The Guardian, June 2003
They hanged Huffum White in August 1813. When he was offered a last wish, Huffum told the priest he'd quite like somebody else please to take his place on the scaffold, but criminal justice had its way with him and celebrated a great achievement: they had just hanged the last highwayman in England. In truth, it was no achievement at all.
The passing of Huffum's trade had very little to do with hangmen or magistrates or parish constables. Indeed, it is an object lesson in the limits of conventional criminal justice. Huffum's colleagues were born from a co-incidence of history: the growth of a national network of horse-drawn coaches carrying the wealthy and their cash; and a vigorous crop of Royalist ex-soldiers who had lost their homes and their prospects of a lawful life in the civil war.
For 150 years, generations of highwaymen robbed their way around the country while the forces of law and order struggled to deal with them - hiring informers, offering rewards, giving full pay to constables (who had previously caught only those robbers who carried a reward), hanging them in public and then, adding horror to death, ordering that highwaymen be left to dangle in chains, rotting on the gibbet. Really, none of it worked. The highwaymen carried on robbing.
Huffum's trade died, as it was born, from forces well beyond the reach of the criminal justice system. The growth of banking and the introduction of cheques cut the amount of cash in transit. William Pitt's Act For Restricting Cash Payments (designed to gather gold for his war against France) cut it still more. The enclosure acts swallowed Hounslow Heath and Finchley Common and the other common land which had provided the highwaymen with cover. And then the railways diverted travellers from the highways. So, Huffum hanged alone.
All crime grows and dies beyond the reach of the state. It is arguably the most essential human perversity. What is obvious is that no law-and-order initiative is going to touch the social chemistry which produces highway robbery or piracy or drug dealing or any other major crime pattern. It's like asking doctors to prevent car crashes - they can't change the construction of motorways, or the design of cars, or the habits of drivers. What is less obvious is that when the law-and-order machine goes to work on those things which it can touch - when it sets out to catch and punish offenders - it also tends to fail, in a way that generally speaking doctors will not. This is because (to pursue the medical parallel) modern criminal justice still relies on the equivalent of leeches and bleeding. The system may or may not be badly run; it might or might not do a little better if it had more resources but at root, it tends to fail because it uses failed tools.
Conventional criminal justice rests on the foundation of three Big Ideas which prove to be particularly weak when they are used against the offenders who matter most, the persistent offenders or 'lifestyle criminals' who amount to only 20% of the offending population but who account for 80% of recorded crime.
First, ever since 13th century China, the state has been sending its uniformed watchmen out to patrol the streets, to detect villainy and to preserve the peace. In Kansas City, in1972/3, police decided to test the value of this. They divided their beats into three areas in which patrols variously were trebled in frequency; removed completely, with officers entering the area only if they were called; or simply left at the previous level. They then spent 12 months watching 648 different indicators of crime, fear of crime and attitutudes to police. The conclusion: the patrols made no difference. Police could flood an area, disappear or carry on as before - their visible presence on the street changed nothing. Six hundred years of patrols. For what?
This is not news to most chief police officers in this country. The recently-retired president of the Association of Chief Police Officers, Sir David Phillips, publicly derided the idea that bobbies on the beat are an effective device to prevent crime or catch criminals. He said last year that the whole idea came from an 'Enid Blyton world', whereas, in the real world, he said, most forces could put only one officer on patrol for every 14,000 people.
But, of course, there is more to policing than patrolling. The second fundamental, though more recent, activity of police is to use detectives. We obtained an ACPO internal paper, which analysed the crime rates in three-quarters of the police divisions in England and Wales and came up with a devastating conclusion. They discovered that detecting villains does not cut crime: "It is suggested that increasing detections will reduce crime. This intuitive appeal is not supported by the evidence." The paper went on to consider the impact of detections on the Home Office's two other major priorities - reducing anti-social behaviour and the public's fear of crime - and it noted that not even the Home Office had been able to find any link.
Indeed, the paper concludes that the reality of detective work is exactly the opposite of popular (and official) belief: detections do not drive crime rates up or down; it is the crime rate which drives the detections. Simply put, this means that if there are lots of fish in the barrel, you will shoot a lot of fish. Or, as the ACPO research concluded: "We find a strong positive relationship between total offences and total detections as it stands to reason that the more offences you have, the more there are available to detect. As total offences increase, so do total detections."
That is why, for example, police have increased their detection of robbery by 500% in the last 15 years, while the amount of recorded robbery has soared by 1000%; and, conversely, why the police detection of burglary has slumped from 31% to only 12% at the same time as the amount of recorded burglary has fallen from 1.2 million to 878,000.
We obtained another internal ACPO paper, in which the chief constables stood back and looked at the system as a whole in its dealings with lifestyle criminals. According to the paper: "All too often they can become untouchable and are amenable to justice only when they are unlucky....They are not amenable in general to traditional police enquiries, and other agencies ‘back off'.....Routine policing will not affect such criminal activity in any significant way." Just absorb that last sentence, written by the most senior police officers in this country about the offenders who commit 80% of our recorded crime.
Third, look more closely at the core concept of the system, the idea of punishment and, in particular, of imprisonment, and consider the extraordinary experience of Prof Jerome Miller, now of West Virginia, formerly of the state of Massachusetts, where, during the early 1970s, he was Commissioner for Youth, responsible, among other things, for some 2,000 young offenders who were then locked up in the state's juvenile prisons. Prof Miller did something which is probably unique in the developed world: he opened the prison doors.
He told us he did this because conditions were so bad that it was the only move which he could make to protect the juvenile inmates. State law gave him the power. The state governor gave him support. And so he released them, all but a dozen whom he considered to be demonstrably dangerous. And to make sure that nobody tried to put them back, he sent bulldozers to flatten most of the buildings in which they had been held. There was quite an outcry, there were scare stories in the press, and the police and the courts reacted by redoubling their efforts to arrest more young offenders and sentence them to custody. Miller simply turned them loose and diverted the cash from his prison budget to providing jobs, housing and supervision for the adolescents he had released. And, of course, there was no crime boom in Boston.
The National Council for Crime and Delinquency followed the crime careers of Miller's juveniles over the following ten years and compared them with juveniles who had served their full time behind bars. Essentially, they found there was no difference: the worst of them, from both groups, carried on offending; but there was a clear tendency for those in Miller's group to commit less serious offences while those who had been in prison tended to commit increasingly damaging crimes.
Between 1950 and 1990, England and Wales doubled the number of people who were locked up in jail - and yet the rate of recorded crime roared upwards, increasing ninefold. (These figures discount the underlying growth in national population). In the United States, the courts are incarcerating offenders at six times our rate; a third of young black men in the US now are either in prison, on parole or on probation; California alone has the third largest prison population in the world. And yet, the USA remains the most violent society in the developed world with a murder rate seven times higher than the UK. (For a complete analysis, see Crime and Punishment in America by Elliott Currie.)
Prison succeeds in the limited sense that an offender behind bars is not free to commit his crime. As a means of changing the behaviour of offenders, incarceration is peculiarly ineffective. The Home Office's own research department concluded in the early 1990s that to cut recorded crime by just 1%, they would have to increase the prison population by 25%.
The heart of the whole problem is that the system makes a set of assumptions about the behaviour of regular offenders - that they are making rational calculations about their behaviour, that they are worried about getting caught and that they are fearful of being punished. Those assumptions may apply to the law-abiding majority, but they are overwhelmingly false in relation to the generation of adolescents, usually male, who are based in the wreckage of the old public housing estates, whose values have been distorted by a childhood in collapsing communities and broken families, and whose ambitions have been swallowed by the one style of life which offers them status, excitement, a decent income and the prospect of promotion - crime and particularly the blackmarket in drugs. These are the lifestyle criminals who commit 80% of recorded crime: patrols don't inhibit them, detectives don't catch them, prisons don't deter them.
There is no shortage of politicians and thinktanks who are happy to cherry-pick their way through the facts to defend conventional law and order. But where is the evidence that this huge system with all of its resources and all of its power is an effective method of cutting crime? The ACPO paper on detections notes that there is only one piece of serious academic research which this government likes to quote in defence of the system (Criminal Deterrence and Sentence Severity by Von Hirsch et al). This does find a correlation between a higher certainty of arrest and lower crime rates but, as the ACPO paper notes, the reseachers explicitly warn that "this does not suffice to confirm a deterrent effect." Which is why they could hang Huffum, but they couldn't halt the highwaymen.