Benefit of Idiocy

'No way bro almost killed someone’

A group of teenage boys gang rape two girls on two separate occasions, film the crimes and laugh about doing it. As a punishment, they are condemned to community service, with Mr Justice Nicholas Rowland explaining at Southampton Crown Court last month that ‘I should avoid criminalising these children unnecessarily and understand the effects of their behaviour and support their reintegration into society.’

The decision did not go down well with the public, many of whom have grown restless at court decisions, and struggle to understand sentencing guidelines which seem alien to natural justice.

The judge has form; in 2023 he handed out a suspended sentence to a paedophile found with the most serious grade of child abuse images, despite five previous convictions. As it is, the offender failed to abide by the conditions of his suspended sentence and went to jail anyway. Most people would regard unpaid work as a small price to pay to avoid prison, but many criminals are not future orientated enough to see things that way.

In the more recent case, the judge chose to be lenient because the two rapists were not only young, but too stupid to understand what they had done. This is not unusual – many vicious and violent criminals escape serious punishment because the law sees low intelligence as mitigation.

Indeed, it’s curious that two factors which now routinely lead to lower sentences – or, in the case of the teenage rapists, no punishment at all – are arguably good reasons to keep offenders in for much longer, since both youth and stupidity are suggestive of a higher risk of reoffending.

Take the case of the teenage boy who last year threw a 5-kilo sofa off a balcony in the Westfield shopping centre, his lark filmed by a friend who posted it on Snapchat with the caption ‘No way bro almost killed someone’ and ‘Nahhh’ followed by laughing emojis.

During the court proceedings, the defence lawyer for the boy who filmed the lark said that a psychiatric report had found her client to have low levels of maturity, leaving him particularly susceptible to peer pressure, and that he had ‘some significant learning needs’. Yes, I think you proved that.

Perhaps he hasn’t won first prize in the genetic lottery raffle, but if someone is so stupid that they cannot foresee the consequences of a sofa landing on a person beneath them, is that not an argument for keeping them away from the public?

Last June, an innocent man called Kamran Aman was murdered in a racist attack by two teenage lowlifes who showed no remorse for the horrendous and unprovoked killing. As well as a chaotic home life and history of substance abuse, one mitigating factor put forward by the defence was that one of the killers was of ‘exceptionally low’ intelligence and had ‘limited capacity to consider the consequences’ of his actions. Yet the two murderers will be only 33 and 30 upon release, plenty of time for a renewed and rich criminal career, and indeed the sentences were subsequently sent to the court of appeal for being too lenient. We await their ruling.

It’s not just in Britain. In the Netherlands, a man called ‘Arnold O’ murdered his girlfriend in a fit of jealousy over the attention she gave their baby, stabbing her 258 times and even filming her bleeding to death; afterwards he took seflies with the baby covered in his mother’s blood. Despite this, and previous convictions for beating up his girlfriend - a predictable warning sign of femicide - he received five years, with subsequent psychiatric monitoring. The judge made the ruling on grounds of diminished responsibility because of psychosis, personality disorders and ‘limited cognitive capabilities’. Again, one wonder, is that not a reason to keep him locked up forever?

In some countries, like Norway, low mental capacity has been a mitigating factor since the 19th century. Diminished responsibility was also established in Scottish case law as far back as 1867, when murder charges were downgraded in a case due to a ‘weakness of mind’ in the accused. Diminished responsibility is usually applied to psychological disorders such as schizophrenia or PTSD, but it has increasingly come to encompass low intelligence too.

In the US, possession of an IQ below 70 - what used to be called ‘mental retardation’ - has allowed convicted killers to escape the death penalty since 2002, the court ruling that it went against the Eighth Amendment’s ban on cruel and unusual punishment. In England, the Mental Capacity Act of 1983 laid the foundation of low IQ in affecting an individual’s culpability, and in 2019 the Sentencing Council expanded this explanation of mitigating factors. Curiously, the increasing reliance on IQ came as IQ tests themselves were being dismissed by the establishment for reasons of political correctness.

What makes this odd is that a factor considered grounds for diminished responsibility is also a risk factor for criminal behaviour. Low IQ and low impulse control are among the two traits most associated with criminality (and they correlate). Convicted criminals have, on average, 10 point lower IQs than non-criminal siblings, and the average IQ of prisoners in Britain is around 87, 13 points below the national average; if we accept low intelligence as mitigation, then we accept most crime.

The contradiction exposes the basic dispute over the primary purpose of prison. Is it to punish, deter, rehabilitate or protect the public? If it is to punish, then all the offender’s disadvantages should be taken into account. If it is the protect the public, then many of those same disadvantages might be regarded as further reason to keep them inside. One can support the case for incapacitation as the justice system’s primary role, and also believe that prisons should be as humane and spacious as possible, because many criminals have limited ability to control their own behaviour.

The famous line from West Side Story, ‘I’m depraved on account I’m deprived’, has much truth to it, since most prisoners have disadvantages that do to some degree mitigate their crimes. It is not just the troubled upbringings so commonly recounted in courts but, as Sam Ashworth-Hayes writes, the fact that ‘roughly half of those in prison in Britain may have suffered a traumatic brain injury’, that the majority have issues with drug or alcohol abuse, and around half some form of mental disorder. A large number also have difficulty discounting the future, ‘prioritising immediate reward over future costs’, a disadvantageous trait that is associated with low intelligence.

Many criminals find it far harder to control their impulses, and a great deal of that disadvantage is simply genetic. They’ve been given a bad hand in life - but allowing this as mitigation puts the general public at greater risk.

In The Pimlico Journal, Langley Curtis wrote about how most of the mitigating factors used in court are also risk factors for reoffending. Citing the case of Tyrell Gomez, who in December 2024 was sentenced to 4 years’ imprisonment for wounding with intent, Curtis writes that here ‘a Crown Court judge treated ADHD, anxiety and depression as mitigation for an offender with fourteen convictions for twenty-two offences, including a previous sentence for GBH with intent.’ The perpetrator had attacked his girlfriend with a knife and attempted to strangle her, having breached a restraining order resulting from a clear pattern of escalating domestic violence.

‘An offender with low impulse control, poor emotional regulation, a personality disorder, or a cognitive profile that impairs their capacity to reason about consequences is — by the very characteristics the framework treats as mitigating — less likely to be deterred by punishment, less amenable to rehabilitation, and more likely to reoffend. If sentencing is supposed to protect the public, shouldn’t these characteristics push the sentence up rather than down?’

Whereas numerous acts of Parliament list the different purposes of sentencing -punishment, crime reduction, rehabilitation, reparation and public protection - Curtis describes the last as ‘the Cinderella of this framework: officially invited, consistently side-lined.’

In the case of Mr Justice Nicholas Rowland and the teenage rapists with ‘low IQs, ADHD, anxiety, and limited understanding of consent’, the judge told them: ‘I have to think how likely you are to do serious things again, and I need to make sure you do not do serious things again in the future.’

Yet, as Curtis writes, ‘He then sent them home. The characteristics he treated as grounds for leniency are precisely the characteristics any sensible criminologist would identify as predictors of serious reoffending.’ If the attackers really are too stupid to understand that rape is wrong, the state has a moral obligation to lock them up indefinitely.

Stupidity is one risk factor; youth is another. The younger that people start their criminal careers, the more prolific they tend to be; juvenile offenders go on to commit a huge amount of crime, and the number one risk factor for reoffending in a violent criminal is whether they started young. In one study, 91 percent of those who were convicted between the ages of 10 and 13 were later convicted again, with many confessing to hundreds of unsolved crimes.

This is especially true of murderers who kill early, who are far more likely to kill again even compared to other murderers, between 600 and 800 times more likely to commit another murder compared to the general population. A Dutch study found that young murderers went on to have a homicide rate 3,592 times that of the general population. The remorseless boys who ended the life of Kamran Aman will be a huge risk upon release, still well within the age range when men commit most murders.

People are reluctant to support the incapacitation of teenagers because they fear it entails ‘giving up’ on them, unaware that their expected life outcomes are by this point extremely dark either way. I also suspect that many are influenced by fictional accounts of juvenile crime, which tend to involve youthful miscreants like those portrayed in Sleepers. Sent to a brutal and abusive young offenders’ facility, two of them turn out to be upstanding members of the community, while two are so traumatised by their time in jail that their lives go off the rails (but are essentially good guys). In reality, offenders who begin their criminal careers at an early age tend to be exceptionally dangerous. If a boy commits two rapes before the age of 15, there is very little chance of ‘reintegration into society’ and he remains a danger to the public; instead the legal system too often writes off early-life crime as some youthful error rather than a signal for the state to incapacitate them long-term.

Sleepers

In the most extreme example of this youth discount, Scotland has instituted a system of reduced sentences for everyone under the age of 25, a sort of young person’s railcard but for crime. Ignoring the evidence of neuroscientists about brain maturity and the widespread literature about long-term offending risks, the Scottish Sentencing Council makes rehabilitation ‘the primary consideration’.

Although David Lammy wants to initiate something similar south of the border, England already has guidelines advising shorter jail terms for violent offenders who haven’t reached full ‘maturity’. Only last week, Chas Corrigan was sentenced for the unprovoked murder of Mohammed Algasim, a 20-year-old Saudi student in Cambridge. Despite the horrific nature of the crime, and the tragedy of a decent young man losing his life, the judge followed sentencing guidelines by reducing his term because he was ‘only’ 21.

Society naturally offers some leeway for the follies of youth; young men do stupid things and making mistakes is often the only way they learn to grow up. But this does not extend to murder and rape. Such a system not only rubs against all ideas of natural justice but also reduces the state’s primary purpose: protecting the public by incapacitating dangerous men.

Instead of judging perpetrators by their potential danger, sentencing guidelines seem to create a perverse form of justice based on equalising punishment, taking into account not only a criminal’s deprived childhood but their deprived genetics. It’s an odd system, putting public safety considerations last; it also, curiously, goes against the historic norm of the English legal system, which treated a lack of intelligence - or at least, education - as an aggravating factor.

‘Benefit of Clergy’ was for centuries the system by which churchmen were tried in religious rather than state courts. Although a privilege fiercely protected by the Church, and the cause of Henry II’s dispute with Thomas Beckett, most of the wrongdoers who claimed Benefit of Clergy weren’t even priests. A cleric could include anyone in Minor Orders, such as clerks, doctors, lawyers and almost any literate person with some position in the church, many of which were part-time or semi-official.

By the end of the 13th century there were some 40,000 ‘ordained’ men in England, one in 25 of the adult male population, and detailed studies suggest that about three-quarters of people who claimed Benefit of Clergy weren’t actually clerics, but literate professionals. This right ensured trial by church courts which were invariably less harsh, often entailing a fine for something which the secular courts might hang you for.

Benefit of Clergy evolved in such a way that eventually anyone able to show proof of literacy could use it to reduce their punishment, and even as late as 1613 it cropped up when two men were convicted of burgling the Earl of Sussex’s house. The judge passed down his sentence: ‘the said Paul reads, to be branded; the said William does not read, to be hanged’.

Fifteen years earlier the playwright Ben Jonson had used the technicality to escape serious punishment after killing a man in a duel in Hoxton. The part of the Bible that people were expected to recite to prove their literacy – Psalm 51 – became known as ‘the neck verse’ because it would save you from the noose. Yet it was now on the way out, and by the 18th century some crimes were ‘non-clergyable’, among them rape and highway robbery, and the technicality was finally abolished in 1827.

Crucially, however, Benefit of Clergy could only be used once - repeat offenders faced the hangman like everyone else. While it was obviously an unjust system, especially to the Williams of this world who were unfortunate enough not to read, the same can be said of our modern-day Reverse Benefit of Clergy, the Benefit of Idiocy.