New Labour Lives: Tony Blair is Still Gone but his Instinct to Govern through Crime is Back

Sometimes legal academics can seem like prophets (or just very lucky). Just last evening we were hearing from Professor Nicola Lacey of All Souls College Oxford, for the University of Edinburgh, Centre for Law and Society Lecture, on the vulnerable status of the UK Coalition governments tentative plans to step down the long prison sentences built up by the previous New Labour government and the growing prison population those policies have bequeathed (long sentences are the gift that keeps on giving because each year a new cohort of people will be sentenced to them while their predecessors remain, leading to an escalation in the pace of growth). Nicky's point, in part, based on her book The Prisoners' Dilemma: Political Economy and Punishment in Contemporary Democracies (The Hamlyn Lectures), was that coalition politics affords a potential opening for penal moderation because the logic of competitive two party dominated electoral systems (typically with first past the post election rules)has been to ratchet up penal severity in a unidirectional bidding game about law and order. The Tory's and New Labour demonstrated that in the 1990s, when first John Major, and Michael Howard his Home Secretary, and then Tony Blair (himself shadow Home secretary before his election as Labour leader) bid up the rhetoric and ultimately the prison sentences on crime in an effort to prove the toughest on crime and the most loyal to citizens as crime victims.

In the era of the Conservative Liberal Democratic coalition that began one year ago, however, there were clear signs of penal moderation breaking out. Here the moving force was one Justice Secretary Kenneth Clark, a conservative former Home Secretary with a liberal skepticism about prison working all that well. Clark, who has combined some refreshingly candid appraisals of penal policy along with the politically dangerous tendency to speak off-the-cuff (and off the script) as well as to nod off at meetings of the Commons (where the frontbench is televised almost non-stop) not surprising in a man admittedly near retirement. Professor Lacey, pointing out the underlying tensions in the Conservative Party presented by Clark's penal moderation policies (which have more a constituency with the Lib Dems) was speculating on when Clark might have to be sacked to appease right of the Conservative back benchers or to perry a New Labour like thrust to the right on crime from Ed Miliband.

Today it happened. Clark hasn't quit yet, but the story has legs. A brief recap (here is the Guardian's coverage). First, a Justice consultation paper (an early version of a policy put out for commentary) was recently getting attention in the press, in which the government raised the possibility of increasing (it already exists) the discount given criminal defendants for pleading guilty at the earliest possible procedural point (thus saving the government the costs of prosecution and the victim the challenges of appearing as a witness in court) to as much as 50% (this would be a guideline for judges, but they would retain the sentencing discretion, as they do now). Second, the classic crime baiting tabloid press jumped on this in today's papers, some of them unabashedly reaching out for rape (the most evocative of violent crimes), proposing that the government wanted to cut rape sentences in half leading to sentences as little as 15 months (a slightly abbreviated statement of the policy). To head this off, Justice Secretary Clarke was placed on BBC Radio 5 Live, where instead of pouring oil on the waters, Clarke stirred them. First, trying to explain why most sentences would be much longer than 15 months because judges already apply guidelines to select sentences from between 30 months to life imprisonment that reflect the severity of the rape facts (violence, etc.), Clarke conflated the issue with the fact that some crimes that meet the statutory definition of rape, which in England and Wales includes under-age but consensual sex. He started using the phrase "serious rapes", implying that some rapes were not serious. Second, while at the station (on air?) Clarke was confronted with a weeping rape victim who declared his policy a "disaster". Clarke ended up returning to BBC no fewer than two more times attempting to clarify his position.

Little time had passed, however, before Prime Minister's Question Time afforded a chance for Labour leader Ed Miliband to demand the PM take a stand on Clarke's wording and also "sack him." More important, he went beyond criticizing the Justice Secretary's inept articulations with the underlying policy, underscoring that Labour is prepared to treat any walking back of prison sentences as a betrayal of victims (despite any evidence that long sentences make victims or potential victims better off). In short, New Labour is back.

Clearly this is a sign of desperation from a promising leader who had signaled his interest in rebalancing Labour's priorities and politics, but who has failed in recent regional and local elections where Labour made gains at expense of Lib Dems, except in Scotland where a party that has rejected governing through crime and was attacked for it by Scottish Labour, won big (as well as in the Alternative Vote referendum which he tepidly supported and which crashed and burned)