Justice Without Leniency: The Necessity of Proportionate Punishment

By: Sean Yin

Introduction 

There exists a renowned maxim in law that is commonly repeated in and out of courtrooms, and few others has received as much prevalent recognition as the reassurance that all accused will be presumed innocent until deemed otherwise during a formal trial.^[1] This, along with the promise that all accused will be provided with a lawyer if they are not able to by the state/country,^[2] are both examples of international laws passed to ensure a just criminal justice system by the United Nations. These laws not only highlight some of the most fundamental rights society has as humans, but also assure that no innocents wrongly suffer punishments, even at the expense of some criminals getting away with crime unpunished. These laws show the public that the legal system is fair to everyone, and more importantly, it reassures them in the capability of the international criminal justice system to not falsely incriminate. These laws are but one reason the justice system functions, but all other reasons all come down to two main points, the faith the general population shows for the law, and the law’s ability to fairly judge and incriminate, providing proportionate punishments. This being the fundamental reason that the legal system has stood for millennia, is only possible because the law did not spare the guilty, nor offer out lesser punishments to those who deserves it not. Thus, I argue in this essay that the law should not treat offenders better than they deserve through looking at the passage of time and its effect on the law, the importance of the law being strict and governing with an iron fist, and lastly, the law’s ability to provide a sense of closure and the retributive values it holds. 

Passage Through Time and its Effects on the Law 

To understand the significance of why the law shouldn’t treat offenders better deserved, one must first understand that the law is forever evolving, but also rigid to specific areas of time and location based on the decrees of the current ruler. In times of war, the law is very harsh and unforgiving, like how in the first world war, 17 British soldiers were shot with the sole crime being cowardice,^[3] one of whom was a teenage boy.^[4] However in times of peace, the law is much more lenient to those who are found guilty. Despite the two obviously contrasting, in neither case is the offender being treated “better” than they deserve. Although in direct comparison it seems the latter is being dealt with in a softer manner, it does not mean that certain criminals are treated better than they deserve, only that the law has become softer to adapt to a new era of living. 

The changing of law is very evident in all locations, and there exists many acts that once were legal which are now criminalized, including marital rape in the UK which became legal in 1736^[5] up until 1991,^[6] and racial discrimination in South Africa from 1948^[7] which was illegalized in 1996.^[8] This brings about one question, why does the law need to change? 

The answer to this question is the same as why the law should not treat offenders better than they deserve, because it needs the approval of the people. Acts like discrimination and domestic abuse were outlawed due to massive outrage from the population often led by a leader, ie Martin Luther King and Nelson Mandela, and to ensure the legal system would not be overrun and completely changed, adjustments had to have been made in order for it to survive. It may be questioned how this relates to the strictness of the law, and the answer is quite simple: the population had demanded change, and what good would the change be if it were not upheld? If someone guilty of domestic rape was let off easy, then how is that any different to when it was still legal?

The changes that occur in the law are only worth something if it is upheld with no leniency. Of course, there are special cases in which the offender was forced to commit the crime they were convicted for, but if that is the case the law will deal with them in a separate manner, as was with the case of Matthew Kilroy in 1765 America,^[9] who had his sentence reduced because he committed domestic abuse under the command of his superior, the master of his house. In modern day, there are also laws to ensure people aren't too harshly punished if the crime committed was accidental or unintentional. The biggest example is the difference between manslaughter and murder, in which accidental murder (manslaughter) is given a much lesser punishment. However, these are laws set in place as time changed and are not actually criminals being given a lighter sentence than they deserve. 

Because of the existence of laws to ensure the accused get reduced repercussions for accidental or forced crimes, it is argued that there is no reason to hand out lighter sentences to criminals who have committed the crime with full intent as it would mean the changes made to laws over time would be rendered pointless. Handing out softer sentences to criminals that deserve it not will only weaken people’s opinions of the justice system’s ability to enforce its laws. 

The Importance of an Equitable and Strict Criminal Justice System 

Renowned criminologist Cesare Beccaria argued that the most important way to keep the criminal justice system effective was to ensure that laws were swift, certain, public and clear. Beccaria believed that “The certainty of a small punishment makes a stronger impression than the fear of one more severe, if associated with hope of impunity.”^[10] This quote makes three things very clear: to succeed, the law must be 1) impartial 2) promulgated and 3) implacable. Beccaria was a man who valued fairness and justice, and he not only believed in the modern “innocent until proven guilty” but also that punishment should be proportionate to the crime as well as more importantly, that capital punishment and torture be avoided at all costs. Despite Beccaria’s outlooks on punishment seeming “soft,” he still made it very clear that no criminal should get away with crime, nor gain an easier punishment. 

The reasoning behind Beccaria’s beliefs on what the law should look like mirrors my own reasons for why the law should not treat offenders better than deserved. In order for the law to be regulated without or with minimal opposition, it needs to be respected but also feared. People cannot think they can get away with not following the law, but they must not also resent the law, for the aim of the law is not to rule by terror. Should there be a lenient system, criminals might abuse it and exploit its kindness, manipulating the system for their own gains to commit and get away with more crimes, the most infamous example being the “Son of Sam” trial of killer David Berkowitz, who abused the system by feigning demonic possession and hence pretending to be mad to escape the full responsibility of his 6 murders.^[11] Should people see that the law is forgiving and not punishing, it could also deter the strength and power the court possesses, slowly causing the population to lose fear of the system altogether. 

Beccaria’s argument was very simple, the law had to be impartial for it to be just and fair for everyone, it had to be promulgated so that everyone was aware of it and what the implications of breaking it were, and lastly, the law had to be implacable in order for criminals to not be able to manipulate it, or try and attempt to take an easy way out of breaking the law. Therefore logically, the law must not treat offenders better than they deserve as to do so would weaken the law itself. 

Importance of Closure and Retribution over Rehabilitation

The earliest form of traceable legal codes date back to 2100 BCE, created by Ur-Nammu. The very first code of law, (found in most translations of the script) states “If a man commits a murder, that man must be killed.”^[12] 

Although most things have changed since that era, the law was able to carry on, imposed by most rulers after Ur-Nammu. The fact that one of the very first (recorded) laws ever written by man was created with the pure intent of retribution and justice proves that this was why laws were created. Throughout history, documented laws support this, while the idea of rehabilitation did not appear until millenia later, and even then, it was only evident in religious context. 

In the modern day, rehabilitation has become more popular, with the introduction of substitutions like community sentences instead of prison (largely due to overcrowding). However, despite community sentencing showing lower recidivism rates than prison,^[13] there exists the fact that community sentencing is only given to offenders of light or small crimes. As a matter of fact, a study conducted in Canada shows that for high risk offenders, prison yielded much lower levels of recidivism compared to lesser punishments.^[14] Similar results were found in the UK with a study on domestic abuse, with a 38% recidivism rate for community sentence and 28% for those imprisoned.^[15] Micheal Foucault, a French philosopher, argued that “The penitentiary technique is not intended to eliminate offenses, but rather to distinguish, distribute, and use them,”^[16] meaning that rehabilitation is not actually something which turns the person into a better human, but rather into something that the state approves of. Whilst similar arguments can be made against prison, I argue that the main point of prison is not to rehabilitate, but to instead act as a hanging threat to stop potential crimes from happening in the first place. 

In current times, the need for retribution has been explained by a victim’s need for closure. A psychological study in 1980 showed that people have a deep psychological need to believe the world is fair, and punishment restores moral balance after harm has been inflicted.^[17] A victim would also feel a lot safer if they knew the offender was behind bars, rather than still being out in the open, with only a curfew to restrain them. 

Conclusion 

In the quote “Use every man after his desert and who should ‘scape whipping,” Hamlet acts as a vessel for Shakespeare’s thoughts, criticizing the harshness of the law and mocking the “injustice” that existed in Jacobean England. Despite this quote being an open criticism of the law, talking about how should every little flaw be judged then there exists no man that will escape punishment, it does not mean the lives of people would be improved if Shakespeare’s request of a more lenient criminal justice system was imposed. As shown earlier, implacable law drives control, and in Jacobean England, control was very important. During this time, 30% of the population lived in poverty,^[18] and more than 50% of the population were classed as “laboring poor,”^[19] living paycheck to paycheck just to survive. Although men like Shakespeare may have wanted a softer system, treating offenders better than deserved only leads to the collapse of the legal system. As time passed and circumstances permitted, Shakespeare’s wishes eventually came true. However, without the harshness of the law that he was accustomed to, it may be that England today would have no law at all. 

Despite showing no leniency to criminals seeming harsh, it is an essential aspect of law to ensure the system survives. Thomas Hobble once wrote, “The safety of the people is the supreme law,”^[20] meaning that the sovereign must have absolute authority to enforce laws, even harsh ones, to prevent societal collapse into chaos and war. The main aim for the law is to ensure order through retribution whilst also constantly adapting to circumstances. If a strict system demands safety, why should we gamble innocent lives for the empty hope that convicted criminals can change their ways? 

References

^[1] Universal Declaration of Human Rights, article 11.1 (1948) 

^[2] International Covenant on Civil and Political Rights, article 14 (1966) 

^[3]"Blindfold and Alone: British Military Executions in the Great War" (2001) - Cathryn Corns & John Hughes-Wilson, page 345 

^[4] Pte. James Crozier (Feb. 1916, aged 16, shot for refusing to fight) 

^[5] Sir Matthew Hale, History of the Pleas of the Crown (1736), Vol. 1, Ch. 58 

^[6] R v R [1991] UKHL 12, [1992] 1 AC 599 

^[7] Apartheid Laws (1948 to 1994) 

^[8] South African Constitution (1996), Section 9 

^[9] The Adams Family Correspondence (Harvard University Press), Vol. 1, letters referencing household discipline. 

^[10] Cesare Beccaria, On Crimes and Punishments (1764), chapter 27, “Of the Mildness of Punishments”

^[11] People v. Berkowitz (1978) – Supreme Court of New York, Queens County (Case No. 1176/1977)

^[12] Code of Ur-Nammu, main surviving tablet comes from Nippur (modern day Iraq) and held in Istanbul Archaeological museums 

^[13] Recidivism rates in individuals receiving community sentences: A systematic review, by Denis Yukhnenko, Achim Wolf, Nigel Blackwood, and Seena Fazel (2019) 

^[14]"The Effects of Prison Sentences on Recidivism" (2019, Canada) 

^[15] Ministry of Justice (2023) – "Proven Reoffending Statistics Quarterly: April 2021 to March 2022"

^[16] Discipline and Punish (1975), part IV 

^[17] Lerner, M. J. (1980). The Belief in a Just World: A Fundamental Delusion 

^[18] Wrightson, Keith (2002). English Society 1580–1680. Routledge. (pp. 121–122)

^[19] The Making of the English Working Class (1963) – E.P. Thompson, chapter 7

^[20] Leviathan, Chapter 30

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