There has been surprisingly little attention paid to the Court’s decision last Friday not “to order that [a gang murderer] serve a life sentence without parole” despite the judge’s admission that she was “required [by the three strikes law] to order that [he] serve that life sentence without parole” unless it would be manifestly unjust.

She then converted that requirement to find manifest injustice  into the standard pre-three strikes judicial quibbling about disproportionality. With breathtaking ease she slid past a previous manslaughter to focus on the ‘relatively minor’ nature of the offences that triggered the three strikes law application, managing to take into account also the ‘signs that you wish to be more pro-social as noted in the presentence report’ .

She completely turns on its head the law’s intent that offenders get greater certainty about the consequences of offending, noting that the murderer would not have known at the time of the earlier offences of the three strikes certainty.

Judicial naivete at its worst. It is only by applying the law, that offfenders believe that it will be applied. The most clear lesson  from the experience where three strikes certainty was followed by dramatic reductions in offending, was that pitiless certainty finally sent the message to offenders that they could no longer gamble on meeting soft judges and gullible parole boards.

Sensible Sentencing is correct to highlight this judgment in their Judge the Judges website.  But the judge concerned is orthodox.  Judges generally resist punishment as a legitimate and sufficient purpose of sentencing. With Parliamentary sanction they have collectively warped criminal law from doing justice on behalf of victims and the innocent, into a primary role of therapy for the criminological needs of offenders. They do not respect the common sense intuitions of ordinary people. They resent the demand for retributive, incapacitating and deterrent punishment. To them only rehabilitative objectives are truly noble.

Parliament is complicit in this. The 2002 codification of sentencing principles was deliberately opaque. It tells judges contradictory things because the politicians wanted to be able to legislate incompatible slogans. They know that people hear differentially, so that they recall only the slogans they wanted to hear, and do not remember that the same politician also legislated the opposites. Politicians fail to legislate priority ranking to the competing considerations in sentencing partly because the debate on priorities would reveal how far their values are from those of most voters.  Hiding from voters in this area is abetted by shared values with the media. We saw recently how bewildered the media were by the public’s indifference to the Dirty Politics beat up. They are even further from understanding ordinary peoples’ dislike of elite views on criminal justice.

Within the club the insiders deride voter opinions. So all parties collude to avoid open Parliamentary debates where that would become evident to voters.  Democracy relies on consensus on many such compromises, though it is reprehensible in this area.

So MPs consciously leave it to the judiciary to reconcile sentencing contradictions unaided by legislative ranking. The judges are not unhappy, because they do not want the legislators to straitjacket them either. They have more power with contradictory law. They deliberately ignore law they do not like in any event, such as the clear legislative  instruction to deliver maximum sentences for the worst cases. I cannot recall any maximum sentences for serious crime, ever.

What happens in Parliament is a reflection of the pressures of democracy, plus the normal ‘tribal identification/in-group/out-group’ mechanism among ruling cliques. Politicians want to pass law that looks as if they respect the overwhelming public sentiment. So they put words into law that appear to respect it. But most of them also wish to maintain respectable membership of the insider club. That means they must flash elite class badges at key times. The simple way is to espouse values that are different from and ‘superior to’ common values.

For several generations criminal justice has been one of those intellectual ‘lek’ areas, where the elite can boom their superior compassion to each other by ritually trampling on ordinary peoples’ instincts about justice, retribution, deterrence and incapacitation. I studied the criminological literature in which insiders reassure each other of a research foundation to their superior morality and intellects. It is flimsy bullshit. But they sincerely believe it. Because they want to, and need to.

Judges do too. That is how they feel superior to to their more effective predecessors, from periods in which our criminal justice was much more successful in protecting the innocent and upholding norms of civility. But because humans have a perverse application of the common ‘investment fallacy’ – that things are worth what has been invested in them, not what they will deliver in returns, we tend towards sacrifice in all faith based or religious behaviour. So judges and liberal politicians feel that the costs to avoidable victims, of the elite’s’ parades of  ‘compassion’, are the sacrificial price borne by ‘the community’ for holding to the higher values of the anointed. The greater the sacrifice, the more it demonstrates the anointeds’ superior virtue.

It helps that the sacrifice is largely borne by others, outside the leafy suburbs and safe offices of those making the law.