Criminal justice has always been a source of knotty problems. How to punish the guilty while sparing the innocent? Trial by ordeal was a neat solution: delegate the decision to God. In the Middle Ages, a suspect who insisted on their innocence might be asked to carry a piece of burning iron for a few paces. If the suspect’s hand was unharmed, God had pronounced them innocent. If God is benevolent, omnipotent and highly interventionist, this idea works. Otherwise this judicial ordeal punishes innocent and guilty alike, inflicting harm without sorting good from bad.
Suella Braverman, the UK’s home secretary, and her “dream” of deporting asylum seekers to Rwanda, is an eerie 21st-century echo of a medieval idea. In a way, the comparison is unfair to the medieval courts. Judicial ordeals really were designed to solve a policy problem, while the government’s Rwanda rhetoric is designed to deflect attention from strikes, NHS waiting lists and a stagnating economy.
But in other ways the comparison is apt. Deporting migrants to Rwanda, or similar deliberate cruelties such as separating parents from their children at the US-Mexican border, might well be expected to deter some attempts to enter the country, while those fleeing murderous regimes would come regardless.
Many people, myself included, draw the line at “deliberate cruelties”. But public policy is full of ordeal-like interventions: long waits, arduous paperwork and deliberate stigma are all common policy tools. The economist Richard Zeckhauser of Harvard defines ordeals as “burdens placed on individuals which yield no benefits to others” and argues that such burdens can sometimes be an effective way of ensuring scarce benefits are targeted only to worthy recipients.
But do these ordeals really select the most deserving? Carolyn Heinrich, professor of public policy at Vanderbilt University, has studied South Africa’s Child Support Grant, with a series of bureaucratic ordeals requiring bewildering paperwork and long waits. The families who struggle with these ordeals are those who face longer journeys to the benefits office, or have a limited grasp of bureaucratese.
Heinrich found that because of these arbitrary distinctions, many families received less support than they were entitled to. Most interruptions to benefit payments were errors, and the children in the affected families would become adolescents who were more likely to engage in crime, alcohol abuse or risky sexual behaviour. The ordeal harmed the innocent, undermined the goals of the support grant and seems unlikely to have saved public funds.
Some ordeals are the result of incompetence, such as badly designed forms, or underfunded public services. But others betray a misanthropic mindset in policymakers. If you are fearful of benefit scroungers who don’t wish to work, hordes of bogus asylum seekers, promiscuous teenagers and parents who can’t even be bothered to feed their children properly, then the tough love of an ordeal might seem like common sense.
Yet I wonder. Targeting in Social Programs: Avoiding Bad Bets, Removing Bad Apples, a 2006 book by Zeckhauser and Peter Schuck, explains that stigmatising unwed teenage mothers may be a useful ordeal: “Their irresponsible conduct . . . must be firmly condemned because of the immense harm that it will likely cause . . . if the stigma has the effect of reducing the number of other teenagers who have children out of wedlock, then the stigma will be socially salutary on balance…”
That’s a big “if”. In the UK, the teenage conception rate has plummeted from 42 conceptions per 1,000 women aged 15-17 in 2007, to 13 in 2020. (The number of abortions for women under 18 has fallen at a similar pace.) This is not because teenage motherhood is more stigmatised, but because official government policy was to “build an honest and open culture” and reduce unwanted pregnancies “by ensuring that people have access to the full range of contraception”. Rather than discouraging teenage pregnancy by making it a stigmatised ordeal, the policy assumed that well-informed teenagers given access to contraception would avoid pregnancy anyway.
A similar story can be told about jobseekers. A few years ago, the UK’s Behavioural Insights Team ran a controlled trial in job centres. The trial compared the old ordeal of demanding regular proof of past job-seeking activity with a new approach in which job centre staff helped jobseekers make a plan for the days ahead. Replacing the ordeal with some simple mentoring improved people’s chances of working again. Jobseekers, like teenagers, needed guidance, not sanctions.
It’s too much to expect politicians to abolish ordeals altogether, but we need to collect more data on whether they are having the intended effect. It’s one thing for an ordeal to be tough but effective — quite another to be wantonly cruel.
Even medieval ordeals may have been smarter than they looked. The economist Peter Leeson found that many ordeals exonerated the suspects, somehow miraculously unharmed by searing hot iron. How so? Leeson argues that the medieval ordeal filtered out the guilty: God-fearing criminals would rather confess than face the ordeal, so only the innocent would agree to endure it. Knowing this, the priests who administered the ordeals would secretly ensure the iron wasn’t hot enough to blister the skin. Medieval ordeals, then, really di
Written for and first published in the Financial Times on 31 March 2023.
My first children’s book, The Truth Detective is now available (not US or Canada yet – sorry).
d punish the guilty and spare the innocent. If only rich, civilised countries could make the same boast today.