THE MANY RS OF CRIMINAL JUSTICE

Part 1 of this paper first appeared in the Autumn issue of the 'Skeptical Intelligencer', 2021 pp 2-3. Part 2 appeared in the Winter issue, pp 12-14.

PART 1

Controversial decisions made by the England & Wales Parole Board frequently make headline news. Recently, Colin Pitchfork, who raped and murdered two schoolgirls in the 1980s, has now been released under licence, despite the considerable distress experienced by the families of his victims and a call by the Government for the Parole Board to reconsider its decision (note 1). Pitchfork, who in 2009 had a sculpture on display in the Royal Festival Hall until it was removed following a public outcry, is reported to show no sign of remorse for his crimes, and in fact has been described by some professionals as 'a remorseless psychopath'. However, a spokesman for the Parole Board said that it was 'bound by law to assess whether a prisoner is safe to release. It has no power to alter the original sentence set down by the courts. Legislation dictates that a panel's decision must be solely focused on what risk a prisoner may pose on release and whether that risk can be managed in the community. It is the opinion of the Parole Board that Pitchfork no longer presents a risk to the community'.

Also at the time of writing, it has been revealed that Stuart Campbell, jailed for life in 2002 for the murder of his young niece, will be eligible for parole later this year. The distress and outrage of family members and the public generally (Campbell's brother has actually written a book about him revealing the history of his violent nature) is compounded by the fact that Campbell continues to deny murdering his niece; he has never revealed the location of her body and shows no remorse. Will the Parole Board take account of these matters in its deliberations or will they adhere strictly to their brief as summarised above? They may well opt for the latter, in spite of 'Helen's Law', passed this year, which makes it more difficult for murderers to be released if they refuse to disclose the whereabouts of their victim's body.

In the years when I worked in a secure hospital, once in a while, like other members of staff, I would contribute a talk to the hospital's academic and training programme. One of the topics I chose to discuss was remorse. I remember announcing this to a colleague, a forensic psychologist whom I respected, and he immediately expressed surprise by saying, 'But Mike, I thought the research evidence shows that remorse is unrelated to risk of reoffending'. I wasn't too taken aback by this, because assessing risk of violent and sexual reoffending (or recidivism) is among the most important tasks of forensic psychologists and other professionals, particularly those working in prisons. It helps no one, least of all our politicians and the Parole Board itself, when a convicted criminal on license commits a serious violent offence.

As well as 'idiographic' considerations, such as the prisoner's general behaviour and demeanour, standard risk assessment procedures have been developed and refined that rate the offender on a host of actuarial, dynamic, and clinical factors know to correlate with reoffending. Expression of remorse is not commonly cited amongst these, one possible reason being that remorse can easily be faked. Consequently (perhaps), remorsefulness doesn't come as high as it might on the agenda of the offender rehabilitation process. Yet, think how deeply hurtful it is to victims of crimes when the perpetrator 'shows no evidence of remorse', either when their guilt is announced in court or while they are serving their sentence , and especially when they are due for release or are released. Is this not a relevant consideration? Don't the victims' feelings matter? And who decides on the priorities?

Returning to my presentation on remorse, I offered to give this because I was aware of how rare it was for the patients at the secure hospital to display any spontaneous feelings of remorse for the-often terrible-suffering they had caused other people, and I wanted to understand why. I thought it was very unfortunate, but maybe in the case of patients, their serious mental illnesses prevent them, in the main, from experiencing empathy towards their victims.

Even so, I found the same with many defendants and convicted persons on whom I undertook pre-trial or pre-sentence assessments. I often asked offenders if they were sorry for what they had done; many said they were, but what they appeared to be expressing was regret (e.g. 'I wouldn't be in here now if I hadn't done what I did'). Remorse, in the sense that I use the term, is an empathic emotion that we experience solely because of the suffering we have brought on others. Some offenders expressed remorse because of the trouble they had caused their families, but seldom did I witness obvious signs of distress arising from their awareness of the their victims' suffering. Perhaps this is something they avoided thinking about, and once they were serving their sentence some would begin to experience remorse. Certainly, true remorsefulness is by no means unknown amongst serving criminals.

My motivation for presenting my talk was to make the point that it is a good thing in itself for any offender to experience emotional pain through their having committed their offence, regardless of whether or not this is predictive of reduced likelihood of re-offending. I believe this to be a natural human sentiment and one I share with most people. Regret, guilt and shame (note 2) are better than nothing at all, but they do not quite guarantee remorse itself.

I once explained to a newly qualified clinical psychologist that it is a bad thing for there to be great disparity between, on the one hand, how the Criminal Justice System deals with suspected and convicted criminals and, on the other, what the public believe and expect should be done. She disagreed, saying that the public's knowledge of such matters is limited to what they read in the Sun newspaper. Oh dear! The Criminal Justice System belongs to the people, all of whom, including offenders themselves, are victims of crime or potential victims; how those who work in the system dispense justice on our behalf concerns all of us (note 3). It has to be seen to be fair, which means a significant degree of recompense for the victim and this includes retribution; if not, people may feel justified in taking matters into their own hands, the avoidance of which is one of the reasons for making the dispensing of justice a state responsibility. I think the same goes for remorse; that is, experiencing the pain of remorse (and, if not, then regret and shame) is a good thing period. Even if it proves to be only a minor deterrence against reoffending, it is still to be pursued as an end in itself and not simply a means to an end. It may ease the pain of those victims of crime who have come to feel that the world is a cruel and unfair place.

This sentiment may not have the influence it should have in informing policy and practice in the disposal and treatment of offenders. One development, not considered for all offences of course, that is worthy of mention is restorative justice, which recognises the perspective of the victim and his or her needs, and appears to be largely successful in this respect. But, relatively speaking, it is not well-funded, and reduction of recidivism, as usual, seems to be the central focus in measuring outcome (which tends to be positive, though not dramatically so, and variable).

Another development is providing offenders with 'victim awareness' or 'victim empathy' training, as always with the explicit aim of reducing the number of future victims. This may be undertaken in the community or in a custodial setting, e.g. prison or young offender institution, and comes under the domain of rehabilitation. I believe that the public expects that attempts will be made to improve the mind-set of offenders in this way, and various courses of 'treatment', often in groups, are administrated by staff both in prisons and in the community. As with many interventions of this nature, evidence that the effect of victim awareness and empathy training translates into reduced reoffending is mixed. But let us leave the topic of rehabilitation until the next time.

Summary

Political expediency may prioritise the assessment of risk of reoffending (it costs more money if offenders are incarcerated beyond the period that they pose a threat to the public, whereas it costs reputations and votes when prisoners released on licence reoffend). But maybe this is done at the expense of giving due consideration to other aims of criminal justice that are not so easy to measure, such as public trust and the satisfaction of victims of crime that they have received fair justice.

Notes

Apologies: these links no longer work.

1. https://tinyurl.com/zkmv8brf.
2. Does public exposure potentiate shame? That is, does the offender have to be apprehended and publicly tried and punished (rather than 'get away with it') for them to experience the full weight of shame?
3. A recent report has concluded that confidence in the Criminal Justice System is dwindling, with more than half of people interviewed saying they would not report a crime again after their experience of being a victim: see https://tinyurl.com/v8ycf3c.

PART 2

My 'From the ASKE Chair' contribution in the last issue of the Intelligencer provoked some constructive criticism from one reader which I am sure will have occurred to others. Recall that I mentioned two examples of convicted murderers, one of whom was released on licence in 2021 while release of the other was due for consideration by the Parole Board. Neither has been reported as showing remorse and the latter has not revealed the whereabouts of the victim's body. Naturally these circumstances continue to cause great distress and hurt for the victims' families. (In fact the first of these convicts, the double-murderer and rapist Colin Pitchfork, has since been recalled to prison for allegedly approaching two women while out walking.) In my article I questioned why lack of remorse is not taken more seriously by the Parole Board when considering whether someone serving a life sentence is eligible for release.

The case of the second murderer, Stuart Campbell, is problematic because, like some convicted persons, he continues to protest his innocence. If he is being truthful, how can he reveal the whereabouts of the victim's body? Here is what our reader, Mike Griffiths, has to say:.

I would like to query some of the things that you say in your leading article. You say it is a bad thing for "there to be great disparity between, on the one hand, how the Criminal Justice System deals with suspected and convicted criminals and, on the other, what the public believe and expect should be done." One of the things you seem to agree with is "Helen's Law", which makes it more difficult for murderers to be released if they do not disclose the location of the victim's body.

I would like to remind you that it is possible for people to be wrongly convicted. In fact, most skeptics are familiar with the Innocence Project (note 1-Ed.), which has identified many wrongful convictions through DNA evidence. There must be many other wrongful convictions where the innocent convict does not have the benefit of such evidence.

It seems to me that someone who is wrongly convicted is in a Kafka-esque situation. They cannot say where the body is, because they have no idea. They cannot express remorse for their crime because they did not commit one. And because of that, they are likely not to be allowed on offending behaviour courses. Taken together, these reduce their chance of being given parole. They are even likely not to get the prison privileges accorded to someone who admits their guilt (see for example note 2-Ed.).

Everything that Mike says is true (note 3). And this does indeed raise the question what, if parole boards were to pay greater heed to remorsefulness and the feelings of the victims and families when considering a prisoner's release, they should do if the applicant continues to proclaim his innocence and hence shows no remorse? Is he to be treated more favourably than a prisoner who accepts their guilt but also shows no remorse? Is he to be accorded the same favour as one accepting their guilt and showing remorse? If the answer to either of these is yes, then the Parole Board would be implicitly acknowledging that the prisoner's conviction may be unsafe; yet this may still not be the case. This is hardly going to be allowed to happen. So on this basis it would be problematic for parole boards as a general rule to put a premium on any applicant's expression of remorse or otherwise, as I have suggested.

Concerning miscarriages of justice and their correction (here I am speaking of offending in general), improvements are needed in two stages of the process. The first is the prosecution of defendants, where all too often wrongful convictions result from unreliable eye-witness accounts, false confessions, dubious expert-witness evidence, 'official misconduct', etc. The second is the fallibility of the Criminal Case Review Commission (CCRC) set up in 1997 to assess the eligibility of claims of false conviction for consideration by the Appeal Court. An investigation by the Times newspaper in April this year revealed that 'On 90 occasions the CCRC initially refused to refer a case to the appeal court but did so after fresh applications were made. Of these, 58 led to the quashing of convictions'.

Postscript

Several very recent announcements are of relevance here. After serving 17 years in jail and following a review of the medical evidence and a retrial, Gary Walker has been cleared of murdering his girlfriend in 2003 (note 5). While in the US, after spending 16 years in prison, Anthony Broadwater, has been cleared of raping award-winning author Alice Sebold, following exposure of police misconduct at the time of his arrest (note 6). And Nizamodeen Hosein, 75, one of the two brothers convicted of the murder of Muriel McKay in 1969, is reported to have finally revealed the whereabouts of her body; he was released from prison after 20 years, still protesting his innocence, and has since lived in Trinadad (note 7). His decision appears not to have been made out of any consideration for the feelings of his victim's family but his wish to prepare himself to 'meet his Maker'.

Notes

1. https://innocenceproject.org/.
2. https://tinyurl.com/p8njfxck.
3. For further study of the issue of wrongful convictions see the Miscarriages of Justice Registry at https://tinyurl.com/5mzhk8j4.
4. https://tinyurl.com/8t47cfu5 .
5. https://tinyurl.com/bdbujpv4.
6. https://tinyurl.com/y9jthhxd.
7. https://tinyurl.com/mry9u24v.