This is a cross post from Under the Ocular Tree.
The background case is that in the 1980s a teacher at Carmel College in Oxfordshire had groomed a 13 year old girl with whom he engaged in sex acts when she was 14. The case has recently come to court and the teacher has been sentenced to two years in prison. I make no comment on the length of the sentence and whether it was correct, too harsh, or too lenient, but I do comment on a reason the judge gave for the sentence.
According to the Oxford Mail, “Judge Mary Jane Mowat told the defendant the case was a difficult one to sentence, but that she had to jail him partly to reflect ‘reasonable public opinion.’” My concern is the “reasonable public opinion” reason for the sentence, not the sentence. We can break down “reasonable public opinion” into two components “public opinion” and whether that opinion is “reasonable” and consider each part separately.
Consider the following thought experiment that I have taken from Roger Crisp, Routledge Philosophy Guidebook to Mill on Utilitarianism, (Routledge, 1997), p.118:
The sheriff A town in the Wild West has been plagued by a series of violent crimes. The sheriff is confronted by a deputation led by the mayor. The deputation tells him that, unless he hangs the vagrant he has in his jail, whom the whole town believes to be the criminal,there will without doubt be a terrible riot, in which many people will almost certainly be killed or maimed. This vagrant has no friends or family. The sheriff knows he is innocent.
It seems to me clear that irrespective of “public opinion” the innocent man should not be hanged. Public opinion can be in favour of all sorts of things that might be rejected in law. For example, the public opinion could be to “hang all paedophiles” or “lock up rapists and throw away the key.” In my opinion “public opinion” should not form a component for sentencing policy.
A get out clause for hanging the innocent vagrant in Roger Crisp’s example above would be that it is not “reasonable” to do so. Hence, it could be argued, that it is not “public opinion” that can form a component for sentencing, but “reasonable public opinion.” The problem here is who decides what is reasonable?
In the case in question, it is the judge who decides. I will ignore the separate problem of how the judge knows what the public opinion is and simply accept that she knows that public opinion is that a jail sentence is required. In order for the judge to have an opinion on whether the public opinion of a jail sentence is reasonable, it seems to me that she has to have an opinion as to whether a jail sentence is reasonable for the committed crime irrespective of public opinion. If she does not think a jail sentence is a reasonable punishment for the crime, then the criminal should not be jailed and if she thinks it is reasonable punishment then she may jail the criminal. I am not sure why public opinion need come into it. What is relevant is her own opinion.
I suppose that there is a possibility that the judge thinks that there is more than one option that is reasonable for punishment of which a jail sentence is one. In this situation, the judge can give weight to public opinion (or the judge’s view of public opinion) in sentencing. Even if this is the situation with the sentencing of the school teacher in question, I feel that it is disastrous route to take and, in some ways, an attempt at abdicating responsibility for a sentence.
The judge is present throughout the whole trial and should consider all facts and mitigating factors when sentencing. The public have not necessarily done so. They might have just seen a headline in a newspaper or heard a biased report. Public opinion of a sentence might be of interest to sociologists but when it comes to the sentence itself a judge should not allow themselves to biased by it.
