Deterrence - Hartley.

Don't blame the sweet and tender hooligan, hooligan 
Because he'll never, never, never, never, never, never do it again (not until the next time)...

The Smiths, Sweet and Tender Hooligan.

In this post, I want to look at the concept of deterrence in the disciplinary system, and I'm going to choose the recent decision dealing with Dylan Hartley as the example. He is, I should state, not the only example one could choose of late in the disciplinary systems, and most rugby fans could name several such; but he is the most recent, and one of the more clear-cut, and will serve neatly to illustrate the point.

Hartley is no stranger to the disciplinary hearing room. In the last five years, he has served a total of 36 weeks suspension - a full season's worth - including for gouging and biting. There have been other incidents which have been, to put it no stronger than this, on the borderline, such as THIS incident with Richie McCaw and THIS one with Ross Ford of Scotland in 2010, neither of which was cited. I dealt with his last ban before this in THIS post, where despite his record, Roger Morris of Wales gave him less than the minimum ban for biting. Heavy emphasis was laid in this hearing on how Hartley was a reformed and reforming character.

Alas for the better angels of our nature. Come the new season, and the Northampton-Ulster HEC game in Franklins Gardens in December, and Hartley was seen attacking his opposite number, Rory Best, and cited. You can see the incident HERE and HERE (my thanks again to Snedds for the use of his work). The person hearing the case was, again, Roger Morris. One might think that, having given him the bounce on the basis of his reformed character, that to see him in in front of him again so quickly would lead to an increased sentence as a deterrent.

One would think wrongly. Hartley got two weeks, the minimum, and you can read the decision HERE. In it, Mr. Morris states that the reputation of a man who has been found guilty of biting, of attacking a player on the ground, and of gouging two players in one game is "perhaps unfair".

Now, let us be blunt and state: that is just plain daft. But, so long as not irrational or unreasonable, decision makers can make daft decisions within their jurisdiction. But if the decision ignores past records or the history of an offender, if offenders are treated as if sinless each time, what does that do to deterrence?

Punishment, in any form of tribunal, has several functions: rehabilitative - to make the offender into a law-abiding person; punitive - punishment for the offence; and deterrent - to warn the offender and others not to commit that offence. Usually, rehabilitation is part of the reason why those who admit their offences and face up to the wrong-doing get a discount on the punishment part; it's a carrot to reform, with the stick of punishment and deterrence in the background.

As it happens, I have serious doubts that increased sentences are the most efficient of deterrents. Historically, the death penalty didn't work as such; under what was called the Bloody Code in Georgian Britain, there were literally hundreds of offences for which one could be hanged, but it had no effect on crime. Certainty of detection and punishment works much better (and it cannot be coincidence that the number of tip-tackles in this year's HEC have dropped off dramatically with the certainty of detection and punishment for this).

However, it does have to be said that there comes a point where rehabilitation fails - the offender keeps offending - and deterrence and punishment come into play. Part of the consideration there is keeping someone who is patently not going to stop offending against others out of circulation for the safety of others, and to deter the offender and others from doing it again. This is part of why those who committed tip-tackles were given such stiff sentences; the message wasn't getting through, so the sentences went up until it did and players were deterred from risking being done for a tip-tackle.

So, one has to ask what the position is here. Deterrence is a feature of the citing hearing; that is why record is to be considered. It is hard to say Hartley is reforming, when he has been cited twice in one year, despite his pledge to reform back in March. So, we are left with deterrence - and that is where this sentence, on a repeat offender signally fails. I hate the phrase "sends out a message" - if you want to send a message, use your 'phone and text - but when someone with a record such as Hartley's is told that his reputation is unfair, what incentive does he have to mend his ways, what fear of punishment in the future does he have - and since there is a victim of each offence, who will be on the receiving end of  foul play? 

Because he'll never do it again - not until the next time.