Magistrates aren't soft, but a spell behind bars won't solve the problems of young offenders I see.
The lawlessness seen on the streets of London and other English cities appears to have come as a shock to politicians. It will have come as no surprise to lay magistrates sitting in the youth courts. I know, because twice a month I take time off from charting the global financial crisis to sit as a justice of the peace.
In my experience, stretching back almost 20 years, the young offenders who come up before the beak fall into two broad categories. A minority turn up neatly dressed and with both parents in tow. They are still in full-time education, have the prospect of university and a decent career, and tend to be accused of relatively petty offences: a bit of drug-dealing perhaps. The parents hate being in court and the young offender knows it. They feel burning shame for the humiliation they are heaping on their mum and dad. It is often the first time they have appeared in court and they are scared.
In the other camp, there are those offenders who turn up late offering a litany of lame excuses. Before the case can begin, they have to be told to take their hands out of their pockets, turn off their mobile phones and stop chewing gum. Only rarely do they turn up with both parents: usually it is the mother, but quite often they are on their own. When magistrates retire to read the pre-sentence report, they can usually have a good guess at the contents: learning difficulties, excluded from full-time education, a history of physical and sometimes sexual abuse, living in a household dependent on benefits.
Magistrates are encouraged to engage with young offenders but it is hard going. The teenagers are trained by their defence lawyers to express remorse but are not entirely convincing when they say they feel sorry for their victims. There's not much sign that they respect the court, let alone fear it.
From the bench, what magistrates see is a raging bundle of id impulses, the desire for immediate gratification untempered by a sense of guilt and with only an ill-formed notion of right and wrong. The temptation to bang them up and throw away the key is strong, and magistrates will no doubt be encouraged to do just that over the coming weeks. It is, though, not the way the courts work, and a good thing too.
Despite what the politicians think, magistrates are not routinely soft. Formal sentencing guidelines mean that the courts can't make it up as they go along. For every offence, there is a starting point for the bench's deliberations and a range of possible sentences after magistrates have looked at any aggravating or mitigating factors, and at the offender's record and character. Magistrates can choose a sentence outside these nationally agreed parameters but they have to explain in open court why they are doing so. If they want to send someone to prison or order someone to do unpaid work, they first need to get a report from the probation service or, in the case of someone under 18, from a youth offending team.
It's absolutely right that this should be the case, since most magistrates are amateurs who rely on experience, common sense and professional back-up to come to what we hope is the right decision. It's a curious system, peculiarly British in its way, but it works.
Magistrates will not need the exhortation of politicians to get tough with the looters. In many cases, JPs will look at their guidelines and decide that the aggravating feature – the break down in public order – means their powers of sentence are insufficient. The maximum jail term they can hand out for a single offence is six months, reduced by up to a third if the offender pleads guilty. Only half a prison sentence is actually served behind bars: the rest under licence back in the community. Those caught red-handed with flat-screen TVs or designer trainers can expect to find themselves up before a judge in the crown court, with a harsher sentence as a result.
Yet we are kidding ourselves if we imagine that a spell under lock and key, even when necessary and richly deserved, solves deep-seated problems of parenting, schooling, poverty and abuse. There are times when magistrates feel a deep sense of sadness when they read a pre-sentence report in the privacy of their retiring room, which is why they see their task as both to punish and to rehabilitate. That seems to me the right approach. I have not heard of a better one.