Looting sentences - you're the judge

There has been much comment on the sentences handed out to those involved in the August street disturbances.  An early estimate was that average sentences in magistrates’ courts were 25% higher than for similar offences, while the Guardian states today that crown court sentences are up to three times as long. Beyond the predictable split between disciplinarians (who think prison works) and bleeding heart liberals (who don’t) there is an interesting question about the nature of culpability in looting. Is it one which neuroscience might potentially help us to resolve?  

From one perspective looting, even if it is not aggravated by violence, arson or other criminal acts, is worse than conventional theft. It is not simply a crime carried out by one individual or group of individuals against a chosen victim, it is a wider assault on public order and the rule of law. Because the looter is exploiting and worsening an already dangerous situation, the impact of their crime is greater and the punishment should be more severe.

An alternative view is that in a situation like riots, people can get caught up in what is happening and behave out of character. During a riot a different set of norms prevail (for example, an ‘us or them’ attitude to the police) and it is easy for people to act on impulse, only to regret their actions when things return to normal.  

Opinion polls suggest the public is much closer to the former position and supports tougher sentences. However, opinion polls always find that the public thinks sentences should be higher than those which are set. In contrast, more deliberative forms of opinion-gathering find not only that members of the public consistently underestimate current sentence lengths, but also when asked to determine sentences in mock trials they end up very close to current sentencing practice.

Another issue is deterrence, but the arguments run alongside the issue of culpability. According to the 2003 Criminal Justice Act, deterrent sentences are only to be used if the purpose is genuinely to reduce crime. On the one hand, it can be argued that the public order posed by looting means it is particularly important to send a strong deterrent message. On the other hand, if looting is a very context-specific crime, deterrence is less relevant as it is unlikely that many of those being sentenced or their peer group will find again find themselves in what the French have dubbed our ‘shopping riots’.

So how could neuroscience help? Today, as part of a Radio Four series which I am recording, I interviewed Chris Frith, Professor in Neuropsychology at the Wellcome Trust Centre for Neuroimaging at University College London. In preparation I read some of his work and this following passage leapt out at me:

‘ It is clear in at least some contexts that different violent anti-social behaviours can arise from different etiologies. Animal studies have shown that distinct networks underlie different types of aggression (e.g. predatory attack and defensive rage). From these studies, one might expect that in humans, distinct neural topographies exist in, for example, the sexual criminal, the sadistic murderer, and the political terrorist. At first glance, such reasoning looks like phrenological folly; however, evidence does suggest that violent behaviour can be placed into two broad, yet distinct, categories: affective aggression (i.e., impulsive, autonomic arousing, and emotional) and predatory aggression (i.e., premeditated, goal-directed, and emotionless). With this dichotomy in mind, Raine and colleagues reanalysed positron emission tomography data to tease apart functional differences between premeditated psychopaths and impulsive affective murderers. Compared to controls, the impulsive murderers had reduced activation in the bilateral PFC, while activity in the limbic structures was enhanced. Conversely, the predatory psychopaths had relatively normal prefrontal functioning, but increased right subcortical activity, which included the amygdala and hippocampus. These results suggest that predatory psychopaths are able to regulate their impulses, in contrast to impulsive murderers, who lack the prefrontal “inhibitory” machinery that stop them from committing violent transgressions. Although more work is necessary, these studies strongly suggest that some kinds of criminal behaviour are associated with dysfunction of different regions of the brain’.

I asked Chris if this meant we might one day be able to distinguish between looters who exploit disorder to pursue their wickedness and those with weak self-control who get caught up in the moment. He pointed out this would only work is we had the agreement of looters to be wired up to a brain scan at the time of their misdemeanours! Nevertheless we could in theory subject apprehended looters to various tests which might give us some indications as to which kind of offender they are. Of course, if your first priority is public safety it doesn’t necessarily flow that you should treat people with less self-control any better than those who act badly with thoughtful intent, even if you have more sympathy for the former.

I am genuinely interested in what readers make of this. If we could distinguish the two types of motivation, should it matter and should it make a difference to the sentences people receive?

PS: For those who would like to hear the voice behind the blog, or just listen to good radio (for which the credit goes to the producer not the presenter), here’s a couple of links:

Yesterday's edition of The Forum on BBC World Service   

The Radio Four programme, Human Kind, broadcast in August about the eccentric and tragic genius George Price. (If you enjoy this then come along tomorow lunchtime to hear George's biographer talk at the RSA).