‘Use every man after his desert, and who should ‘scape whipping?’ Should the law treat offenders better than they deserve?
Alex Z
Shakespeare’s Hamlet poses the question, ‘Use every man after his desert, and who should ‘scape whipping?’, cutting to the heart of the timeless debate over criminal justice. It forces a confrontation between a rigid, yet consistent, application of justice and the more nuanced realities of criminal cases, human fallibility, and alternative aims. While what an offender truly ‘deserves’ is an inherently subjective judgement, for this essay, the principle of retribution will be used as the baseline for an offender’s deserved sentence. Retribution serves as the logical starting point for this debate due to its historical foundation in ancient legal codes and religious texts, 1 reflecting the powerful human intuition that criminal justice is, at its core, a matter of holding offenders accountable. This perspective, most powerfully articulated by Immanuel Kant’s ‘just deserts’ model, entails that punishment should be strictly proportional to an offender’s ‘desert’ – a measure of their culpability and the harm they have caused. 2 For this argument, treating ‘offenders better than they deserve’ refers not to an arbitrary act of mercy or leniency, but to a principled departure from the retributive baseline. This refers to any sentence less severe than the ‘just deserts’ model would demand, a deviation made to serve goals like rehabilitation or safeguarding human dignity. The central question is therefore not whether offenders should be excused, but whether the law should look beyond the strict logic of retribution to embrace these broader aims. To this end, it will be submitted that the law should treat offenders better than they deserve for three primary reasons: (i) that utilitarian priorities are pragmatically superior in reducing recidivism; (ii) that it enables more legal discretion, and (iii) that a commitment to human dignity is a moral necessity to safeguard against irreversible miscarriages of justice. Finally, it will be argued (iv) that these forward-looking principles can be balanced with the need for proportional punishment through the coherent, hybrid legal framework of limiting retributivism. Firstly, from a pragmatic utilitarian perspective, treating offenders better than they deserve yields the greatest possible outcomes for society. A utilitarian framework for sentencing focuses on using criminal penalties to prevent or lessen the seriousness of future acts by the offender being sentenced and/or by other would-be offenders. 3 While not being purely utilitarian, the Norwegian justice model most closely encompasses these practical aims in its criminal sentencing, which prioritizes rehabilitation. Their prison system uses two core principles, ‘normalization’ (prison life should resemble outside life) and ‘dynamic security’ (which requires prison officers to build trustworthy
1 Walen, A. (2014) ‘Retributive Justice.’ Available at https://plato.stanford.edu/archives/win2020/entries/justice-retributive/. 2 Ibid. 3 Frase, R. (2005) ‘Punishment Purposes.’ Stanford Law Review 58.1: 67–83. http://www.jstor.org/stable/40040252.
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