1) Will this type of innovative punishment be effective?
Maybe. Different aspects of punishment will deter different types of criminal. Some need rehabilitation. Some need humiliation. Some need just to be locked away for a long time. And, unfashionable (and uncharacteristically "right wing"?) though it may superfically seem, some need to be beaten to within an inch of their lives.
Before anyone asks for my subscription to the hang-'em-and-flog-'em society, let me say that the problem with corporal punishment (and one of the problems with capital punishment) is that even with discretionary sentencing, human nature leads the public, and certain courts and certain judges, to over emphasise one type of punishment.
We all like to generalise, and we are all creatures of habit. If flogging works on one case of sheep theft... we'll, it's bound
to work on all of them, isn't it? Add to that the modern media's coverage of cases tending not to go into the detailed nuances of each case, instead using somewhat simplistic headlines summaries (or worse, in the tabloids), and it's easy to see how things get out of hand.
If you don't believe me, just look at prison sentences. Even with all the other options of community rehabilitation, probation, tagging, what-have-you, and such-and-such, the public still doesn't seem to think that an offender has been properly punished until they have worn a suit with arrows on it and broken rocks in the hot sun. And juries (and judges) are drawn from the public. This is in spite of the fact that this view of prison is at least 50 years out of date anyway, and regardless of whether the particular punishment will have any impact at all on the particular offender's likelihood of doing it again when they get out.
And even after all that, I maintain that punishment is not a deterrent to crime anyway. I think crimes fall into two categories - those that are committed on impulse with no thought, in which case no thought is given to any consequences; and those that are planned, in which case the perpetrators doesn't hope not to be punished
, they hope not to be caught
Everyone knows that one is dependent on the other - you can't be punished if you haven't been caught, can you? We just seem to forget this obvious dependency when we think about punishment - "hang 'em" - which just means we haven't really thought about it ourselves
, it seems to me.
I think more policemen and, in particular, more and better detectives would be a greater deterrant than five or ten extra years in jail if
they get caught and if
they then get found guilty at trial.2) Is the judge warranted in changing the jury's verdict or is this an invitation to judicial activism?
From reading the quoted material, I don't think the judge has
changed the jury's verdict
, but has changed their sentence
. Given my misgivings about jury sentencing outlined below, I don't see this as a problem.
I'm not sure of the procedural merit of a judge circumventing a jury's sentence, but I certainly like his approach. While I like the idea here I can't help but wonder if there is a risk that this type of sentencing could get out of control or abused if it turns out to be effective.
I'm nervous of juries deciding sentencing full stop. I would much rather that juries limit themselves to deciding guilt or innocence, and allow judges to dish out the sentences in accordance with published guidelines for each jurisdiction. They have to be guidelines so that judges can tweak sentences up or down to fit the crime.
And like you, I think this risks being the thin end of the wedge. The first mental image I got reading the opening post was that of someone in the stocks on the village green having rotting vegetables thrown at them. I think we as a society have outgrown the need for such things, don't you? (The social need hasn't gone altogether, which explains the popularity of reality TV shows like "Big Brother" or "Survivor".)