Notes on Freedom

What punishment should be given to the Chelsea fans who pushed a black man off a Paris train and chanted a racist song?

What is striking is that calls for the ‘strongest possible punishment’ are based less on a weighing of the acts committed, than as a way to show others that ‘such behaviour is abhorrent and has no place in football or society’.

In football as in other areas, criminal punishment is increasingly taking on a didactic function, as a way of ‘sending a message’ that a particular behaviour is ‘unacceptable’. It has become common to treat criminal trial and judgement as a sort of pubic press release about social mores. For example:

• Upon evicting a man from his home, police announced: ‘We hope that our actions send out a clear message that we will not tolerate any sort of behaviour that has such a negative impact on the quality of people’s lives’.
• The prosecution of men for homophobic leaflets was heralded as sending ‘out a message that Derbyshire Constabulary will not tolerate any form of hate crime’.
• The jailing of a man for an antisemitic tweet was welcomed by the communities minister: ‘This ruling sends out  a message to all those who use social media to send out antisemitic, anti-Muslim, homophobic and racist  comments that it is unacceptable’.
• Scottish police said that football banning orders are imposed to ‘send a message to those who use football as an excuse to create disorder that this anti social behaviour will not be tolerated’.

In a civilised jurisdiction, the only thing that should matter is the objective value of the harm committed, and the degree of personal responsibility for that harm.

Yet the prosecution and punishment of crime today has taken on elements of the show trial. The punishment of a criminal act is no longer seen as an exact weighing of the harm committed to person and property, and the degree of responsibility of the actor. Instead, punishments of all kinds are held to have a didactic or demonstrative value.

In these terms, the judicial process is being used to make an example out of somebody. The person being judged is therefore not being entirely respected: they become an object for the judicial process, a vehicle for the transmission of messages to others. Their body, their liberty, is used for the purposes of public communication.

This is a feature of primitive legal systems, where courts and the rule of law are not sufficiently independent and well-developed, and criminal justice is a tool for the cohering of social authority.

For example, the prosecution and punishment of treason was demonstrative, a form of communication. The performance of hanging, drawing and quartering was not intended as a measured punishment to fit the crime. There was no weighing involved. The king was using the tortured body of the offender as a means of sending a message to others: the offender’s body was being used to perform a didactic function.

It seems that we are well aware that Egypt’s recent mass trials were being used for an ideological purpose, and so are unjust. Yet a not dissimilar logic is being employed in our own system without a blink.

Indeed, overt miscarriages of justice become acceptable. One litter charity welcomed the prosecution of a woman for throwing a straw wrapper out of the car window, though she protested her innocence, on the grounds that it ‘got people talking about the issue’. Whether she did it or not – and if she did, whether her actions merited a £400 fine – were seen as less essential than the opportunity to make a point.

When punishment takes on a didactic function there is no gradation of harm, no increment of misdemeanour which at a certain point becomes sufficiently severe to classify as a criminal offence. Instead, there is ‘zero tolerance’: any manifestation of a particular misdemeanour, whether serious or not, will be punished equally. Therefore, there is a sort of equivalence in councils’ treatment of someone dropping an apple core and someone fly tipping, since both provide the same communication opportunity.

Several people have been fined £900 pounds for dropping a cigarette butt; in every case the council promptly press released the verdict, saying that the prosecution would ‘send a message’ about the council’s ‘zero tolerance’ approach to littering. The question of proportionality – £900 for a cigarette butt – is not entertained. For the authorities, the trial is not really about that individual but about the council’s policy for public space.

The notion of ‘zero tolerance’ was also found in legal systems of the past which punished crimes for didactic reasons. The full-on guts-ripping punishment for treason was used equally on those who merely speculated about alternative heirs to the throne, as well as for those who actually committed regicide. The slightest step in the direction of treason could not be tolerated: there was no gradation between speech and the act of murder. Similarly, the eighteenth century’s bloody criminal code punished every theft with the death penalty, equally for a bread roll as for an armed robbery. The slightest theft, however small, would not be tolerated.

At these points, a central state was attempting to impose order and ideological rules upon an unruly or out of control population; the criminal law was used as a rough tool for social integration and discipline. With the development of public institutions and the stabilisation of the state, the criminal law was no longer required to be an overt agent of socialisation and discipline: the ‘bloody code’ was reformed at the start of the nineteenth century.

In a developed and rational criminal justice system, the didactic role of punishment is fulfilled by the simple enforcement of the law. An individual is judged only for their responsibility for causing harm; they are in the dock for their actions alone, and the punishment is concerned with them. The ‘message’ sent by open and fair justice is not a separate element, laid on top of the trial, but only the trial itself.

The return to making an example of people – and using their punishment to communicate social mores – shows that our criminal justice system is again assuming barbaric and irrational elements. This suggests an underlying institutional weakness and ideological uncertainty: criminal justice is used for the purpose of socialisation when other methods fail.

Whatever its causes, the show trial tendency should be resisted in the strongest possible terms. The individual in the dock is a citizen whose acts should be carefully weighed: they are a person, not the subject for a press release.