves to create more victims, whatever the state of the public finances – in his world of little judgement, we should probably bang ‘em up anyway. Damn the consequences, though the sky fall and the world perish.   For him, it seems to matter not a jot that short term sentences do not prevent recidivism. If he was frank, he probably doesn't believe that is what prison is for. This is a dangerous inclination and I believe fundamentally an incorrect one. However, it does at least have the benefit of a sort of piggish sincerity. A bastard's programme, but a bad programme pursued in good faith. Then there is the second category, best I can discern. It seems unlikely that this character - call him Iain Gray - shares wholeheartedly in the punitive inclinations of Baillie Bill. Rather, a whiff of stratagem clings to his shrill opposition. One wonders whether he believes the whole thing or not - or merely has his pigling blands churn out quotes suggesting that “the SNP is still playing Russian roulette with public safety” because he is trying to squirrel away some party advantage from the friction. In his heart of hearts, heaven knows what he or his ruddy cronies think about prison, about the evidence that it does not serve a function, that increasingly we cannot afford it, that the numbers incarcerated are high and are mounting even higher.  Do they care about these issues? Are they interested? Are they willing to align themselves with the bottomless retributivism of Baillie Bill, pious punishers who have little interest in what is happening in the here and now - and how our politics and our decisions beget these issues?

As is so often the case with the Labour Party, one cannot even seem have a discussion about these matters.  Like grinning gin-traps, Labour in  opposition snaps shut, ever-eager to draw blood and once closed, their jaws are not readily pried apart again. On an individual level,  I know many Labour members who have open minds on such matters, but who keep their peace in the public sphere and keep supporting their gormless tribunes with a touching but destructive loyalty. This tendency is mightily depressing, since it impoverishes our public life, makes conversations meaningless, reduces Holyrood to a howling-room, manipulative, eyes ever on the polls, lies and fictions and distortions its tools. It is lazy and cynical in the least charming fashion imaginable. For shame.

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