Better than they deserve
this rough [proportionality] scale, there is a risk of either confusing common morality or flouting it and bringing the law into contempt.’ 10
This critique correctly identifies the risk to public trust posed by sentencing disparity. However, it incorrectly assumes that all forms of disproportionality are arbitrary, failing to distinguish between random inconsistency and a rational, evidence-based approach to achieving public safety. While uniformity is a clear utilitarian good, evidenced by research showcasing how people are more likely to obey the law if they perceive it and its processes to be fair, 11 elevating proportionality to an absolute principle can inhibit the more crucial goals of efficient resource allocation and crime prevention. Therefore, the very nature of a forward-looking system requires a degree of ‘disproportionate’ flexibility that rigid retributivism forbids. To illustrate this, reconsider the hypothetical case: two first- time offenders who have committed identical crimes in the same scenario. However, while their culpability and crime are symmetrical, one shows genuine remorse and is highly amenable to rehabilitation. At the same time, the other has a background of criminal association and is assessed as a high risk of reoffending. Treating offenders ‘fairly’ – focused solely on the culpability of the past act – would demand identical sentences. Treating offenders ‘better’ than they deserve would recognize that this is a waste of finite resources. It would encourage a less severe sanction for the low-risk offender, aligning with the principle of parsimony, which prefers the ‘least severe alternative that will achieve the purposes of the sentence’. 12 According to Frase, the principle of parsimony recognizes that severe penalties are expensive and usually harmful to offenders and that the crime-control benefits of such penalties are uncertain and often quite limited. 13 Thus, more ‘lenient’ sentences are needed. This is not an arbitrary disparity; it is a rational, evidence-based allocation of resources that aligns with prioritizing disproportionate but practical treatment over a uniform but harsh one that yields a rigid conception of the law. Secondly, the pragmatic superiority of treating offenders ‘better than they deserve’ extends beyond individual sentencing discretion to the very structure of substantive law, particularly where rigid mandatory sentences create profound injustice. A purely ‘deserts-based’ model focused on the harm caused can lead to narrow laws that conflate morally distinct cases, leading to injustice and disutility. As noted by Jonathan Herring, this forces courts to pass the same sentence on offenders whose culpability is vastly different. 14 Take the UK laws on homicide, focusing on murder which carries an automatic life imprisonment. The actus reus of murder is causing the death of another person, while the mens rea is an intention to cause death or grievous bodily harm. Following these parameters, certain offenders are convicted of ‘murder’ and are subjected to this rigid punishment when they should not be receiving life sentences. This tension was powerfully acknowledged by Lord Hailsham, who contrasted the ‘brutal, cynical and repeated offences of the so-called Moors murders’ to the ‘almost venial, if objectively immoral, ‘mercy killings’ of a beloved partner’, 15 both of which would be classified as
10 Hart, H. (2015) ‘Punishment and Responsibility: Essays in the Philosophy of Law.’ Philarchive.org. 2015. https://philarchive.org/rec/HARPAR-4. 11 Tyler, T. (2006) Why People Obey the Law . Princeton. http://www.jstor.org/stable/j.ctv1j66769.
12 See note 3. 13 See note 3. 14 Herring, J. (2020) Great Debates in Criminal Law. London. 15 R v Howe [1987] 2 WLR 568, 581.
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