Michael Kelly: Don’t look to America in fight against crime

THE US approach to dealing with terrorists and other offenders is a poor example for our legal system to follow.

This week the United States Supreme Court found unconstitutional the mandatory life sentences for children that had spread to 12 states. These states had enacted legislation not only to try children as young as 12 years of age as adults, but then to require judges to impose mandatory life sentences without the possibility of parole on those found guilty of serious felonies or crimes of violence. The decision will benefit 2,500 children currently in jail until they die.

Surprisingly in a country where popular opinion is often more important than facts in determining social policy, the court was swayed by scientific evidence. That convinced five judges that “children are constitutionally different from adults for sentencing purposes. Their lack of maturity and underdeveloped sense of responsibility lead to recklessness, impulsivity and heedless risk-taking.”

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Children do change as time passes. As if we all didn’t know that. Two other judges rejected the scientific evidence – whether correct or not – as irrelevant and voted against the majority decision for that reason. That is frightening.

But so is the whole American approach to human rights. It diverged sharply from Europe at the very birth of their country. While theirs was the first republic, it was quickly followed by the French Revolution. But while the latter country immediately proclaimed égalité as one of its watchwords and abolished serfdom and slavery, the Founding Fathers, including slave-owning Thomas Jefferson, specifically wrote slavery into their brave new constitution.

This cynically pragmatic approach to human rights has run the whole way through American history. Their Civil War was fought because some states, having joined the Union voluntarily, thought they could voluntarily leave. But the federal state, led by lawyer Abraham Lincoln, was having none of that equality lark. After his victory, most African Americans were banned from voting for a century.

Today, 169 prisoners are locked up offshore in Guantanamo Bay. They have been subjected to torture, yet the half of them who have been cleared for release have no real prospect of being let out. The other half have no real prospect of being tried – even by trumped-up military tribunals.

Meanwhile, according to ex-president Jimmy Carter, suspected US terrorists are being targeted for assassination. Drones kill suspected terrorists and innocent bystanders with equal indifference, warrantless wiretapping erodes human rights, and some states allow individuals to be detained because of their appearance, or where they worship or with whom they associate. And, of course, capital punishment continues apace, having been endorsed time and again by the Supreme Court despite its obvious contradiction of the declaration that every American citizen has the right to life, liberty and the pursuit of happiness. How do you square that one?

This is not the rule of law as Europeans understand it. And yet the UK has signed an extradition treaty with the US which has seen innocent British citizens clapped in irons and orange jumpsuits and thrown in jail for months as flight risks. That treaty must be renegotiated.

But, more broadly, we must take no guidance from the US on how we investigate and fight terrorism. It is clear that savage restrictions of human rights only hand terrorists a victory. We are not like them. Let’s not adjust our society to mimic the one they desire. The nonsensical and intrusive checks at airports are more about reassuring the public that something is being done than about effective security. For example, you can only take a tiny bottle of liquid on board. But every one of your group can take the same small dose, which add up to a big amount. And why are laptops separately scanned in the US, but not Kindles? And why have I to explain away my replacement knee every time I walk through a scanner holding my trousers up for lack of a belt? No good reasons. These are civil rights we could have back tomorrow.

But beyond terrorism we must liberalise our policies towards crime. Attitudes have hardened since the mis-interpretation of Tony Blair’s announcement that Labour would be “tough on crime and the causes of crime”. He was talking about tackling the poverty, the deprivation, the lack of education that were at the root of much anti-social behaviour. It has been interpreted as open season for introducing draconian penal measures.

We jail too many people. We keep them in useless prisons too long. We must stop building these institutions of despair and take the scientific approach to reducing recidivism. It will be difficult and unpopular to reverse the victim-driven policies that were introduced to catch the public mood. But the public is so often wrong. Current policies lead not only to an endless cycle of crime, they train petty criminals to be bigger criminals. They cost more money than would a more understanding – and let’s not confuse that with sympathetic – approach to people who refuse to follow society’s rules.

Surveillance has crept in unnoticed, until you realise that the police can trace a suspect from Edinburgh to Argyll. Fine to catch a murderer, but so easy for the state to abuse. A police state is too large a price to pay for a better clean-up rate.

Despite our indifferent record on civil rights, Scots have always taken pride in the enlightened attitudes dating back to Hume and Smith. Nelson Mandela and Martin Luther King were icons who received much support here.

Last week Scotland had another opportunity to demonstrate on the international stage our belief that the individual is more important than the state. Yet the SNP organised a political boycott of the most respected current figure in leading the fight for justice and freedom. Taking our lead on human rights from China, the Dalai Lama was snubbed from Holyrood to Dundee. Is this the fairer, more just Scotland that we are promised?