1. The punishment of crime serves two masters - justice and deterrence.
2. Justice is the civilized substitute for vengeance, addressing the desire for symmetry of suffering by demanding that the severity of the punishment equal the severity of the crime.
3. Justice would seem to require the death penalty as punishment for murder - a life for a life. But the death penalty is absolute, while guilt or innocence is ever uncertain. The injustice of executing a possibly innocent person outweighs the justice of executing a possibly guilty one. Thus the just penalty for intentional murder is life imprisonment, not execution.
4. Deterrence requires that the severity of the punishment be sufficient to reduce substantially the commission of the crime. More severity would be unnecessarily harsh; less would be ineffective.
5. There is an inverse proportion between the likelihood of punishment and the severity necessary to deter a crime; that is, the more likely it seems that one will be arrested and convicted of a crime, the less severe the punishment need be to deter one from committing it, and vice versa.
6. However, since much crime is irrational, the result of desperation, addiction, or mental illness, deterrence is only one of a number of social strategies required to reduce it.
7. Justice is moral; deterrence, practical. Justice reflects the philosophical view of human behavior; deterrence, the psycho/social view. While just sentences are weighed on an absolute scale, sentences for the purpose of deterrence require constant calibration.
8. The perennial conflict between justice and deterrence is played out in legislatures and in the hearts and minds of judges, which is why legislatures should adopt sentencing guidelines, but with enough latitude to allow judges to apply the principles of both to an individual case.
9. In such an application, it would seem that if a just punishment were more severe than deterrence required, justice should take precedence, whereas if a punishment necessary for deterrence were more severe than justice required, deterrence should take precedence. For deterrence would not suffer if the just punishment were more severe, just as justice for the victim would not suffer if the punishment necessary for deterrence were more severe. Whereas if the punishment were less severe than justice required, the victim would suffer, while if the punishment were less severe than was necessary for deterrence, society would suffer.
10. Justice for the criminal is important, but less so than justice for the victim or the social interest in deterring crime. A criminal should be punished no more than either justice or deterrence requires, whichever is more severe.
11. If incarceration is the appropriate punishment, it should be both humane and productive - humane to serve justice, productive to serve deterrence. For it is unjust to sentence a criminal to an inhumane incarceration, where he or she is subject to violence. And it deters crime to allow prisoners the opportunity to acquire skills and an education so that they can be gainfully employed on the outside. These requirements are expensive, but well worth the investment, and are as much a part of deterrence as the severity of punishment. What is spent on the criminal on the inside is saved on the outside, providing that it is spent wisely. Both justice and deterrence require no less.
Copyright by Nicholas Gordon. Free for personal or non-commercial use.
Audio and Video Music: E Minor Prelude. By Frederic Chopin. Music free to use at YouTube.