Read the following text, paying particular attention to the highlighted words.
If causing death is to be regarded as the most serious harm that can be inflicted, it would seem to follow that the most blameworthy form of homicide should result in the highest sentences imposed by the courts. Indeed, many systems of criminal law impose a mandatory sentence for murder (or whatever the highest form of homicide is called in that system). In some jurisdictions this is a mandatory sentence of death. In others, such as those in the United Kingdom, it is the mandatory sentence of life imprisonment. Why should this penalty be mandatory, and not at the discretion of the court as in other offences? One argument in favour of the mandatory sentence of life imprisonment is that it amounts to a symbolic indication of the unique heinousness of murder. It places the offender under the State's control, as it were, for the remainder of his or her life. This is often linked with a supposed denunciatory effect - the idea that the mandatory life sentence denounces murder as emphatically as possible - and with a supposed general deterrent effect, in declaring that there is no mitigation of sentence available for this crime. It might also be argued that the mandatory life sentence makes a substantial contribution to public safety.
None of these arguments is notably strong, let alone conclusive. The mandatory penalty does indeed serve to mark out murder from other crimes, but whether the definition of murder is refined to capture the worst killings, and only the worst killings, remains to be discussed below. Whether the life sentence is regarded as a sufficient denunciation in society depends on the public's perception of what life imprisonment means: if it is widely believed that it results in an average of nine years' imprisonment, the effect will be somewhat blunted. The same applies to the general deterrent argument: its effectiveness depends on whether the penalty for murder affects the calculations of potential killers at all, and, if it does, whether life imprisonment is seen as significantly more or less severe than the alternative of a long, fixed-term sentence. As for public protection, this depends on executive decisions with regard to release; it fails to take into account whether it is necessary for public protection to keep "lifers" in for so long.
For practical purposes, the culpable causing of another person's death may fairly be regarded as the most serious offence in the criminal calendar. There is an argument that treason is a more serious offence, since it strikes at the very foundations of the State and its social organizations, but treason is so rare that it is surely permissible to treat homicide as the most serious form of crime. The reason for this is not difficult to find: the harm caused by many other crimes is remediable to a degree, whereas the harm caused by homicide is absolutely irremediable. Even in crimes of violence which leave some permanent physical disfigurement or psychological effects, the victim retains his or her life and, therefore, the possibility of further pleasures and achievements, whereas death is final. This finality makes it proper to regard death as the most serious harm that may be inflicted on another, and to regard a person who chooses to inflict that harm as the most culpable of offenders, in the absence of some excuse or justification.
Although many deaths arise from natural causes, and many others from illnesses and diseases, each year sees a large number of deaths caused by "accidents", and also a number caused by acts or omissions which amount to some form of homicide in English law. for 1987 the statistics show that there were some 20,000 accidental deaths, of which some 7,000 occurred in the home, 6,000 at work, and 5,000 on the roads. By comparison, the number of deaths recorded as criminal homicide was 600, which includes all the murders and manslaughters. This figure is relatively small when compared with many American cities, but that is no cause for satisfaction. There are still awkward questions to be confronted. For example, are we satisfied that the 600 deaths recorded as homicide are in fact more culpable than all, or even most, of the deaths recorded as accidents? In other words, does English criminal law pick out the most heinous forms of killing as murders and manslaughters, or are the boundaries frozen by tradition? Another question is whether the criminal law ought not to be wider in its application to activities which carry some risk of causing death than in other spheres. Thus, even if it would be excessive to sweep large numbers of the deaths now recorded as "accidents" into the law of homicide, there may be sufficient justification for creating or enforcing offences designed to ensure safe conditions of work, safe goods, safe buildings, and so on. It was argued in Chapter 2 that the criminal law ought to spread its net wider where the potential harm is greater. It will be seen that English law does this up to a point, and in the process seems to accept social-defence arguments as reasons for departing from several of the principles set out in Chapter 3.
Now try the exercises. Exercise a
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