Better than they deserve
relationships with inmates). 4 By creating a safe and non-hostile environment, the inmates are equipped with the tools for positive change, resulting in Norway’s two-year recidivism rates being consistently at around 20%, one of global lowest globally. 5 This investment in an offender’s future thus serves the broad utilitarian principle of greatest outcome for all: society is made safer, the state is also less burdened, and the offenders are given a genuine opportunity to become productive citizens. Conversely, retributive models consider punishment of the guilty as an intrinsic good, distinct from any instrumental benefits it might yield. 6 These backwards-focused punitive systems often bear inverse, or criminogenic, effects, where the experience of incarceration entrenches criminal behaviour rather than correcting it. The United States exemplifies this systemic behaviour, where decades of retributive ‘tough on crime’ policies, such as the ‘three-strikes’ laws that mandate life sentences for third-time offenders, have contributed to one of the highest incarceration rates in the world as of 2016. 7 This policy is a utilitarian failure; a Bureau of Justice Statistics study found that 83% of released state prisoners across 30 states were arrested at least once during the 9 years following their release, revealing a costly and socially damaging cycle of crime. 8 This reinforces why the law should treat offenders ‘better than they deserve’ by highlighting that a focus on retribution is counterproductive to the practical goals of enhancing public safety and reducing the social and economic costs of crime. Yet it would be a narrow account to look solely at the positive aspects of a utilitarian framework and not examine the faults. This system, in prioritizing forward-looking goals, risks creating a new injustice through disproportionality and disparity. Typically, judges are required to make highly individualized and speculative assessments of an offender’s risk, treatability, and deterrability. As Frase notes, such highly discretionary determinations are ‘very difficult to make reliably and consistently’, 9 which inevitably leads to sentencing disparity, where two offenders have committed the same crime with the same level of culpability but can receive vastly different sentences based on a judge’s subjective prediction of their future behaviour. This undermines the core principle of equality before the law and risks eroding public trust and sacrifices consistency for speculative future gain. This disproportionality also diminishes the law’s desired norm-reinforcing messages while simultaneously reducing public respect for the criminal law and criminal justice systems. As legal philosopher H.L.A. Hart argued, this lack of proportionality is not a minor issue; if ‘the relative severity of penalties diverges sharply from 4 Pratt, J. (2007) ‘Scandinavian exceptionalism in an era of penal excess part I: the nature and roots of Scandinavian exceptionalism’, British Journal of Criminology 48: 119–37. https://api.semanticscholar.org/CorpusID:146688500. 5 Fazel, S. and A. Wolf. (2015) ‘A systematic review of criminal recidivism rates worldwide: current difficulties and recommendations for best practice.’ Plos One 10 (June 2015): 1–8. https://doi.org/10.1371/journal.pone.0130390. 6 Moore, M. (2010) ‘2 Closet Retributivism.’ In Placing Blame: A Theory of the Criminal Law . Oxford. 7 Nellis, A. (2021) ‘No end in sight: America’s enduring reliance on life imprisonment’, https://www.sentencingproject.org/app/uploads/2022/08/No-End-in-Sight-Americas-Enduring-Reliance-on- Life-Imprisonment.pdf. 8 Alper, M., M. Durose, and J. Markman. (2018) ‘Special Report 2018 update on prisoner recidivism: a 9-year follow-up period (2005-2014).’ U.S. Department of Justice, May 2018. https://bjs.ojp.gov/content/pub/pdf/18upr9yfup0514.pdf. 9 See note 3.
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