There is an assumption that anyone who breaks the law should be "punished". This is such an ingrained assumption that it is not questioned, but what might we find if we do question it? What does punishment mean? It seems to mean that if we do wrong in the eyes of the law then we will have things done to us that we do not like or want to happen. That is, we might be fined, we might be put into prison, in some societies we might be killed (although the legal term is "executed" it means the same thing). What purpose may this serve? Well, this course of action does nothing to compensate any victim(s) of our crime. It does nothing to encourage the perpetrator not to break the law in future. It costs society a good deal of money to keep a person in prison: around £25,000 per year in the UK per prisoner. Punishment may serve one legitimate purpose: to discourage others from committing similar crimes, in other words it acts as a deterrent to others. Looked at in this way, punishment might almost be seen as an unsought and unwanted way in which a criminal carries out a public service. By being punished the convicted criminal sacrifices money or freedom to prevent others from being deprived of money or freedom. Sounds ridiculous? Maybe, but it is the logical consequence of the deterrence argument.

The other arguments in favour of punishment are not legitimate. They are revenge and justice. Revenge is quite easily dismissed. Revenge is personal and subjective. It has nothing to do with justice, fairness or acting in any manner that can be regarded as civilised. It is also entirely understandable. If a close member of the family, or a close friend, is mugged, raped, conned out of life savings, murdered, then the instinct for revenge is natural and powerful. However, societies have painstakingly built a legal system that removes revenge from its workings because it is subjective. Revenge has no part to play in a legal system and indeed provides no lasting satisfaction for the revenge taker: the short term gain is soon lost. It is a negative action which has negative effects on all those involved.

The argument in dismissing justice, in terms of justifying punishment, is more subtle. What is just or fair in making a person suffer for his or her transgressions? Is suffering ever just? Events such as earthquakes may cause suffering but I find it difficult to accept that it is ever justifiable to cause suffering to another human being, whether or not in the cause of 'justice'. To see punishment as a way of securing justice seems to turn on its head the saying 'two wrongs don't make a right'. We do indeed cause suffering, either accidentally or deliberately, to others, but I believe we do not see this in terms of justice even on those occasions when we believe that the other person in some way 'deserves' it. It feels much more like revenge or spitefulness in these circumstances.

Deterrence of others appears to be the only justification for punishment and there are other, better ways to deter others which also are fairer to both criminal and victims. These concern the principle of recompense.

Recompense means paying back. If I have caused harm to someone else then a basic principle of justice requires that I recompense the person in some way. Why should I just be able to walk away, shrugging my shoulders? It is recompense and not revenge or punishment which lies or should lie at the heart of the concept of justice and it is ironic that the most common form of 'justice' (which is actually punishment) for serious harm done to others is imprisonment, where there is little chance of any recompense being made - just in the areas where recompense is most needed. In other words, we might not be too bothered about recompense for small crimes committed against us, but we are more likely to want recompense (not revenge) for larger crimes committed against us. It is possible, as outlined below, to build a criminal justice system around the principle of recompense.

This brings us on to the subject of rehabilitation. Whether or not a criminal should be punished or provide recompense or what we define as justice and how might past and future criminals be deterred from offending, there is general agreement that rehabilitation is a 'good thing', excepting the desire for revenge for particularly heinous crimes. Yet rehabilitation cannot be addressed seriously in our overcrowded prisons. It also costs money and the public has a quaint habit of viewing things as 'good' but still not be willing to fund them. What do we mean by rehabilitation? By definition it refers to offenders and is the positive side of deterrence. If by training, learning programmes or other activities we can equip a criminal to support him or herself legally then this reduces the chances of re-offending. It also increases the skills available for society, which is also regarded as a 'good thing'. The risk is that the new skills are simply used for more criminal acts and in these cases rehabilitation programmes are counter productive for society. Nevertheless there are significant gains to be obtained from an effective rehabilitation programme.

So justice might be better served by taking punishment and revenge out of the criminal justice system and focussing upon recompense and rehabilitation. How might this be done? Well, modern technology may help to develop this in ways not possible in past centuries.

Put together tuition fees, electronic tagging, disquiet about the prison population and David Blunkett's proposals for a levy on criminals to supplement victim support schemes. From this mix comes a recipe for a fairer system of justice which could reduce the cost to the country in imprisoning people, reduce the loss in the economic contribution of prisoners through loss of work and increase the amount of money towards supporting victims of crime, that is providing recompense.

The proposal is simple in principle. For many crimes, a fine payable over a period of time with money going to victims, enforceable via electronic funds transfer and electronic tagging to reduce the chances of re-offending. If students can incur debts, payable through earnings over twenty five years, it seems reasonable to propose that criminals likewise could be asked to pay financially, not just what is considered their debt to society but to their victims over a similar period. If it is reasonable to make students aware that they have to take this debt into account before deciding to seek higher education then it seems reasonable to inform criminals similarly as they contemplate criminal acts. As for students, low or no income means no repayment, but unlike students, criminals in this category would face the alternative of prison for some offences.

Now that most wages and salaries are paid directly into bank/building society accounts the problem of debt/fine collection is much smaller. The convicted criminal who is in work has the instalments deducted automatically on a weekly or monthly basis. I notice that this principle is already being operated to some degree: Nick Leeson apparently has 50% of his salary deducted - for ever - in order to provide some recompense for the money lost through his activities. Of course this acts as a disincentive to some degree, but the choice may be a stark one: live and work in society on a reduced income or sit and rot in prison. The choice of work - to the gain of victim, society and criminal - is clearly preferable apart from the primitive desire for punishment and revenge, both wholly negative desires with negative consequences.

Electronic tagging can help to track convicted criminals to ensure that payments continue for the required period even if they move jobs/areas. The use of electronic tagging can also significantly reduce the risks involved in convicted criminals associating with each other and provide data for the police when a further crime is committed: data which can help either to eliminate specific criminals from their enquiries, thus saving police time and money, or provide corroborative evidence that the suspect was in the area at the time of the crime. The argument that tagging infringes civil liberties is weak: a criminal forfeits the right to liberty at present when found guilty, tagging is in fact a somewhat lesser reduction in liberty. Electronic tagging also provides a way of ensuring that appropriate activities in the form of community service can be provided and enforced which enable the criminal to provide services to the community rather than being locked up in prison. It is likely to be cheaper for instance to require a driver convicted of dangerous driving to assist the emergency services in dealing with road accidents - even if training is required - as this is much more likely to aid the criminal to be deterred from driving in a similar way than the sterile experience of sitting in a prison cell. The skills learned and experience gained may also be useful to society. Even if the criminal also gains, this is in the context of recompense being made, which rarely happens at present.

Some criminals - as opposed to some crimes - need to receive prison sentences. These include people who are a continuing danger to others or who persistently offend to the extent that society needs to be protected from their acts even if their acts are not in themselves dangerous. It is important to note however that the protection of society is the key reason, not punishment. Some paedophiles/rapists pose a continuing threat to children/women and need to be kept in custody. Some such criminals recognise this themselves. Crimes in general however cannot be neatly categorised into custodial and non-custodial in terms of sentencing, even though that has been the system for centuries. Even in the worst case of murder there is a world of difference between a person who deliberately kills another in a premeditated way, for gain or to avoid loss/detection; those who carelessly kill incidentally to another activity and those who kill spontaneously at a moment of intolerable pressure/provocation (e.g. 'battered wives' who flip and kill their partner). The old adage of 'let the punishment fit the crime' should be rewritten: 'let the recompense fit the criminal and the victim'. This of course flies in the face of the present Government's preoccupation with mandatory minimum sentences which take no account of individual circumstances. We should really move on beyond such simplistic and medieval thinking.

I am aware that those in the criminal justice system regard many criminals as beyond rehabilitation and that proposals like the one above to be soft on criminals but there is a curious gap in the thinking of the two major UK political parties. Both argue that high taxes act as a disincentive to people in work but do not go on to argue that a similar reduction in disposable income in terms of fines collectible from income would act as a disincentive to criminals. This betrays the faulty thinking of criminals as non-human, outcasts from society, but criminals are human and subject to the same desires and fears as everyone else. Criminals however who are, at that moment in time, beyond rehabilitation need to be treated accordingly - which may well be a lengthy prison sentence.

There are many, some conflicting, studies which purport to demonstrate the effectiveness of prison, or community service etc. in terms of re-offending. Re-offending rates are not the most important factor. I believe a criminal justice system, after the first requirement to reach accurate judgements, should be far more oriented towards criminals providing appropriate and adequate recompense towards their victims and society. We talk of 'paying his debt to society'. Is it not better that the debt is actually paid, at least in part, rather than being 'paid' by sitting in a prison cell?

March 2004