Ken Clarke & two politics

I’ve never understood why many people had a high regard for Ken Clarke. Even so, I fear the fuss about his remarks on rape reflect discredit not just upon him, but upon our political culture too.
What I mean is that there is a genuine and tricky political question here that is being overlooked.
Imagine we were to implement one implication of the “rape is rape” view and give all rapists long sentences. Because people are risk-seeking in the domain of losses, this would discourage guilty men from pleading guilty as they‘d prefer to take their chances with a trial. This would have two effects. It would inflict upon victims the trauma of giving evidence and reliving their ordeal. And - juries being juries and reasonable doubt being reasonable doubt - it would mean that some guilty men might get off.
Clarke’s proposal to discount sentences for guilty pleas is intended to diminish these costs.
What we have here are a set of trade-offs. There’s a trade-off between giving rapists long sentences on the one hand and ensuring all the guilty are convicted on the other. And there’s a trade-off between justice - insofar as harsh punishments are just - and minimizing costs, both to the victims in terms of giving evidence and to tax-payers in terms of banging people up for long spells.
These trade-offs are ubiquitous in sentencing policy. In some cases, the sentences that are best from the point of view of deterring crime might be too harsh for the requirements of justice. In other cases the sentence necessary to ensure adequate punishment might actually lead to more recidivism.
The various things we want from sentencing policy - justice, deterrence, rehabilitation and cost minimization - will in many cases conflict with each other.
And herein lies the essence of what proper politics should be; a debate about what to do when values collide. Of course, judges must have discretion in individual cases, but their decisions must be taken within parameters set by informed public opinion about such values.
But this is not the debate we’re having. Instead, we’re seeing three ugly aspects of our political culture.
One is a tendency to view all political utterances through the prism of whether or not they are “gaffes” - the effect of which will be to discourage plain speaking, or indeed speaking at all.
A second is an atavistic tribalism, which leads both Ed Miliband and The Sun to demand Clarke’s resignation, both on the grounds that he is not “one of us.”
And this leads to a third aspect - the tendency for politics to be reported in terms of who's up/down/in/out - terms which are to a large extent uninteresting tittle-tattle.
Meanwhile, the real substance of proper politics is forgotten. 

Comments

[Phil]

That's actually a defence of Ken Clarke - or at least a critique of his critics. With which, as it goes, I thoroughly agree. There are problems with what he said, but it isn't the open goal Miliband and Khan (and the Graun) are making it out to be.

[The Silent Sceptic]

Rape seems to be a sacred topic, about which it's politically impossible to say anything other than how awful it is. Clarke, however, is right that there is always a sliding scale of severity for all offences. Is it worse to sleep with someone who is blind drunk without their consent, or is it worse to drag someone off the street and hold a knife to their throat to achieve the same end? It seems pretty clear to me, and if you sentence the two cases identically (as the media outcry against suggests all right thinking people would), then it seems that once you've committed rape there can be no additional punishment no matter how awful the circumstances of the crime, which seems perverse. Or you accept that the second case is deserving of a more severe punishment in which case Ken Clarke is right, no matter how ham-fisted his expression of his view.

[Pete]

No right-thinking person would ever try and defend the idea that rape is the only crime for which the context does not matter at all, but Clarke's getting hung out to dry for attacking it.

People seem to be filling in an awful lot of blanks about what Clarke really means here, which is presumably some combination of "Date rape doesn't count", or "Girls in short skirts are asking for it."

Now he may or may not have meant that, but since he didn't actually say it, what's all the fuss about?

[charlieman]

Chris D: "I’ve never understood why many people had a high regard for Ken Clarke."

As a minister in the 1990s, he was coated in Teflon and behaved like a human being. He may have introduced bad policies but he was never there when they were enacted and "failed" (I put failed in quotes because some people are too quick to judge). He was in a new job before you knew whether he was capable of doing the last one. That is how you build reputation, not only in politics.

I was never impressed by Ken Clarke but rated him higher than the no marks around him.

Perhaps the Teflon has worn off. A younger Ken Clarke would have been more sprightly in his thought and comment, and the coalition desperately needs a young version of Ken Clarke, from the Tory benches, to support their liberal credentials. But we (UK citizens) are stuck with the elderly Ken Clarke and UK government would be worse without him.

Personally, I would be terrified to deliver my thoughts on sentencing of rapists on radio. If you make one slip in the argument, your protagonist will slaughter you immediately. The radio interview itself is not about examining ideas, but about tripping people up.

[jameshigham]

A second is an atavistic tribalism, which leads both Ed Miliband and The Sun to demand Clarke’s resignation, both on the grounds that he is not “one of us.”

He's certainly not one of the Sun lot, not being conservative but he has a lot in common with Red Ed because he is a key figure in the Pink Tory push which runs the country.

[Paolo Siciliani]

Guess what counts is the so called power of the incentives - that is how strong is the incentive to plead guilty and get a discount of the penalty. The current policy is 1/3 (Govt proposal is to extend it to 1/2), so there are two ways I suppose to increase the power of the incentives: one is to increase the discount (say, as proposed, from 1/3 to 1/2); and the other is to increase the penalty if you do not plea guilty whilst keeping the current discount.

The latter way would similarly strenghten the incentive whilst also increasing ex-ante deterrence I suppose....

[BenSix]

People seem to spend more time critiquing politicians' words than their deeds nowadays. This is valuable sometimes but when those politicians are blowhards - Clarke, Johnson - or airheads - Cameron, Osborne - their words needn't reflect their intentions.

[Keith]

I think Ken was popular ( still is? ) as he seems normal and bright; unlike other Tories who seem stupid and or weird. He is not public school I believe and comes from a non upper class background. Unfortunately this is all superficial as he is as bad as the rest of the lot he just comes across better.

What he said about rape was irrelevant to the argument he was engaged in as it is the idea of cutting all sentences by a big margin that was being criticised.

This large discount is open to criticism in many ways and he and the Government have not given a good justification and that has been overlooked regardless of the rape issue. It is the belief this is only a money saving device that enrages the press and public. All dressed up as a form of sympathy for victims of crime.

[William]

Nice post.

[Innocent Abroad]

The existing law allows prosecutors to distinguish between different "kinds" of rape by adding charges of actual bodily harm, false imprisonment etc.

As letters in to-day's "Guardian" make clear, almost all rapists had some sort of relationship with their victim prior to the offence being committed, and the real problem is the 6% conviction rate.

I have long argued (over at "Liberal Conspiracy", mainly) that we can have a rape law that meets the needs of women, or we can have one that is fair to men - which is what we have at present. So long as "reasonable doubt" applies, a "he said, she said" will lead to an acquittal. Trust me - I've served on a jury dealing with a sexual offence. What we can't have is a law that is fair to both men and women.

If we want to do something about that scandalous 6% rate we are going to have to take a deep breath and accept that some men (and, of course, the women in their families) are going to suffer unjustly.

Over at "Liberal Conspiracy" the view was that better rape suites would fix the problem. Talk about wishful thinking.

[Keith]

"I have long argued (over at "Liberal Conspiracy", mainly) that we can have a rape law that meets the needs of women, or we can have one that is fair to men "

It is hardly liberal to propose that Men should not have equal rights to women. The state must prove its case in criminal Prosecutions regardless of the Gender of the defendant.

[Innocent Abroad]

Keith, I don't consider myself a liberal. The word is part of the name of a website, that's all. And the concept of "indirect discrimination" appears to have passed you by completely.

[Keith]

"Keith, I don't consider myself a liberal. The word is part of the name of a website, that's all. And the concept of "indirect discrimination" appears to have passed you by completely."

Equality of all before the courts is surely a democratic socialist idea as well as a Liberal one. Or has that concept "passed you by completely".