This week we’re talking about punishment and individual circumstances: could it be fair if two people, convicted of the same crime, get different sentences?
Getting convicted of a crime can have lots of further, harmful consequences, perhaps you’ll lose your home or job. Yet those consequences don’t fall equally: some might go back to something like their previous lives after imprisonment, where others can’t. And often that has to do with wider social injustices. So, is that unfair? Ought the state make punishment more proportionate?
Today’s guest is Dr Helen Brown Coverdale, Lecturer in Political Theory at UCL Political Science. Helen's research explores these issues, arguing that we should reform punishment to mitigate some of these harms.
Mentioned in this episode:
Emily McTernan: [00:00:00] Hello, this is UCL Uncovering Politics, and this week we're talking about punishment and individual circumstances. Could it be fair for two people convicted of the same crime to get different sentences?
Hello, my name is Emily McTernan, and welcome to UCL Uncovering Politics, the podcast of the School of Public Policy and Department of Political Science at University College London.
Suppose that you commit a crime and get caught and punished. The judge or magistrate will follow sentencing guidelines for your particular kind of crime, considering any aggravating circumstances that might make the crime more serious, and so increase your sentence, or any mitigating circumstances that might reduce it.
But the wider impact of the sentence will vary. Getting convicted of a crime can come with lots of further harmful consequences. Perhaps you'll lose your home or job, yet those consequences don't fall equally. [00:01:00] Some might go back to something like their previous lives after imprisonment, where others can't. And often that has to do with wider social injustices. So, is that unfair? And should the state try to make punishments more proportionate?
Today's guest explores these issues, arguing that we should reform punishment to mitigate some of these harms. So I'm delighted to be joined this week by Dr. Helen Brown Coverdale, Lecturer in Political Theory in the Department of Political Science.
You may remember her, and frequent listeners may remember her from previous episodes of this podcast. So welcome, Helen, to Uncovering Politics. It's great to have you on the show today.
Helen Coverdale: Hi, Emily. Thanks for having me back. It's great to be here.
Emily McTernan: So let's start with a discussion about sentencing. So how do sentences get decided? And how do we determine the sort of severity of the punishment?
Helen Coverdale: Okay, so I'm going to talk mostly about England and Wales because that's the jurisdiction I'm most familiar with. Um, in this jurisdiction, the magistrate [00:02:00] or the judge in a crown court has a set of sentencing guidelines that they apply and exactly as you say, they will look at the type of case that's before them, and look at the type of crime that's been, uh, the person is accused of, and look at the aggravating and mitigating information around that, the circumstances of how the offence was committed, to figure out roughly how wrong this crime was. And then try and figure out, using the guidelines which tell them what different types of punishment they're allowed to choose from, um, which ones of those should be for a more serious type of this kind of case, or for a less serious type of this kind of case.
Emily McTernan: So the usual way we might think about what makes for the right punishment for a crime or what fits the crime and from the description you've just given us sounds like it's about the nature of the crime and the effects of the crime. But you think that's not all we should think about when we're thinking about giving people like punishments for like crimes.
So what are we missing?
Helen Coverdale: Yeah, okay, so proportionality is a really important cornerstone of fairness in criminal punishment. So this [00:03:00] is the idea that we want punishments to fit the crime in some way. We want to make sure that people who commit more serious crimes get more serious punishments than people who commit less serious crimes.
So we think that people who shoplift socks should not be punished as much as people who rob banks, for example. Um, and we think also that people who've committed the same sort of crime should get the same kinds of punishments. So, um, someone who's shoplifted socks and they've taken ten pairs of socks should get the same kind of punishment as somebody else who's taken ten pairs of socks.
Um, so these are two slightly different principles of proportionality that pull in slightly different ways. Um, and this is related to the principle of, um, equivalence in punishments or penal equivalence. So we think here that some types of punishment are more serious than other types of punishment. So if you get a small fine, that's probably not as bad as having to do a bunch of unpaid work as part of a community punishment.
Um, and we also think that's probably not as bad as going to prison and being deprived of your liberty. So you can't decide [00:04:00] where you want to go and when because you have to be inside the prison. Um, and so both of these principles, proportionality and penal equivalence suggest that there are these kind of ranked lists of less serious offences to more serious offences and less bad types of punishment and worse types of punishment.
We can try and set these lists up, but they are more complicated than we might at first think. So when we think about what kinds of offences are worse than other kinds of offences, we might say, well, if you've got an offence against a person, that might be worse than an offence against property.
So if someone's been violently assaulted, we might think that's worse than having something stolen. Um, we might also think there is a difference between, um, immediate harms, things that are just happening now, and things that are distant in time. So, um, maybe there is going to be a bad outcome in the future.
Emily McTernan: So, we've got these two, these kind of number of ways in which crimes can have [00:05:00] different impacts that we're going to want to feed into sentencing. So, the bigger crimes or their worst kinds of crimes.
Helen Coverdale: Yeah.
Emily McTernan: And so we're already doing that, but there's something we're not doing that your paper is very interested in.
Helen Coverdale: Yeah, so I'm interested in what happens when that standardised sentence coming from those standard guidelines. Yeah. Sentencer is looking at, um, intersects with the person's life when, when they're being punished. Sometimes nothing much will happen, sometimes wildly freak occurrences will happen that we couldn't possibly have predicted, but sometimes you get cases where someone's, some, little fact about their life suggests there's going to be a really high risk of a really seriously bad outcome for them.
That is a collateral consequence of their punishment. That is, it's not intended by the sentencing courts. Nobody means for this to happen. It kind of happens by accident, even though it seems that it's not intended as punishment the relevant way. Um, and, uh, I think that we need to take better account of the uniqueness of the people who are being punished, just as we do [00:06:00] of the uniqueness of offences already.
So as we've talked about, um, the sentencer will be looking at exactly what kind of, uh, type of offence was this and exactly what was this unique offence like. And I think we also need to think about how is this punishment going to be experienced by the person who's being punished.
Emily McTernan: So can we talk about some kind of particular cases in your paper. You give us a couple, I think. So there's the claustrophobic person in the tiny cell, that's one of your cases, and the other is a case of housing. Could you talk us through those two examples so we can hear a bit more about the collateral consequences you have in mind of these punishments?
Helen Coverdale: Sure, so the uh, the example of the claustrophobic prisoner in a, in a tiny little prison cell is actually one from the literature.
Um, and this is one I don't think is, isn't quite the case I'm trying to drive at, because yes, this person is going to experience psychological harms by being put in a very small cell. Um, and, uh, we can probably change that and reduce that additional burden for them by, um, putting them in a bigger [00:07:00] prison cell.
And I don't think that we're going to have any worries at all there about proportionality concerns. Is this person being punished differently and not having as much punishment? Um, well, probably not. They're still in a prison cell. Um, and, uh, that's not quite what I'm driving at. The example I use is, uh, one from my experience working in, uh, the criminal justice voluntary sector with, uh, providing resettlement advice to people coming out of prisons.
And if you are sentenced, uh, to six months or longer in prison, uh, in England and Wales, the likelihood is if you happen to be a housing benefit claimant, you're going to become, uh, ineligible for housing benefit from the moment you are sentenced. Um, so, the example I have is two people commit the same offence, and they're both given a six month prison sentence, but it so happens that one of them is a housing benefit claimant, and the other person isn't.
Only the person who's the housing benefit claimant, is at risk of losing their benefit entitlement as part of their punishment, or rather they will lose their benefit entitlement as part of their punishment [00:08:00] if they are sentenced to six months. This is just due to the way that housing benefit rules are administered in the UK.
So anybody who claims housing benefit can be away 13 weeks for any reason at all. You might be on holiday, for example, and if you can expect to return home within 13 weeks. Then you can keep your claim. Once it's more than 13 weeks, and given that most prisoners would be released at the halfway point for a short sentence, so if you're sentenced to six months or less, or six months or more rather, that's where you lose your benefit claim.
There are different rules that apply to people who are in prison on remand, so they haven't been sentenced yet. Um, but these are the rules that apply to sentenced prisoners. And it's not because, um, there is any kind of policy that says, as part of your punishment, we're going to take away your benefits.
There's not any kind of, um, benefit policy that says, we're not going to allow, uh, people with certain types of convictions or certain types of punishments to receive these types of benefits. That [00:09:00] kind of thing might happen in other jurisdictions. It doesn't happen here. Um, it just happens to be the case that here is this rule when you're entitled to housing benefit, when you're not.
And it so happens that, um, people who are sentenced to six months or more, uh, would, would lose their claim. Um, and that might not be a problem in itself, but if you are in prison, one thing you can't do is make provision for all of the belongings you have in your house, like your bank details or your passport or your family photographs.
Um, and if you are a benefit claimant, it's highly unlikely that you're suddenly going to be able to pay a full rent all by yourself, especially if you're not earning any money because you're being held in a prison. So it's not impossible, uh, it's, nobody does anything wrong if the landlord of that property decides that they're going to terminate your contract for, um, non payment of rent, um, and then clears the property for reletting.
So basically throws away all of your stuff. Um, and this might mean that you are released from prison homeless and destitute. [00:10:00] Um, and nobody intends for that to happen. This is a collateral consequence, um, of the imprisonment. Um, and It seems in some ways to dwarf the actual punishment that person's been given.
If they've only been sentenced to six months in prison, that's quite a short prison sentence. Um, yeah, that's that seems small in comparison to suddenly coming out and finding that you don't have any stuff anymore. And you don't have anywhere to live.
Emily McTernan: So just, just a quick clarification question.
Presumably, it's not just going to be people on housing benefit who experiences so anyone who's paying their rent or mortgage out of a job is going to face very similar consequences. They could well do, yes. If after six months you're not going to have a job, you're not going to probably not going to be able to pay your rent or mortgage out of no money.
Helen Coverdale: Yes.
Emily McTernan: So it seems like it's quite a general problem. Is that fair? Or did you think it's particularly
Helen Coverdale: This is the particular case I'm interested in in this particular paper because of the way, the punishment is intersecting with these particular, circumstances of a person's life. I would [00:11:00] guess that if you are a person who has a mortgage, you've probably got some form of insurance against what happens if I no longer have an income, um, which might be able to help, um, if you are a not a benefit, uh, claim already, you may possibly have savings that you could draw on, or family members who might be able to help, um, but if you're already part of a household that is claiming housing benefits, it's likely that you don't have any of those avenues to fall back on. Like, maybe you might win the lottery, maybe you might discover that you have a long lost, um, benevolent great aunt who has left you an inheritance, but this is a wildly unlikely scenario. The likely one seems to be that you're going to have problems.
Emily McTernan: So we've got these cases where there's some people experience massive collateral consequences that seem to dwarf the sentence and others don't. So what should we do? What should the judge or the magistrate or the law do to take that into account?
Do you think?
Helen Coverdale: Okay. So, I think we need to spend a little bit more time paying more attention to the person who's being punished so that we can, um, consider the punishment in exactly the same sort of context as we do the offence. We [00:12:00] spend quite a lot of time thinking about the uniqueness of the offence.
We need to think about how the uniqueness of this punishment is going to be experienced. What I am suggesting is that in some cases it might be possible for the sentence to say instead of giving you this standardised sentence option, I'm going to sentence you something slightly different, but still providing the same amount of punishment.
And that's, that's a really difficult thing to measure. So maybe you want to talk more about that?
Emily McTernan: Yeah, let's pause there. So to take us back to this case, okay, so we've got this case, there's two people come up for the same crime, let's say, um, and it's something that has a prison sentence of over six months.
So presumably it's a reasonably serious crime if you're going to go away for six months plus. And one of them has a mortgage and one of them is on housing benefit. Is your claim that only the one on housing benefit shouldn't get sent to jail or should have their sentence halved or something? What's the kind of taking into account we have in mind here?
Helen Coverdale: Okay, so, um, what I think might happen in that kind of [00:13:00] case is that there might be good grounds for suggesting suspending the prison sentence of the person who is housing benefit dependent. Prison sentences are only given when the court has decided that the only way that this crime can be properly recognized and properly addressed is with a custodial sentence.
So there's a, the custody threshold has to be met. We have to make sure that this crime is wrong enough that only a prison sentence will do. After the court has decided that, they're then asked to decide whether or not there is a reason to suspend that prison sentence. Um, some of those reasons might be, um, for example, harm to dependent others on that, on that person.
So for example, their children. And, I think maybe there is a case for, suggesting suspending a prison sentence there. Um, in England and Wales, slightly unusually, one of the options that are open to the court is to apply some of the, uh, elements that you might also find in a community punishment.
So you can also, the censor could also decide to order things like [00:14:00] probation supervision or mental health support, um, or, uh, some kind of, uh, rehabilitative support for substance misuse issues, something like that, which might go along with that suspended sentence period. Interestingly, when a person is applying for work and declaring, if they're asked about their criminal record and they're declaring whether they have a criminal record or not, a prison sentence that a person has actually served in a prison and a suspended prison sentence need to be declared in exactly the same way.
Because, as I say, the court has already decided this is the appropriate sentence for this particular crime. This reflects the seriousness of the crime. But there is a reason, a further reason to suspend. So I wonder if there might be good grounds to suspend in some cases, in the example I give in the paper. Just because it might help to avoid these other potential collateral consequences.
Emily McTernan: Great. I guess I have a couple of questions about the scope of this before we move to some [00:15:00] questions about whether it can be justified. So I guess one question would be something like, is your vision that the individual circumstances of the prisoner or the potential prisoner always matter?
Or is it only when they're, what you might call, sort of symptoms of a broader injustice? So what I have in mind here is, you know, we've already talked about the person with a mortgage and you say, oh well maybe they'll be able to cover it from savings or so on and so forth. Is your vision that if it turns out someone with a mortgage who is not on housing benefit and is not, very badly off, but just happens not to have savings. Maybe they've just bought the house or something.
Helen Coverdale: Yeah.
Emily McTernan: Is your vision that they would be treated in the same way as the person on housing benefit because the risk of losing one's home, is egregiously too much for the crime committed or is it something about the injustice that we're assuming is something that experience is experienced by the housing benefit person that's doing the real work here.
Helen Coverdale: Okay. Thank you. So, um, I'm interested in the case I raise in the paper about housing benefit because this is a [00:16:00] structural, um, injustice, I think, so it just happens to be the structure of housing benefit that has this bad outcome, uh, for this person.
Emily McTernan: I guess we could say it's a structure of mortgages that has a bad outcome, right?
If it were the case that we bought our houses outright and didn't owe lots of money to the bank, then the problem would be solved by that too.
Helen Coverdale: So I, I think that, um, we could definitely make a case for extending this further, but the case I have thought about is this, this one in relation to this housing benefit case.
Um, so, so yes, I, I do think this could be a much more broad reaching than just the small case I've talked about. So, um, it might be the case that a person might have, um, family who could help them and their family might wash their hands of them and say we refuse to give you any help in which case we might still need to turn around say, actually, there is a really deleterious consequence happening over here for this person.
And we need to think about that more. Um, at the moment, we don't tend to recognize the consequences of punishment in this way at all. Um, and I'm more interested in in the risks that we can [00:17:00] see that are clear at the moment of sentencing rather than the ones that materialize a little bit further down the road just because I haven't got as far as thinking about those yet.
So I'm trying to put myself in the shoes of the sentence and say what risks can we foresee now and can we do something to try and address that. Um, one of the things we do do because we do recognize this kind of information is important, is that we do have pre sentence reports. So, a probation officer will, uh, work with the person who's being sentenced and provide a report to the sentencer to try and give them some background about that person, which feeds into the exactly how bad was this offense, calculation.
And, um, that information might be the kind of information the sentencer needs to know whether or not a prison sentence is needed. Right? Uh, is this the only way in which we can show proper censure for this kind of offense? Um, but it might not necessarily contain enough personal information to explain what those kinds of, possible risks to this person could be, from having the standardized sentence [00:18:00] intersect with their, their everyday lives.
There's an increasing trend in England and Wales for these reports to be, given orally rather than in writing, to be prepared in 30 minutes and to be increasingly focused on a sort of standardised risk assessment, what's this person's risk of re offending, um, rather than, is something really bad going to happen to this person, and I'm interested in that because states have responsibilities about how they should treat citizens, um, and we want to make sure that, uh, we are treating citizens with equal concern and respect.
And if it seems to be the case that we have this really big risk of something really bad going wrong for this particular person, and we don't seem to care, that doesn't seem to be treating everybody with equal concern and respect.
Emily McTernan: So equal concern and respect is going to mean treating them quite unequally and what, what happens to them.
I wonder if, um, another scope question that some people might be wondering about is while we might think that with these short sentences it obviously looks really unfair if they have such a devastating effect on someone's life as to render them [00:19:00] homeless and destitute, I wonder if you think the same kind of reasoning applies for more serious cases.
So, um, I suppose that if someone you love was murdered, you wouldn't care very much about whether the consequences of an appropriately long prison sentence is. Having all these collateral effects, which they will have, right? You go to prison for murder. I assume there's not many careers open to you.
You're going to have years of your life behind bars. No one can sustain a housing arrangement unless they're uber wealthy for that number of years. But presumably the majority of us would say, who cares? So, is the collateral stuff only going to kick in for these crimes where we think, well, they're serious enough for prison to be on the table, but they're not so serious that really it seems almost offensive to consider the poor murderer, in a way that perhaps it doesn't seem offensive to consider the poor thief or something.
Helen Coverdale: So, the person who has committed a murder is likely to be sentenced to a long period of time in prison, and they're also likely to be subject to life [00:20:00] license. So when they are released from prison, they'll still be supervised in the community. And if they do anything remotely wrong ever again, they can be sent straight back to prison.
It might not necessarily be the, in the case of sort of thinking about housing, it might not necessarily just be the poor murderer that we're thinking about. We might also be thinking about their family, right? So if this person happens to be a benefit claimant, is part of a family unit with a partner and children as well.
And we might also be concerned about the security for the family on the outside. Um, but the point I'm starting from is that when the state is punishing someone, whatever else it does, it probably shouldn't make the bad situation of the already vulnerable worse than it needs to be. And I'm not saying that punishment doesn't have an effect that is, harmful or detracting.
Emily McTernan: Because it has to. It has to have some harm. If it's a punishment, that is a kind of harm, right?
Helen Coverdale: Yeah, so we expect that punishment is going to be some kind of harm or loss or [00:21:00] burden or unpleasantness, something like that. Suffering. And, it's one thing to say, this is a justified amount of punishment for this particular person, given the crime they've committed.
I'm concerned about the collateral consequences that might happen on top of that, that are not intended by the court. Um, and there are disadvantages, um, that are not expected and that are over and above that. And so that seems to be disproportionate, when we're looking at these other consequences. Now we can say that's not a relevantly intended part of the punishment, therefore it doesn't count as disproportionate.
That's a weird thing to say to the person who's experiencing the punishment, right? So if you fine someone, but you also give them a set of court costs and you say, oh, this part of your fine isn't a fine. It's not a punishment. It's just associated administrative costs. The person still has to pay the same total bill. So it might be confusing to explain that to them. Um, certainly there are examples of, restorative justice, which is not intended generally to be punitive at all, [00:22:00] being experienced as burdensome and onerous in exactly the same way we think punishments are supposed to be.
So what we intend and what comes out isn't always the same. But the state is responsible for the outcomes of its policy choices, whether it intends them or not.
Emily McTernan: So since you're so focused on the particular case of housing, and it's such a nice case, I can see why. I wonder why you think it's the punishment that has to change and not the policy of housing benefit.
So someone listening might think, well, what you've done is pointed out a really nice problem that we need to fix.
Helen Coverdale: Yeah.
Emily McTernan: You've really found that problem in housing benefit. Which is something to do with short sentences and how we deal with that or what happens if there's a household and then one of the members of the household goes and how do we deal with people's secure housing?
Is there a particular reason that we should do it within the punishment system? Rather than saying well actually what you've written is a reason to deal with housing benefit properly.
Helen Coverdale: That's great. So I think either solution is fantastic. Another way in which we could deal with this is to reform the criminal justice [00:23:00] system and have a different way of punishing people.
I'm interested in starting from where we are right now and what the criminal justice system can do. And it can do some things that would make, the outcomes and the chances of having an ordinary law abiding life more likely for people with convictions that it's not doing. Um, and if it was able to take better, uh, account of the risks that some people might face of things going disastrously wrong in their lives, which is going to make it harder for them to live that, law abiding life in the future, it seems strange to pile on pressures that increase the social causes of crime, rather than try to address those and help that person to stay on the straight and narrow.
In my experience of talking to people with criminal records, most people want to live an ordinary law abiding life, it's just that it's really hard, especially when you've got the stigma of a criminal record attached to that.
Emily McTernan: And what would you say to people who think all of this sounds very unfair? I guess in some sense you're directly [00:24:00] violating proportionality, right?
Insofar as we understand it narrowly, it's just like crimes, like punishment, you're suggesting that if I, if one happens to be disadvantaged when one goes in, one gets a softer punishment. And some people might think that's really difficult to take.
Helen Coverdale: That's not quite what I'm suggesting. So I'm suggesting that in some cases there will be a punishment that is roughly equivalent enough that we can swap from one to the other, possibly by varying something about how that punishment is delivered, um, so that you're still providing the same approximately proportionate amount of punishment, and, without that being a lesser punishment. It's different but not lesser.
Emily McTernan: So, so your thought is a suspended sentence of Six months, um, could be made by some combination of community service as onerous as being locked away for six months. That seems hard, right?
Helen Coverdale: It does. But that is how the law seems to regard it at the moment. And we expect that people who serve, a service sentence and people have a suspended sentence disclose their conviction [00:25:00] in the same way they're given this, uh, custodial punishment.
Because the court decides that's what's required, uh, for their particular offense. Um, and the court is doing their best to respond to the uniqueness of that particular crime that they're being punished for.
Emily McTernan: Great. Let's talk a little bit about prison. So one of the interesting things about your paper and your work in general is the extent to which you put pressure on the idea that prison's such a good idea, or that prison is the way to go.
Do you want to talk a little bit about that for our listeners?
Helen Coverdale: Um, sure, I can try. Um, so when we think about punishments, the first thing that pops into your head, um, if you're an ordinary member of the public or a politician or indeed an academic penal philosopher, likelihood is the first thing you're going to think about is prison.
Um, and this is actually a really small, amount of the types of punishment that happen in our communities. So the most common criminal disposal in England and Wales is a fine. You're much more likely to be fined than sent to prison. Um, in the U. S. it's a probation sentence. So actually being sent to prison is [00:26:00] kind of the unusual small part of the, types of punishment we use.
Um, and it does come with a lot of difficulties that, um, might frustrate the attempts of a person with a criminal past to live a normal law abiding life. So if we think about how it is that some people with convictions come to desist from offending and to lead a law abiding life, there's a good argument, this is a decision which is led by the individual themselves, and it's a cyclical process which is subject to relapse, which is kind of moving away from harmful behaviours to less harmful behaviours, but they're much more likely to succeed if they have the support of their families and their communities, and if they have a stable home and a stable job, right?
So we know these things help people to live better lives. But that also requires something in return from the community. They have to recognise that this person is changing, trying to change their life and trying to make good and give things back to [00:27:00] society. If the person is still the person who the police come around and knock on their door every time something goes missing, um, just to check if they've seen it, then this seems to be that the community isn't doing that, that recognizing of someone's trying to change their life.
Um, but, uh, this kind of rebuilding your own personal identity is a, is a difficult process which is led by the person with a conviction. Um, and if we want to help people to do those kinds of things, um, to be in a position where they are able to get support and also give support to other people, separating them from the community in a prison might actually frustrate someone's ability to do that.
Emily McTernan: Fantastic. Thank you so much, Helen, for discussing with us how we might want to start changing sentencing and some reasons to be skeptical of the value of prison, or at least the overuse of prison, given the lack of possibility for people to change. So we've been discussing a recent publication by Helen Brown Coverdale, Putting Proportional Punishment into Perspective, published in Criminal [00:28:00] Law and Philosophy.
Full details, as ever, are in the show notes for this episode.
Next week, we will be talking about elections with Jeremy Bowles. As ever, to make sure you don't miss out on future episodes of UCL Uncovering Politics, all you need to do is subscribe. You can do so on Apple, Google Podcasts, or whatever podcast provider you use.
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