The American Civil Liberties’ Union is underwriting an appeal to the European Court of Human Rights against the sentence imposed on the two boys who killed two-year-old toddler James Bulger in England last November.
They are arguing the indefinite sentence “”to be detained at Her Majesty’s pleasure” breaches the UN Convention on Human Rights because it will finally be determined by the Home Secretary, not the judicial system and that the two boys, Robert Thompson and Jon Venables, both 11 at the time, suffered inhuman and degrading treatment when they were tried in an adult court.
Australian states and territories have trial by jury in adult courts for serious offences committed by children, but the “”detained at Her Majesty’s pleasure” is unnecessary or unusual with children in Australia because most states (including the ACT) do not have mandatory life sentences for murder, but up to life, so the court can fix a maximum and minimum sentence. Lesser offences by children are dealt with by magistrates usually in closed court.
However, Australian states do have “”Her Majesty’s pleasure” in cases where people are found unfit to plead or not guilty on the grounds of insanity. A woman was thus sentenced last week in NSW.
The rationale is that circumstances might change. The insane might become sane later and that children will become adults. Because of that courts should not impose a fixed minimum detention period, but leave it to the executive to determine as time goes by.
Indeed, that rationale can be applied to all. Circumstances change for everyone. That is why we have a parole system for adults. Also judges regularly make recommendations in Britain about the length of time children should serve. In the Bulger case, the trial judge thought eight years and the appeal judge ten. But the Home Secretary is not bound by it. James’s parents are raising a petition for them never to be released.
With interference from the well-intentioned civil libertarians, the Strasbourg court could force Britain to set a fixed period for their sentences and to ensure treatment rather than punishment becomes a priority.
But this can back-fire. What if the treatment is successful (insofar as these things can be measured) before the fixed term is up? Then punishment would be the priority.
Indeed, it is likely the boys will stay longer in custody if a fixed period is set now, at a time of high emotion, than if it was left some years. The horror of the crime is still in the memory of most voters (and the Home Secretary is a politician). The victim’s family are available for media comment etc etc. They would not get under 20 years.
An earlier British case illustrates the point. In 1953, Derek Bentley, then 18 and intellectually backward, and Chris Craig, then 16, climbed on to the roof of a warehouse with the intention of breaking in. The police arrived. Craig had a gun and confronted the first policeman. Who said, “”Give me the gun”. Bentley, standing to the side, said, “”Let him have it, Chris.” (It was ambiguous: did it mean hand over the gun or shoot?)
A second policeman arrived up the stairwell and on to the roof. Craig shot him dead. Bentley and Craig were both found guilty of murder. Bentley was sentenced to death and Craig to be “”detained until Her Majesty’s pleasure is known”.
Despite a national campaign, and general public sentiment “”it’s the other one that should be hanged”, Bentley was hanged. Craig was released in 1963, then aged 26. He is still alive and committed no more crime.
If he had been given a fixed sentence in 1953, it could have been 30 years (comparing to, say, the Great Train Robbers). And the extra 20 years would have served no purpose.
There is much to be said for indeterminate sentencing for the very young found to have committed horrific murders. It is unpalatable and regrettable, but we have to recognise as a fact the demands for vengeance by victims’ families and the public. And we have to recognise that those demands will be recorded by television cameras to which the political system is very sensitive. But those demands are blind to the possibility that in 10 years or so these boys will be different human beings.
If well-intentioned, highly idealistic, civil-liberties groups start demanding fixed sentences for children, especially these children, they will do them more harm than good. In the present environment, no Home Secretary will give them under 20 years.
In 10 years’ time, however, a Home Secretary might think differently, Moreover, the public might think differently as the then 21-year-old boys might be able to show 10 years of remorse, reform and changed character. And if the worst comes to the worst and they are still dangerous, they can still be kept in custody.
Of course, a future Home Secretary can always step in, but if a previous fixed sentence has been given, it makes it that much harder.
The demands for vengeance now are emotionally understandable, but they have to be tempered with other experience. Most serious crime is committed by males between their teens and late-30s. After about 50, and certainly after 55, these men often cease to be a danger and continued incarceration is a waste to the community generally and to them.
Vengeance now may make some feel good now, but it does little for society in the long-term, as NSW is slowly finding out with its truth in sentencing. The politicians look and feel good, but the expensive, embittering jails are unnecessarily over-flowing and NSW’s crime rate is no lower than Victoria’s with a far lower imprisonment rate.
The only truth to come out of truth in sentencing will be that unnecessarily long jail sentences do not work, and that fixing high minimum sentences at the time of the crime cut off better options later.