“Let me ask you,” he says, “about the most despicable thing you’ve ever done in your life, that you’re most ashamed of, that you don’t want anyone to know. My guess is we’d agree that it’s not a criminal offence. It’s just something really nasty that you did to someone you love. Now, let’s compare the harm in that to the worst criminal offence that’s ever been done to you. Which is what?” I have a think, and all I can come up with is having been burgled. “So, how much impact did that have on you?” It was really inconvenient – but emotional impact? None.
“Zero, right. And yet if I’m right, the thing you did, that you’re actually ashamed of, inflicted a lot of harm on the person you did it to. Yet the thing we define as a ‘crime’ – for which some young black British person would get maybe four years in prison – has no impact on you at all. Why is it that we define our criminal law in terms of utter irrationality, where nasty things that you and I do have no consequences legally – and things that are really quite inconsequential, poor people end up in prison for. Why is that?”
I didn’t much mind being burgled, I agree, but lots of people do enormously. “But that’s because we’ve trained people to have these idiotic attitudes! It’s crazy.” And when it comes to genuinely devastating and heinous crimes, he goes on, our response is if anything even crazier. “Because the worse the crime, the more obvious the explanation. There’s a reason why it happened.”
Put simply, when someone does something bloodcurdlingly awful they are pretty much by definition not bad but mad.
Clive Stafford Smith in interview with Decca Aitkenhead, The Guardian, July 8th, 2012
I think he melodramatizes the love/burglary counterpoint, but on a rhetorical level it works. When I heard Stafford Smith make this same point at the Compass Change: How conference in London last year, it instantly subverted some kind of unexamined faith I had in the exercise of criminal justice. Damn, yes! It does overwhelmingly privilege property over other measures of individual and social well-being.
But then it got challenging.
Stafford Smith has for two decades been an energetic and highly effective advocate on behalf of death row inmates in the US, some (or many?) of whom he must have known or believed were guilty of vile, sadistic acts. Personally, I find it hard to stomach the idea that people who do bad, real real bad, are not to blame for what they have done. I want the bad guys to pay for it, for who they are and what they’ve done.
So, he finished speaking and someone asked from the audience: “How would you defend the killers of Lee Rigby?” The image was still fresh in mind. We’d all seen the footage of one of the two killers, blood-stained cleaver in hand and a blurry body heaped in the road behind him. He was ranting triumphantly into the lens of a bystander’s phone-cam, exulting in the name of his angry deity in the achievement of running down then hacking to death the randomly targeted off-duty soldier in broad daylight in a South London street. Stafford Smith’s answer: “I’d draw out the legal arguments for as long as possible, then…probably have them plead innocent on grounds of diminished responsibility”. In other words, by reason of insanity.
I felt a twinge of disgust. I mean, prison’s too good for the bastards, right?
But later, as the idea turned itself over in my mind, I came to think he’s probably right. In fact it’s blindingly obvious. The sickest things, no matter how cruel and hateful, are done by the sickest people. They’re not necessarily any more to blame for the bad they’ve done than those of us on the lower slopes of badness – who just happen to be less sick – are to blame for our misdeeds. It may be sound to want the killers and sadists out of society’s way, whether by incarceration or extermination, but it’s pure delusion to think that punishment is the fix.
At one point in his talk Stafford Smith described returning to give a lecture at Radley College, the posh, boys-only boarding school he had attended as a teenager. He had the senior boys give a show of hands for political affiliation: over 80% were going to be Tory voters, and as he was already aware the majority were destined for careers in finance and banking. All neatly programmed by the circumstances of their upbringing.
As he said, with a rueful chuckle: “Poor sods – they didn’t stand a chance.”