"The eternal spirit of the Populace"

 I recently had the privilege of taking a law school study abroad course in the UK, where—among other things—we focused on comparing the UK system of criminal punishment to that of the United States. The differences between the two that appeared to us were in many cases the obvious ones—the ones most familiar to longstanding critics of the US administration of justice. The UK system is, like most of those of Western Europe, broadly speaking more lenient than that of the US. It is generally more favorable to defendants, and results in less harsh penalties. Prison sentences in the UK are typically much shorter than those in the United States; and of course, the UK, like most of the developed world, has long since abolished the death penalty, even as the US continues to enforce it (to our disgrace). 

These were all the obvious differences, as I say, that I came to the UK expecting to find; they were not really news to me. More interesting to my mind were the cracks we found that are beginning to appear in this familiar narrative. For instance, the UK government has made some relatively recent (as in, during the last few decades) changes to its criminal justice system to make it less favorable to defendants. A 2003 reform, for instance, removed the traditional protection against double jeopardy, which the US still retains, for the limited number of circumstances in which substantial new evidence comes to light in the aftermath of a trial. Such legislative reforms, no doubt, are just the tip of the spear of public opinion. We read one survey finding that an overwhelming majority of the British public regards current criminal penalties as too lenient, and would like to limit protections for offenders. 

What we really seem to be witnessing, therefore, in the differences between the US and the UK systems, is not so much a fundamental cultural discrepancy between the two countries, or two different sets of widely shared public norms—but rather a difference in terms of who has the upper hand in shaping the legal system, and how responsive it is to the ebbs and flows of public opinion. The US system, with its elected prosecutors and judges, is far more likely to reflect the views of the American public in general. They have an incentive to bill themselves as “tough on crime” in order to win elections. The British officials charged with administering justice, by contrast, are members of a cloistered profession, most of whom come from the same small number of elite institutions, and are appointed through a strictly nonpartisan process largely closed to the direct interference of politicians. 

The depressing conclusion, therefore, is that, as a general rule, wherever majority opinion dominates—regardless of country, climate, or culture—the bias will tend to be toward harsh penalties and summary justice. The populace of every country, even the most supposedly “enlightened,” is forever crying for the stocks and the gallows. We can see this in ourselves as much as in others. As Matthew Arnold writes, in Culture and Anarchy, “every time that we add our voice to swell a blind clamour against some unpopular personage, every time that we trample savagely on the fallen,” there we find in ourselves “the eternal spirit of the Populace.” The only significant comparative difference between countries, therefore, is the extent to which the public, the "Populace," gets its way in these matters. 

I’m not sure exactly why this should be always and everywhere the case. Part of it may simply be that people in general do not react to crime by way of statistics, but rather by way of availability bias. We do not decide we need harsher penalties because we assess, based on the evidence, that they provide an effective deterrent or do a better job of protecting us from harm. We want them because we see some horrible thing in the news—a single but highly salient and attention-grabbing crime—and we think: that must stop! Or, less creditably: that person must suffer in turn!

Viz. what has happened in this country in the aftermath of the 2020 post-George Floyd reforms. The massive nationwide protests against police brutality and mass incarceration that rocked the country four years ago yielded only small changes in a handful of jurisdictions—and yet it took scarcely any time at all for the public backlash to overwhelm and reverse even these modest reforms, and start to push the criminal justice system back into an even more punitive position than it was before. The reason is surely availability bias. To be sure, crime rates rose during the pandemic and shortly thereafter—but they rose across jurisdictions, regardless of the reforms that were implemented. People therefore were not rejecting the post-2020 reforms because of a policy verdict. They were doing it because of the publicization of particularly lurid one-off examples of violent crime, which triggered people’s repressive instincts. 

The truth is that any large society, made up of hundreds of millions of people, will routinely spawn a few unrepresentative examples of uniquely horrendous behavior that could be lifted up for these propagandistic purposes. The decision that free societies have made is that there are certain things we will not do—certain lengths we will not go to—to ensure that literally zero such things could ever take place. In particular, we will not allow the arbitrary or grotesque punishments of offenders. We will not break people on the wheel or torture people on the rack, or imprison the innocent, even if it could somehow be proved that these things would deter people from crime. There are things, ultimately, that we value more highly than deterring crime—such as living in freedom and respecting human dignity. The foundation of our criminal legal system, far from it though we may have strayed in practice, remains Blackstone’s precept: it is better to let ten guilty people go free than confine one innocent person to prison. 

But individual crimes we may adduce are often so horrible, so gruesome, that it is hard to remember this. We react emotionally. When our availability bias is triggered— when Arnold's "eternal spirit of the Populace" speaks within our breast—we find we want to punish the guilty by any means necessary, and in the worst possible way. 

We often forget, in the process, that it is not by the crimes the guilty commit against society that we will be judged in posterity, but rather by how we treated those guilty. Who, in looking back on history, spends much time thinking about whether someone broken on the wheel, say, was innocent of the accused offense or not. Oftentimes, of course, they were innocent to boot (since so much so-called "evidence" at the time was extracted through torture). But—do we care? Or do we not rather think that—guilty or otherwise—no human being should ever be treated in that way? As Oscar Wilde once put it: "As one reads history, […] one is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalised by the habitual employment of punishment, than it is by the occurrence of crime."

We should all remember this, whether British or American, as we weigh this public pressure for more and harsher punishments that always seems to be so prevalent among the general public, and which appears to be in a period of resurgence—if not eclipse—on both sides of the Atlantic. The bedrock of our shared common law heritage—our traditional liberties and our dignity as a society governed by the rule of law and the impartial administration of justice— is far less threatened by the occasional crime than it is by the routine unjust and excessive punishment of crime. In the eyes of history, it is therefore not by the crime of the individual offender that our society will be judged—but by whether we have the strength of moral vision to rise above our instinctive desire for vengeance, and to prize human dignity so much, so far higher than any other value, that we will accord it even to those who break society’s laws.