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Scotland, the USA and the Lockerbie Bomber: An example of forwards and backwards perspective on punishment

Abdelbaset Ali al-Megrahi was originally convicted in 2001, when the court recommended he serve at least 20 years for the Lockerbie Bombing. He was released by Scottish authorities on 22nd August 2009 on compassionate grounds, as he has untreatable cancer and only months to live. I know little of the specific details of the case and don’t discuss here whether this decision is either morally or legally right or wrong. But this case demonstrates a difference between perceptions of punishment in Scotland and the USA, and illustrates the difference between forwards-looking and backwards-looking perspectives on what punishment is supposed to achieve. This might go some way to explaining why there is disagreement over whether it was right to release al-Megrahi on compassionate grounds.

The American authorities were disappointed by the Scottish decision. President Obama described the decision a ‘mistake‘ and the director of the FBI commented this made ‘a mockery of the rule of law‘. Victim’s families questioned why compassion should be shown to a man who had shown no such compassion to their loved ones. This perspective on the purpose of punishment is backwards or past facing and retributive: because of past actions this man was found guilty of these crimes and given this sentence. He must complete his sentence, and whether or how his circumstances change is irrelevant. State punishment on this view exists so that perpetrators of serious crimes will be severely punished because of, and in line with the seriousness of their past offences.

There is nothing wrong with this view, but it is different to the perception of punishment which appears to me to have been used by the Scottish Authorities. They have begun with a question: ‘this man is serving this sentence that he will not complete because he is suffering with terminal cancer. The sentence was appropriate at the time it was given, but does this new fact change things? Given where we find ourselves, how should we respond now?’. This is a forwards or future regarding view, starting from the present and asking how the criminal justice system can deliver the best consequences. State punishment exists here to arrive at a more desirable position in the future, perhaps lower crime rates or fewer serious offences.

I’m not arguing that one position is right and the other wrong, just that this demonstrates these two differing perspectives. Because the USA and the Scotland are starting from a different position on state punishment, what it’s for and how it works – one placing the emphasis on looking back to offences and sentences imposed in the past, and one emphasising what is best now, given how current actions may influence future outcomes – they cannot necessarily expect to arrive at the same conclusion. Perhaps it is unfair to describe the American perspective as retributivist. Perhaps a prisoner developing a terminal illness or being in very poor physical health is not relevant when considering how the criminal justice system can get to the best future consequences. But this seems at first glance to illustrate the difference between a retributivist and consequentialist position, and suggest why there is disagreement between Scottish and US authorities.

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