Should prisoners get time off for poor prison conditions?

Should prisoners get time off for poor prison conditions?

The sentence must fit the crime, but should judges start granting time off for poor prison conditions?

Marcel Berlins
The Guardian
Wednesday November 7 2007

He was the Latvian-born owner of a popular Knightsbridge restaurant, convicted of raping one of his customers and sentenced to nine years' imprisonment. There was no doubt of his guilt, but he appealed against the length of his sentence. The job I had then, dealing with criminal appeals, required me to analyse his grounds for wanting his sentence reduced, and report to the judges who would be hearing his appeal. His main argument was that, because of his past personal history, nine years in jail for him would be a far worse punishment and ordeal than for other prisoners. During the second world war, in Latvia, he had been incarcerated for some time under terrible conditions, with the result that he had a deep psychological fear of being cooped up in captivity. The judges reduced the sentence to seven years.

I was fascinated by the case because it raised, for me, a philosophical issue about sentencing and punishment that is seldom debated. The other evening, a few remarks by one of our most senior judges revived my memory of the Latvian rapist. Speaking at a meeting of the Prisoners' Education Trust, Lord Justice Judge - the head of criminal justice in our courts - posed, in effect, the same interesting question: when deciding on the length of a prison sentence to impose, how far - this is my way of putting it, not his - should the judges base their decisions on the actual level of pain and distress caused to the prisoner? This was Lord Justice Judge's comment (in the context of a question put to him about how far prison overcrowding should affect sentencing): "I have believed for some time that you have to take into account, in the punitive element of the sentence, that in conditions which are wildly overcrowded, you may be serving your sentence in dreadful conditions, locked up with other people, or forced into a situation where there is no exercise." In those circumstances, he argued, judges could be justified in passing a lower sentence than that which would normally be appropriate. It's time off for poor prison conditions.

Let me put it another way and get back to the philosophy. A criminal deserves say, 20 Berlins-units of punishment. He can get that by being sent to a comfortable, uncrowded prison, but he'd have to stay there for five years. If, however, he went to a rubbishy prison, he'd accumulate his 20 units in four years. And if, like the Latvian, he could prove extra distress, his anguish would allow him out after three years. In theory, this is not as silly as it might at first seem. It is undeniable that some prisoners take to their confinement easily (one consequence being that the threat of possible subsequent imprisonment is no deterrent), while others find it almost unbearable. Given the same sentence for the same crime, one prisoner will have suffered mildly, another greatly. There will have been no equality or fairness of punishment. To achieve that, even at the minimalist level hinted at by Lord Justice Judge, creates forbidding problems. (What, for instance, if the prisoner is shifted from a nice prison to an unpleasant one? Does he get his sentence reduced?) If, as is morally just, length of imprisonment should depend on the volume of actual pain and distress suffered by the prisoner, our whole sentencing structure will have to be revolutionised.