Should the law treat offenders better than they deserve?

By Camilla Ga Eun Kim- South Korea

Introduction: 

Yes, the law should treat offenders better than they deserve. The quote, “use every man after his desert, and who should ‘scape whipping?” conveys that if the legal system treated offenders strictly according to what they morally or legally deserve, no one would escape harsh punishment as few are truly blameless. The consideration of context, intention, and potential for reform in sentencing ensures mercy still has a place within our courts and our justice system doesn’t become overly punitive. We must consider how the terms “better” and “deserve” should be applied to this question. “Better” refers to the practical application of the punishment carried out whereas “deserve” questions the theory behind such punishment. However, it is also important to question the role of the nature of the offence in determining whether the law should treat offenders better than they deserve, even after they’re committed heinous crimes like drug offences and rape.  

What prisoners deserve?

When questioning the extent of punishment which prisoners “deserve,” we delve into the three key theories on punishment. The practice of harsh punishment, like the death penalty, is presumptively problematic when there is an aspect of the practice that would normally make it morally wrong. Since it would normally be wrong to intentionally kill other people, punishment needs to be justified. The theories of justification for punishment are based upon the 5 components of legal punishment: 1) the intentional infliction 2) of harm 3) by a legitimate authority 4) on someone who has broken the law 5) because they committed a crime. One of the theories that arise from these 5 components is the backward-looking theory that deterrence should be the primary purpose of punishment. This was argued by John Stuart Mill in a speech to Parliament in 1868, where he stated deterrence is the ‘very purpose of penal justice.” However, if the aim of punishment is to produce a more peaceful and safe society, the backward-looking theory fundamentally undermines this aim because punitive justice systems tend to result in prisoners reoffending after leaving prison. Recidivism rates in countries like the UK whose aim of punishment is to deter went up to 62.5% for juvenile offenders given youth cautions or released from custody according to the Ministry of Justice annual report from January to March 2023. We know this is due to punitive justice systems because the unnecessarily cruel treatment of offenders breeds a cycle of violence in which they leave prison only to commit more crimes since they are not encouraged to improve the error of their ways but rather condemned because they ‘deserve’ it. This negative mindset tends to especially impact young offenders whose sense of self-worth is likely to be more damaged from such treatment than a fully grown adult.

Treatment of prisoners:

 The 2022 HM Inspectorate Report found in prisons like HMP Pentonville, over half reported victimisation by staff and claimed support of those at risk of suicide and self-harm was ‘not good enough,’ with 7 self-inflicted deaths since the last inspection. Such unlivable conditions are likely to negatively impact and severely damage the mental health of those who survive prison, and with the additional suffering caused by bullying from prison guards, a criminal’s time in prison starts to become a fight to survive rather than a time to reflect on their errors and how best they can re-integrate themselves back into society. This increases their risk to reoffend as they are not taught rehabilitation but rather how to fight to live another day. Immanuel Kant’s theory that punishments must be proportional to the criminal’s ‘inner-wickedness’ is agreeable in theory but limited in practice due to the fact it’s not realistic whatsoever.  We now know we cannot trust prison guards and executioners to always make sure punishments are no more or no less than what the criminal deserves because there is a high risk of such punishment being executed due to hate or revenge. As a result of this, and the fact we need to prevent this cycle of violence, it is more beneficial for us to adopt the forward-looking theory of retributivism instead- focused on reintegrating offenders into the real world in order to benefit society in the long-run and make them feel valued as part of the community and the social contract. We see this in countries like Norway whose focus is on rehabilitation rather than deterrence. A stark contrast to HMP Pentonville is Halden Prison- considered one of the most humane prisons in the world due to its focus on maintaining the prisoner’s humanity during their time in incarceration. This is done by ensuring liberty is the only right restricted and prisoners still retain rights like the right to life and the right to vote. Norway’s philosophy which seeks to treat prisoners as human beings allows re-entry into society to become easier due to nationwide support for rehabilitation, encouraging criminals who served their sentence to leave prison with the skills and confidence to contribute to society. This suggests that we not only need a reform in our prison system but also a shift in society’s attitude that prisoners should be treated with the focus of rehabilitation and not deterrence. The fact PMs like David Cameron have said the thought of giving prisoners the right to vote ‘makes (him) physically ill’ and his belief that ‘when people commit a crime and go to prison they should lose their rights’  exactly highlights the issues of this deep-rooted prejudice in our society. Though many taxpayers may not welcome the idea of increasing spending by 300% to improve the living conditions of criminals, we don’t need to follow the Halden model of flat-screen TVs and prison yoga studios to treat offenders better than they deserve. Norway’s correctional facilities which allow prisoners to frequently see visitors ensures they have a strong support system after their release, and workshops to learn skills like automotive repair and carpentry increase the chances prisoners have in re-integrating themselves back into society, with anti-violence and drug counselling reducing their chances of reoffending. The 40% increase in the employment rate for prisoners who leave jail and its recidivism rate within 2 years being 20%- one of the lowest in the world explains why many US states like Oregon and Dakota are now attempting to copy such systems. Norway’s reoffending rates falling by 50% from 70% in the 1990s emphasises the benefits to wider society of treating offenders better than they deserve through rehabilitation. Although factor 1) and 2), the intentional infliction of harm must be fulfilled in order to carry out punishment, it is also our duty as human beings to be forgiving- Kant. Although this doesn’t mean we should allow people to trample on victim’s rights with little redress, it emphasises how punishments shouldn’t be carried out of hate or to set a cruel example. This is because we all have guilty consciences, linking to the point that we need to treat offenders better than they deserve because few of us are truly blameless.

Treat them better? 

Reframing theories of punishment into its practical application questions how we can treat offenders ‘better’- exploring the physicality of how we punish. The shocking results of the Stanford Prison Experiment in 1971 demonstrates how easily prison guards can abuse their power and mistreat criminals when situational forces push them in that direction. Zimbardo’s termination of the experiment after only 6 days due to the extreme, pathological behaviour emerging in both groups reflects how prison systems need to be reformed to prevent such victimisation and mistreatment by staff. The men who were assigned as guards in this experiment began behaving sadistically, inflicting humiliation and suffering on the ‘prisoners’, which resulted in their dehumanisation. Despite the ethical concerns which arose from this experiment, it proved that ‘evil behaviour can be elicited in the best of us’ when we allow situational forces to overcome dispositions in human behaviour-due to factors like a lack of consequences and society’s prejudice towards prisoners. The law must treat offenders better than they deserve by re-evaluating the safeguards put in place to protect prisoners from receiving harsh treatment disproportionate to the crime they committed. 

The flaw with Lex Talionis: 

Over 110 countries have abolished the death penalty completely, condemning it as the ‘ultimate cruel, inhuman and degrading punishment’, according to Amnesty International, due to its direct violation of Article 2 (the right to life) and Article 3 (the prohibition of torture or inhuman and degrading treatment) under the ECHR. Many countries have also become de facto abolitionists, though there are some who still use the death penalty- especially autocratic states who seek to minimise dissent by striking fear, adopting the backwards-looking theory of deterrence. China’s notorious reputation as the ‘world’s chief executioner’ with 55 crimes outlined by Chinese law as punishable by death, demonstrates the persisting attitudes of retributivism that are still commonplace within non- Western cultures today. Unlike countries like Norway who have adopted more progressive beliefs of what prisoners deserve, citizens in countries who still use the death penalty like China still believe in the theory of Lex Talionis, which translates to how punishment is carried out. The theory of an eye for an eye also stems from theocratic religious systems in Islamic countries like Iran, who justify how the continued use of the ‘ultimate punishment’ is mandated by sharia law and its retaliatory principle on qesas crimes. The fundamental flaw of lex talionis is that it is a figurative concept that is not necessarily appropriate in modern times. If person X murdered person Y, there would be no difference between person X’s punishment where he gets executed by the firing squad or is shot by a bereaved family member of person Y. Both punishments seek retributive justice- it is just that one has the legal authority to do so whereas another does not. Nonetheless, the physicality of the punishment is still exactly the same. This leads us to question how we punish criminals, especially since the power to legally kill another individual risks being abused by a higher authority. We see this implied in Naima Asif’s critique of capital punishment in Muslim countries like Iran, in which the Quran is manipulated and ‘often used as a tool to further political agendas’. The imposition of the death penalty in cases like Intisar Sharif Adbdalla, who was sentenced by Sudan to be stoned to death for allegedly having committed adultery is not only a breach of international standards but also sharia law in itself. The cardinal principle of sharia law is fairness and equal justice, yet we see the use of medieval methods like stoning and flogging to death highlights how such punishments are being used to frighten citizens into obeying political objectives, a tactic often used by the Taliban to discourage citizens from committing ‘moral crimes’. The Quran’s warning that in the case of doubt, punishment should not be imposed (‘Do your best to avoid mandatory punishments. If you can find a way out for the accused, let him go.’) has been ignored, resulting in disproportionate suffering for criminals who have now been made into examples of what happens if the state is disobeyed. 

Learning from Gafgen?

The case of Gäfgen illustrates how even suspected criminals  must be treated better than they deserve as their rights cannot under any circumstances be discarded for the ‘greater good.’ In 2002, 11-year old Jakob von Metzler was kidnapped and murdered by Magnus Gafgen in Frankfurt. The following year, Gafgen was convicted and sentenced to life imprisonment. However, when Gafgen was first suspected and taken in for questioning, he refused to answer questions, resulting in the German police threatening to torture him to make him confess and reveal the child’s location, whom they thought was still alive at the time. Gafgen’s confession extracted from the threat of torture was of no legal valid evidence whatsoever and should never have been used by the Court. Obtaining information through the use of torture, even if it will result in the saving of thousands of lives is still morally wrong. Even if the child was alive and there was a possibility that threatening to torture a suspect could save his life, such an act would still be a violation of Article 3 of the ECHR. The police’s conflict between protecting article 2 and article 3 highlighted how rights are universal- even if there wasn’t a real threat of torture, it should never have been allowed. The German’s court’s justification that they were prioritising the negative obligation to not torture over the positive obligation to protect life was flawed, as the state shouldn’t have the power to choose which person’s human right to violate in order to protect someone else’s. Gafgen’s second confession in court which is what resulted in his conviction is irrelevant to the fact that there was initially a gross mishandling of justice inadequately addressed, emphasising the need for us to treat potential offenders in a way that discounts what the police think is what they supposedly deserve. 

The Nature of the Offence: 

However, one may argue that when debating whether offenders should be treated better than they deserve, there is rarely a straight answer because each case is unique. Firstly, we must take into account the severity of the offender’s actions when committing the crime. An example of this can be seen when judges take into account the mitigating and aggravating factors which inform sentencing guidelines for Grievous Bodily Harm. If the offender’s actions were to fall under a high level of culpability and the top category of harm, for example someone who is driven by revenge to bring life-threatening injury to an individual is likely to face severe punishment than one who was just acting in excessive self defence or had a mental disorder not linked to the commission of the crime. This leads us to question ‘better’ treatment within the framework of how harsh the sentence is, which will differ depending on the nature of the offence. Secondly, the offender’s mental capacity should also be considered, with the defence of loss of control and diminished responsibility having a huge impact on reducing a murder conviction to a lesser offence, questioning the moral judgement behind what offenders ‘deserve’ after committing heinous crimes. A case which illustrates the consequences of failing to consider the offender’s mental capacity can be seen in the execution of Nagaenthran Dharmalingam, a drug trafficker sentenced to death for carrying less than 3 tablespoons of diamorphine across the Malaysian border into Singapore. Despite the fact Dharmalingam had an IQ of 69, as well as borderline functioning intelligence and concurrent cognitive deficits- making him vulnerable to manipulation by organised crime leaders, Singapore’s tough stance on drug laws resulted in this factor being dismissed by the courts, and an innocent man being executed. We must abolish the death penalty and when carrying out punishment, keep the aim of rehabilitation and reintegration in mind. However, since we risk operating according to another blanket statement, we should keep in mind how serious the crime is. For example, the death penalty should only be available for serial killers and countries such as Poland and Indonesia who use castration as punishment for rape should only be employed for repeat offenders or those convicted of raping children under 15 or close relatives. For example, Indonesia’s first court-ordered chemical castration sentence occured in 2020 when they sentenced Muhammed Aris, convicted of raping 9 children, with chemical castration and electric monitoring, in addition to 12 years in prison. Such punishments are necessary as repeat offenders are more likely to bring further danger in society as it would be harder to help them see the error in their ways and re-integrate them back into society if they’ve committed the same crime more than once.

Conclusion: 

In conclusion, the reason why we even a debate on whether offenders should be treated better or worse than they deserve is because of the difference in the premise of our argument: the people who argue offenders should be treated worse than they deserve, according the the sentence handed by the courts, is because they believe the theory of lex talionis and/or deterrence are the reason why we punish, However, the people who argue offenders should be treated better than they deserve is because they believe the aim of punishment is to re-educate offenders on the error of their ways and focus on rehabilitating them back into society. This is carried out by still upholding the punishment handed out by the courts but ensuring prisoners are still treated like human beings, which many prisons in our system fail to do. The latter is the most convincing argument as to how we should treat offenders, in order to reduce recidivism rates and ensure we don’t promote the false notion that going against the social contract justifies abuse and removal of human rights other than liberty. Although one may argue that adopting such an attitude and treating offenders much better in prison could encourage more people to commit crimes because punishment is no longer severe enough to become a deterrent, we see countries which adopt such beliefs and treat offenders better than they deserve have some of the lowest reoffending rates in the world- such as Norway. We must be careful to consider the severity of the crime and the capacity of the offender, to ensure we fairly administer justice on a case by case basis. 

Bibliography: 

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