In Conversation with Professor Thom Brooks: Exploring Law, Politics & Penology

Vikram Kochhar (Interviewer)

To begin with, what inspired you to pursue a career in law or legal academia?

Professor Thom Brooks (Interviewee)

So I came to it in a strange way. Probably most of the people who are reading this are closer to your age than mine, and they are reflecting on their future, before they have a career or anything resembling it, and thinking about if they want to be a lawyer of some kind or legally involved, but maybe not certain about whether they would become a paralegal solicitor or barrister, work for the government, get into politics as a lawyer, become a journalist and so on.

For me it was very different. So when I was about 18 or so, I thought about going to law school. I'm originally from the United States, I'm an American and British citizen, and I thought about going to law school and I did a law school prep course at my university, but rather than actually take that test, I took the test to do a master's and I went down a different road altogether with my academic study and then came to work in a philosophy department and then a politics department in the United Kingdom. What got me into law originally was that I don't see a firm line between political and legal philosophy, and I became very interested in both political and legal philosophy. And that was something that essentially grabbed me at first, that to think about the philosophy of politics is to think about the philosophy within institutions, within the state, and that inevitably gets you running up against legal issues, whether it be criminal law and sentencing and the punishment stuff which I know. So, yes, I'm not seeing much of a difference between these things and being a political and legal philosopher, whatever that means.

I found myself strangely at home as an academic, whether I was in the philosophy department, which I had been, whether I was in the politics department, which I used to be in, or now in a law school. I feel probably most at home in law because I've become more clear about the options and opportunities that law offers that other programs don't. In law you can learn about philosophy through taking jurisprudence. You can learn about politics through constitutional law, for example, amongst many other options. Also in commercial law, for those who are reading, it's not just economics, there's also a lot of politics at play there, or tax law, but it just seems there are a lot more opportunities for what you want to do and I find that more enjoyable. I think of law as, rather than being very narrow as a subject, there’s actually a wide set of compulsory classes you need to do, and so I like that and I find law more fun.

VK

So would you say you developed your interests through the intersection between fields like politics and law?

TB

Yes, I find law is essentially multidisciplinary. I mean, this is a very unorthodox view of law, but even as kind of a black letter exercise, you're just learning the statutes, so to speak, and just looking at the case law. Psychology and sociology and politics and philosophy and criminology, all these things merge together in law in ways that to me are so visible and so obvious and uncontroversial. As opposed to doing this, you could do philosophy and not get into other fields, you could do politics and not get into other things, but law seems to bring you into contact with many different interesting fields. I find it intellectually fascinating, so I love it, absolutely.

VK

Absolutely- and I’d say that whilst many people may think that the study of the law is quite far off and distant from the rest of society. But I think, as you've made out, it really has a lot of presence in various other fields, like, as you said politics, economics, and just the general study of society. So delving further into your current areas of interest: across the past few weeks I have had the chance to read into some of your work on the theories of punishment, and something that was particularly interesting was the role of rehabilitation and restorative justice: from your expertise, how important would you say are principles like restorative justice in reducing crime and recidivism rates?

TB

I was always fascinated in theories of punishment in general. Someone does something bad, whatever that is; murder, theft, property damage, it can be lots of different things. Let your readers’ imaginations go wild. So someone does something bad to you or to others. So what should we do? I've just found this fascinating, with some people thinking of a retribution view that we should punish and give them what they deserve even if it doesn't cause any better outcomes. And you can then raise the question: who would like to punish the innocent? No hands go up. Everyone agrees with the retributivists that we should punish the guilty. The punishment being deserving seems to be fundamental. But meanwhile, you get the deterrence crowd, which thinks that we should punish people in a way that makes crime more likely rather than less likely.

You know, all hands go up. Everyone's like, ‘yeah, we want crime to be less’. Ok, great, thank you very much. And then the rehabilitation crowd, who would like to have punishments that, if it was possible, reform offenders. They don't do it, not because they're scared of being punished, but they don't do it because they don't want to do it. Most of the time people don't murder us and don't steal from us and don't do lots of terrible things. For most people, crime is something that happens every day to people all over the world, and in every country that we find it, but it's not something that happens to every individual every day, and often I think it's more because people just don't want to do it. I don't steal bikes, not because I'm afraid of the punishment, but I just don't do it because I don't want to do it. And so you have these different theories of punishment, different goals of punishing the deserving, making crime less likely, making offenders realize they shouldn't be doing this kind of stuff, whether or not they're scared, and they're really just coming to realize that they should follow the law. Who's against these three principles? Nobody. The issue is always how these things might come together. What's interested me about restorative justice is that it seems to be a way of having your cake and eating it in a very interesting way. Traditional theories of punishment work on the traditional model that someone's been accused, someone has been charged, that they appear in court and that there's some kind of formal process, whether it be magistrate's court, crown court or, people in different countries, whatever your court system involves. But the idea of the problem here is that most cases never get to that point. In fact, most cases that do get to that kind of point never lead to any type of trial. This idea of there being trials with juries and so on and so forth even in countries that have them- they're almost antique pieces. 96% of cases in England and Wales, or 95%, have no guilty plea. It's something similar in most areas of the United States, maybe a percent or two less. Scotland 98%. No jury, no trial, it’s just that things are sorted before it ever gets to that point.

And the issue here, of course, is that the overwhelming majority of folks are convicted. Victims have no choice to speak. Offenders don't say anything, for whatever that's worth. Sometimes they don't even have to go, and there's this concern that the outcomes aren't very good either. It takes a lot of delays in getting to court and so on and so forth, and a big problem with people reoffending. So with restorative justice, it tries to shake things up. Instead of a formal process, it's an informal process. If someone has been charged with a crime, instead of going to court, they go to basically an office building. They meet in a room with a table and chairs around it. There'll be the victim there. If the victim's willing to take part, there'll be a trained mediator, trained similarly effectively to a judge and magistrate for all intents and purposes. There are lots of differences, but more or less a trained person, and the idea is that if I agree that I am guilty, if I am willing to admit my guilt, because it's true I did it, and make an apology to the victim and engage in this conversation of restorative justice, then one of the things that won't happen to me is that I will not be going to prison as an outcome. And another thing that’ll be happening is that if I agree to the terms and conditions at that meeting- whatever they might be- and I don't know what they are ahead of time I just know they won't include imprisonment, that if I agree to them, then I will be without a criminal record. So those are incentives for offenders to take part, since prison is not an option in these discussions.

The way it’s run at the moment- I call it minor crimes by minors. This is the province of youth courts. It’s often juvenile offending kinds of things or young adult minor crimes. This is not usually something you see for anything above assault, and nothing certainly graver than that: usually criminal damage, theft, and so on and so forth. The big idea is that we meet together, the victim states the impact on them, and the offender might not realize the impact their actions have had on another, and so they get to the understanding that their actions have had consequences. The offender makes an apology and it gives an explanation about why they did what they did, not trying to look for any excuses because they've admitted their guilt and they are confessing so to speak, but giving some context. This is supposed to be helpful for the victim in finding closure and not just confronting the person and giving voice to how they felt about the crime, but also being able to see the offender as not a faceless, nameless creature in the shadows that might spring out at any time, but a live, living person with all the issues that someone has. Sometimes you can have what's called a restorative conference, where each might have a partner or there could be members of the community there that can speak as well and they agree an outcome. So, if the offender has drug and alcohol treatment issues, then some drug and alcohol treatment is typically required. There'll be community sentencing or certain community service hours that will be required. There's usually some reparations, something not usually large as no one does this for the money, but some kind of payment or compensation towards victims as is appropriate, and a timeline that this has to be done in, in terms of weeks or months. And I don't think it's easy for anyone to admit their guilt to the face of their victim. I think that's a hard thing. Just think of sibling: who pinched the last cookie in the cookie jar and this kind of stuff. It’s trivial, everyday nonsense, but tensions can be high, people can be full of embarrassment in having to fess up to their parents or guardian. Multiply that many times for something like this- I don't think it's so easy. I think doing community service in these ways is also not so easy for those who need drug and alcohol treatment, those who've been to these meetings, especially the first few meetings.

These are not easy things to go through. So I don't know if it's an easy option. The alternative is they just spend a few days or a month in prison with no help or support or anything and are then just released. It's not quite clear what the purpose of that is, other than disrupting someone's already disrupted life. What the studies have shown from the UK Home Office, I’ll use that as one example, although these examples that I'm going to give have been replicated in Australia, famously through a lot of work by John Braithwaite and other criminologists there and also studies in the United States. But basically it's been found that the victim satisfaction goes through the roof. Victims are typically very dissatisfied using the formal process. It takes forever. They often have no voice and victim impact statements are not a thing since, in every US state, every case they often don't have the option of giving any voice. Victim satisfaction is 80, 85 percent or higher here. Offender satisfaction for those interested in that is often at these similar heights as well. So both parties are more satisfied with this process. Crime recidivism, re-offending, typically goes down on average by up to 25%. Compare that to the formal process, where typical reoffending goes up after the fact. So this is a massive step in the right direction.

In the UK context it's always been shown to save money. But the UK figure is, for every pound you spend on restorative justice, you save nine pounds. So for those who think that we should only target those who deserve it, you've got someone who admits they did it, admits their guilt and apologizes to victims. For those who think it should be proportionate to their wrong, the outcome is dependent on the circumstances of the offender. For those who think that deterrence is a very important thing, people should be deterred, or think the reform of the offender is a hugely important thing, the reform is targeted to the needs of the offender to reduce their reoffending, and you get lower reoffending rates and happier participants. And for what little it's worth morally, for the taxpayer they save a bundle going down the route of restorative justice.

So I have again an orthodox view about restorative justice. What I like about it isn't so much that it's a lesser use of prisons- although I do think prison can make a lot of things worse, even though I think it is also a hugely important thing that is necessary in lots and lots of cases, but I think it's not necessary in every case. Even the Conservative Party in the UK has argued for what they've called a rehabilitative revolution, and I've spoken to Michael Gove and Robert Buckland and others who've been justice secretaries, who've given lots of support to the use of restorative justice. Yes, they've also given examples where they think sentencing could be more severe in some cases. There should be more prison for some, particularly some violent repeat offenders, but with restorative justice also being an essential bit. I don't see it as a left and right wing thing. I think it shouldn't be a political ball game being played. And for those who think desert, deterrence and rehabilitation should be fostered, it's an example of how you can get all three of those different theories, those different penal aims, achieved using one model. Now, it's often used only for first-time offenders or those who don't have a long criminal record, often used in cases of offenses that are relatively minor, and I'm not saying anything about usage beyond those types of cases, but where it's been used, it seems to have a lot of promise. And when I speak to professionals who work in this area, whether it be probation officers, people in the prison service and so on and so forth, restorative justice is often everyone's favourite option. It's not true of everyone, but it's the overwhelming preference.

VK

For those reasons, do you believe that in the future, restorative justice could be applied on a universal scale?

TB

I do think that restorative justice can be used on a universal scale, insofar as I think every country should consider adopting it if they haven't already. One of the things that some of the proponents of restorative justice like to talk about is how traditional forms of justice that are pre-modern, pulling aside colonialisation. I mean in terms of pre-colonial times, I suppose. But whether it be in the Maori community in New Zealand, Aborigine in Australia- John Braithwaite makes a big deal about this- Native American groups in North America as well. I've taken an interest and this is, I'm sure, not going to be something I expect you to be probed on too much right now, but I could be surprised: Anglo-Saxon law also involved communal justice. It wasn't just that you did something, so we kill you, and there was this idea of being reintegrated and making amends, to be without imprisonment and shackled. Yes, there were also lots of examples of what many of us would consider, I certainly would call, barbaric treatment of people. Too many cases of this, but it wasn't the case that happened every time, and you did have a lot of communal justice even then, of a restorative sort. So this idea of restoration through people doing things, to make amends that are punitive, that impose burdens on people, that deprive people to some degree of their liberty, that make them do things they don't want to, but which have a rehabilitative, reformative, reintegrative aim, that is something that is neither Western nor non-Western. It does seem to be something we find in cultures around the planet, in multiple epochs, probably for most of human history. I think it can be applied, of course. Can it be applied universally, in terms of every criminal event? I think probably, almost certainly not. I could entertain hypothetical examples, but I think for a lot of violent crimes, in particular the most serious crimes, it seems pretty obvious to me that justice would be inappropriate. Favour that, and I'd be.

There's a castle, a 10 minute walk from my office right now, and they used to keep people in the keep. But they were kept in the keep not as part of the punishment. They were kept there because they were accused and they were waiting for the king's representative to come to town. And then, when the king's representative came to town, they then found out whether they were innocent, charged a fine, put in the stocks, or were they killed? This idea of holding people in a prison cell for a period of time is actually itself a modern concept. It wasn't something typical Whatever your crime was, we worked out how many days, months, years you would be locked up, or something: that wasn't how things traditionally worked. And so I think restorative justice has a place in reforming our system, but albeit in a limited way.

VK

On the topic of prisons. In light of the many recent inadequacies of prisons in the UK and across the world, how would you envision the way forward for jailing systems?

TB

There's lots of problems with prisons. One of them is that when someone finds themselves in prison, typically it might not be their first time doing an offence. They might have done minor crimes beforehand or something a bit more serious. You know it both. You know have of support can be broken not just by the stigma of being an offender. But prisons are not in every town and every city. I'm not suggesting they should be, but to be imprisoned is often to be removed from people. That can have a healthy benefit for some, it can have a very negative effect on others and there's a problem of overcrowding in many prisons. I think the biggest problem of the many uses of prisons is there's a lack of resources in prisons to do something positive with offenders in their care. Typically prison governors, taking for example the UK, which I know best but I don't think is unique to the UK, typically there'll be next to no rehabilitation efforts made to offenders who are in the prison for six months or even a year or less, and the argument is that it takes a while to reform people with the limited services that they can provide. Going into prison is one of the most disruptive things you can do to somebody, one of the most stressful things you can do to someone, and there'll be a lot of people listening who will think well, that's exactly the point! That's why. That's why we put people in prison. It should be that way. You know, someone's done something absolutely terrible and they need to get the smelling salts. They need to wake up, they need to pay their price, and so on and so forth. So I'm not arguing anything against that view, but the president, governors that I've spoken to have said that it takes a while with their limited resources to get somewhere with folks, and they can see better results with people if they have more time to work with them, and so the folks who will get the help will be the folks in a mid-range position. Folks who are in prison for more than a year or a couple of years will get a lot of benefits insofar as there's any to be found, whereas those who are not there for very long or the lifers are just in a different category.

Another problem with the prisons is the probation service. A part of being punished is being behind bars but part of it is the terms of release. So typically, you're sentenced, and the rules are you serve half that sentence behind bars but then you serve the rest on release, and if you're bad on your release you might be readmitted to prison. But there's been a woeful inadequacy on probation services. So you imagine someone's in jail, in prison. They're in prison for months, they're in prison for a year or two. They don't have a job, they have nowhere, nowhere to live, they've not been able to earn anything. A lot of people say they shouldn't be able to earn or have things and so on and so forth. So they come out of prison with next to nothing other than the clothes on their back. But if someone has paid their price to back to society for their crime, in that view, well, they've done that, so now they're back. And if they've got no money and nowhere to go and they’ve had no help and there's no support of any kind, what happens? They're homeless and need to survive. Perhaps they go back to stealing and other types of criminal behaviour. And having a support mechanism of getting people some shelter, helping people find opportunities is really important- I’m not suggesting that there shouldn't be limited opportunities, but just getting something to help people get their feet back on the ground. Lippke, recently retired at Indiana University, great legal philosopher and retributivist, thinks that retributivists need to be worried about probation services, and that it goes against retribution and giving people what they deserve If you have folks who we know will be reoffending not because of any moral failure on their own part, but because of the conditions they're placed in by a malignant system designed to help facilitate people failing. So I think there's a lot of problems with prison reform. This isn't being cuddly and soft. I'm not suggesting they need to all have Disney Plus or a playstation 5 for everybody or whatever is the latest gadget- I’m not suggesting anything of the kind.

I don't think reform or rehabilitation necessarily requires any of that. But people have got there for a reason. It's important to understand what those reasons are and addressing those causal factors. Because if those causal factors are not addressed in prison, and often they are not, then people will be reoffending. Everyone should be very firm on the need to help facilitate reform, as the current system clearly doesn't work properly and as well as it should.

VK

Of course, we've brought up the idea of the varying approaches to punishment. Building on that but in a more political sense, how do you think political ideologies and power dynamics have an impact on the forms of punishment that exist within a state?

TB

I think it's got a huge role to play and often a very negative role to play. People see crime in different ways, they see crimes as moral wrongs, and that's easy to do when you think about. You know, tell me the first crime that comes to your mind- murder, theft and things like that will be among the top three or five that people come up with. They won't often think about traffic offences like overstaying their parking space or being on a yellow line, driving the wrong way on a one-way street. They won't think about drug possession offences all the time. And it's controversial as to whether or not, say, prostitution or sex work should be criminalised or not, since for some people find it's obviously criminal, and others think it obviously shouldn't criminal. So there's a debate that people have about that kind of stuff. My view is that it's not obvious that any one moral theory does capture all the crimes that we want to exist. I would think it is obvious that some crimes might be thought as more or less universally criminalised, universally seen as wrongs. Whether you're a Kantian philosopher, consequentialist, Kant and Bentham have different arguments as to why murder is bad and how it should be punished, but both come to the same view that it should be punished and come to a similar conclusion on what the punishment should be, though from very different angles. So I don't think there's any one moral theory that explains why these things work, although there are some crimes you can say are mala in se: the fact that they are wrong in themselves is the typical way of thinking about it. And there are other things perhaps, like the traffic offences, maybe drug offences and sex work that might be considered mala prohibita: it's wrongful because it's prohibited, but not wrongful as part of any larger moral theory.

And so in my own work I've said, because it's difficult to find any one moral theory that will justify all the things that we want to find criminal, and even if we could find that one moral theory, it's not clear that everyone ought to have that one moral theory, given that our communities are diverse places, I think we should instead think about this in terms of rights when someone does a crime. What's going on is that they're violating my right, my right to have property, my right to life, my right to do this, my right to do that and some of these rights are more central, have greater importance than others, and we can think about that- my right to life- in more proportion than we do other things and so I think about using a different kind of framework for this where the goal of punishment is about the maintenance and protection of rights. And so then, if you have a system that led to crime going up on my rights-based view, that's bad. Is it consequentialist? Well, I guess it is, because it's important to me that rights are protected, but doing the work is that rights are protected and maintained. One of the readings that I recommend to everybody to read about, and the best way of answering your question, is a piece by Dan Cahan at Yale Law School that he wrote when he was in Chicago, called the Secret Ambition of Deterrence, and the argument was something like this: he says if you ask people who are for the death penalty why they're for it, they say they're for it because they believe it deters. But if you ask the same people that, if evidence came to light conclusively that it did not deter, would you change your mind? They say no, they wouldn't. And the reason is because they believe people just deserve to die for being a murderer. If you ask people who are against death penalty what their number one reason is, they say the number one reason is that it does not deter. If you say to them well, you know what, if it conclusively has shown that it does deter people if you did execute murderers, would you change your mind? To that, they would probably say no because they just don't think that's how you should treat people- there's other ways of doing things. It’s almost irrelevant if you know that people are deterred or not. Everyone in the majority on both sides aren’t being led by the evidence, they're actually being led by their values. If you want to win people over to where you are on the death penalty, or other issues- and he's more recently talked about climate change issues- you want to win people over. It's actually not so much about the evidence, it's about making people switch on, and seeing how their values align.

VK

Putting this into context and considering other factors like international law, how can we balance the principle of state sovereignty with the need to maintain human rights in politically and legally divergent states?

TB

Many people believe that there's this one view of justice that all should fulfil, there's one view of human rights, there's one view of freedom and that's the high standard we should hold everyone to, and some argue for a world government,- that it should be some kind of universal thing and there should no real difference from one place to the next versus those who might be called, I don't like nationalists or ethical nationalists, but I'll run with self-determination. So everyone's for universal human rights, but also everyone seems to be for principles of self-determination- that there's more than one way to do democracy: for example, is a presidential system the only system? Or is the presidential system the American one? Is it the French one? Is it another model? France has got a prime minister and a president, America doesn't. Ireland does have a president. There's a different model with a Taoiseach. What's the best way of doing things? A strong version of cosmopolitanism would argue that there is essentially one way that is better than other ways and that we should all follow that. The self-determination people think it should be left to communities to decide for themselves, albeit within certain limits.

I’d be more with the self-determination people, I think I'm I'm a multicultural supporter, where there are principles that glue us together. There is, of course, a limit to where you can go: for example, there would be no respect for a culture of psychopaths. Not all cultural things are okay, so there are limits there. But we live in a world of pluralism and difference and we seem to do more injustice in denying it and trying to stamp one view on all, than letting different things gain expression at the same time. How some places are organised might look oppressive to others: when I speak to Americans and tell them that I pay a TV license fee, which is very common in many countries around the world, they find that oppressive. When I say that we have nationalised a health service, which I think is magnificent and a real crowning achievement of the UK, even though there's a lot of issues about its resourcing and management and so on. But I know many Americans who think that's utterly contrary to freedom. So I'm wary. So, on the one hand, of course we have international standards, of course we have international law. Of course, it's hugely important and long may be the case. At the same time, I'm very wary about where lines are drawn and how they're applied. I'm not on the fence.

I have my views on different things, but where to go with these things is very difficult. Should we all force North Korea to sign up to different human rights treaties and so on and so forth? Well, I suppose we ought to address North Korea and other countries that aren't yet signed up to different international obligations, but I think it's even more important that they follow them, that they do them. And what to do with a state where the elite or even the whole population just aren't behind certain things? Just thinking about it purely in terms of law, of just signing them up or making them sign up, or forcing sanctions. I think when you're dealing with the legal aspect of it, in a way, it's almost too late and really what we need to do is win hearts and minds.

A big part of getting international standards approved by more places isn't just about signing bits of paper. It's about making people believe in that and reminding ourselves why we did it in the first place. It's not obvious to everyone in the UK at the moment, including the Conservative government, why we're a signatory to the European Convention on Human Rights that Conservative lawyers helped lead in writing. You know, I know Robert Buckland who, on record, noted that it's a great achievement of the Conservative Party and Conservative politicians in the European Convention. It's important to remind ourselves why we are, part of what we are. We should not take for granted that once things are signed, that's it not just done and dusted, and that this need of winning hearts and minds is a hugely important thing and it's ongoing. Wherever we are now on, whatever we're doing, inevitably things will change as new problems and new issues and new concerns arise, and the treaties of today will give way to the treaties of tomorrow. And so should we enforce things on people? Well, it will be necessary in lots of cases to do so. But as a general principle, I think soft power has a much bigger, much more important role to play than many people give it time for, and I think and this is another area where I think the interest of law moves into other skills of negotiation and arbitration and other things like that.

VK

So would you say that any legal or political system is only really ratified once the public actually supports it?

TB

I mean I have the philosophical view of being unashamedly pro-democracy but at the same time, the history of democratic thought is a history of being anti-majoritarianism for its own sake. As Rousseau says, we should follow the general will, not the common will, and the distinction is a very fine line to cut. I do think that it's important that population is behind the things that a government does and that the power of the people is often what gives the justification, and more than the moral authority, to a government to govern. Does it mean that every single decision made needs to meet some majority poll taken by some private company? Well, no, I don't think it works like that. But there's only a minority that think democracy should be a direct democracy, where people are sat at the television sets watching debates all day long rather than doing things they enjoy or things that are economically productive, so they can constantly say yes, no, yes, no, yes, no to different debates. James Fishkin has done work along those kinds of a line, but I don't think that. I do think think popular sovereignty requires popular support broadly, absolutely so.

VK

Finishing with perhaps one of the most important questions in penology- under what circumstances, if any, do you believe that capital punishment or the death penalty is justifiable?

TB

Well, for me this is a very big topic and there's a lot to it. So there's issues regarding things such as whether it’s ever right to kill another person, and I think that of course there are times when that’s true. Some reasons that come to mind would be that, if you're in an immediate threat of danger, then of course you do or are able to. But what if you're not?

I've broadly been opposed to the use of the death penalty and my view has been that it's problematic on many grounds. One of those grounds, well-trodden, is on deterrence: issues of deterrent effects are unproven at best, or disproven. On the other side, there's been evidence that some have found of a brutalisation effect, that murder rates in US states can be found to go up after state executions, and the idea here is that when the state says it's okay to kill, that can diminish the value of life and and so on and so forth. These arguments that I'm using are not religious, although I've got a lot of sympathy for those who make those arguments. I've also argued in a couple of papers, including one that was cited by my home state of Connecticut. The Connecticut Supreme Court, in one of the crowning achievements of my career, cites towards the end, twice I think, a piece I did on why retributivists should be opposed to capital punishment on the grounds that desert is essential to the review. But knowing with sufficient certainty that desert has been achieved is problematic. We know that no matter how unanimous the jury, we know no matter how certain we are that someone might have been guilty at trial, no matter how futile their three appeals might be, that there are scientific advancements and DNA testings meaning that someone could be found innocent and it's happened dozens of times. And so that then puts a big question mark over issues of desert, and for that reason even retributivists who think that in principle, murderers do deserve death, should not be executed on the grounds that there's no remedy to getting it wrong and so therefore it should not be done. I'm often dealing with normal cases of thinking about the issues and so on and so forth, but to exceptional cases allow for exceptional measures. So I wouldn't necessarily say that I would be absolutely abolitionist in every case. I suppose in principle I'm open to being convinced otherwise and I've not always been against the death penalty, but I am now, and I have been for some decades. So at the moment I would say that, and that is why.

VK

That’s a really interesting line of thought, and to conclude, I’d agree that the law is undoubtedly something based around integrity. So, as you said, if we were to get it wrong, there is no remedy and that irrevocably damages the reputation and status of our penal systems, and that's just not something we should go about risking.

Editor's note

In light of the many recent issues with prison systems, the continual debate on capital punishment, alongside the various topics of discussion aroused from an increasingly tense global political environment, Professor Thom Brooks joins us, drawing on his expertise in law, government and the theories of punishment to share some unique, remarkable insights.

The following text has been transcribed from the original discussion: