Should the law treat offenders better than they deserve? (Legal argumentative essay)
The Continence of Scipio; Date: c. 1706 by Sebastiano Ricci (Italian, 1659–1734)
Introduction
In Shakespeare’s Hamlet, when asked to provide for his actors comfortable rooms and good treatment, Polonius promises Hamlet that they would get exactly what they deserve – nothing more, nothing less. [1] Hamlet retorts, “Use every man after his desert, and who should ’scape whipping?” [2] His remark confronts the flaw of retribution: if society meted out only what each person strictly merits, no one would go unpunished. Yet, retribution remains the “golden thread of sentencing” in most of our contemporary justice systems. [4] In countries like Canada, New Zealand, and South Africa, retributive justice plays a central role in their statutory guiding and sentencing principles. [5] It serves as the cornerstone of the desert model, which aligns the gravity of the offence with the severity of the punishment. [6] Thus, this essay seeks to answer the following questions: Does such a desert model truly better society and serve the public good? Or should the law, as Hamlet suggests, extend leniency towards offenders that pure desert alone may deny?
In this essay, “what offenders deserve” refers to the treatment they receive under the desert model of retributive justice. I argue that the law should treat offenders better than they deserve for the following two reasons. Firstly, a system that prioritizes rehabilitation over desert reduces recidivism and is empirically proven. I will discuss counter-arguments against the rehabilitative model and why they are unconvincing. Secondly, systemic inequalities distort culpability assessments which makes it impossible to measure desert accurately.
For these reasons, this essay contends that a legal system that prioritizes a justice system grounded in rehabilitation over a desert model offers the most coherent path toward public safety, minimizes crime, and fulfils the purpose of the legal system most effectively in creating a more equitable society.
1. Understanding the Desert Model
To begin answering this question, we must first understand what makes the desert model such an appealing framework in our criminal justice system. Criminal sentencing is predicated on four main principles: deterrence, retribution, prevention, and rehabilitation. [5] We can identify that the desert model is rooted chiefly in the key concept of retribution, which is a major goal of the criminal justice system. As legal philosopher Andrew von Hirsch argues, the model is predicated on fairness by requiring that ““penalties be allocated consistently with their blaming implications”. [7] Hence, its appeal lies in the promise of moral symmetry between crime and punishment. At first glance, it seems clearly logical as it seems to fulfil the moral intuition that the offender must “repay” the moral debt to society created by their wrongful act, while acting as a deterrent to minimise future crime. [8]
However, the same retributive, backward-looking focus that gives desert its moral weight narrows its vision: Justice Anthony Kennedy warned that when punishment is driven by retribution, it can “often contradict the law’s own ends.” [9] As Hirsch and Ashworth note, the desert model in criminal sentencing largely ignores any sort of future-oriented considerations such as the likelihood of re-offending, and is “not determined by predictive or rehabilitative considerations”. [10]. Retributive theory thus fails when we consider that it does not seek to prevent crime, but rather to inflict punishment in line with lex talionis – an eye for an eye. It views punishment in the Kantian tradition as an end (if not a good) in itself and not a means to an end. Hence, when the law focuses on making offenders suffer for the sole purpose of moral indebtedness, it ignores the criminogenic factors such as poverty, substance abuse, or past trauma that drove the crime in the first place. With these factors unaddressed and unresolved, the risk of re-offending remains high and public safety – a key purpose for sentencing criminals – is no better protected.
2. Rehabilitation Over Retributio
What then is the alternative? As the Nelson Mandela Rules highlight, the ultimate purpose of sentencing is to “protect society from crime and to reduce recidivism”. [11] By this metric, I argue that rehabilitation grounded in restorative justice addresses the deficiencies of the desert model and fulfils the purpose of law more effectively by cutting recidivism dramatically, resulting in a safer and more integrated society. A criminal sentence has many justifications, of which retribution and rehabilitation stand at the forefront. The law should therefore balance these goals and not sacrifice one component for the other as the desert model does. Singaporean Chief Justice Sundaresh Menon supports this, stating that rehabilitation is able to “tackle the root causes of criminality, which if not addressed can give rise to repeated cycles of offending”. [12] Comparing America’s sentencing model against Norway is instructive in showing why the rehabilitative model outperforms the desert model. Recidivism provides a precise benchmark for gauging how well a country’s sentencing protocols and prison systems achieve crime-reduction. In the United States, where retributive justice, isolation and reprisal “stand at the forefront” of her criminal policies, current recidivism rates are over 70% within 5 years. [13] By contrast, Norway’s criminal sentencing revolves around the resocialization of offenders. Their rehabilitative approach is characterized by providing access to mental health counselors and offering well-funded education, drug treatment, and employment opportunities in prisons, resulting in greater levels of well-being and the positive reintegration of offenders back into society. [14] As a result, recidivism rates in Norway are under 20% – a rate that is more than three times lower than the United States. [13] A desert model would lengthen confinement and restrict privileges such as education and jobs for serious violence, yet policy-makers prioritised future-oriented social utility and the dignity of the offender. Furthermore, it can be seen that Norway’s judicial experience is not an anomaly. Growing econometric literature such as (Mastrobuoni and Terlizzese, 2019; Hjalmarsson and Lindquist, 2020; Bhuller et al., 2020; Lotti, 2020; Landersø, 2015) shows that prisons that treat offenders more leniently than strict desert would dictate, by investing in their future rather than exacting moral pay-back, consistently produce lower re-offending [14]. This pattern holds especially true for the youth: Economist Giulia Lotti’s natural experiment study found that young offenders placed in rehabilitative institutions were 12% less likely to offend within 2.5 years and were significantly less likely to re-commit serious crimes such as robberies and burglaries. [15] Hence, these data points directly substantiate that a more lenient, rehabilitative sentencing framework that treats offenders “better than they deserve” fulfils the law’s ultimate purpose of public safety far more effectively than proportional suffering.
3. Addressing counter-arguments against rehabilitation
The main criticism against rehabilitation is the “Nothing Works!” argument. In the landmark case Mistretta v. United States, the court removed rehabilitation from federal-sentencing considerations based on two arguments: one, that programmes were prohibitively expensive and diverted funds away from other important programmes like policing or victim services; secondly, that there was no evidence rehabilitation worked. (Nothing Works!) [16] This paradigm shift resulted in our current heavily punitive and retributive sentencing systems. Legal scholars like James Wilson and Ernest van den Haag opined that rehabilitation required “not merely optimistic but heroic assumptions about the nature of man” to suppose that they could change, and that their characters were often too “wicked” to achieve this change. [17]
I disagree on the grounds that the “Nothing Works!” critique collapses when faced with economic data and contemporary evidence. The Washington State Institute for Public Policy, based on 400 research studies in Canada and the United States, conducted a cost-benefit analysis of the supposed “prohibitive” costs of rehabilitative programs. Shockingly, they found that for every $1 spent, the government saved $8: this shows that almost paradoxically, rehabilitative programs expand rather than drain judicial resources for policing and other programs. [18] Hence, the utilitarian would agree that it makes fiscal sense to give offenders more opportunities and autonomy than they would deserve under lex talionis. Additionally, as the aforementioned section proves, empirical data points to rehabilitation outperforming retributive justice showing that it does work; at the very least, it works better than the desert model. Since the aim of sentencing is to enhance public safety, the probabilistic benefits of well-designed rehabilitation outweigh the symbolic satisfaction of retribution. Even assuming, arguendo, the worst-case scenario in which the public misreads rehabilitative policies as “too lenient” or weak, and this marginally raises offending, I contend that the net gains – significantly lower recidivism, lower correctional costs, and positive reintegration as evidenced above– far outweigh any slight increase in new crime. Moreover, this possible increase, as proven by legal professor Dr. T R Tyler, is already bound by prevailing social norms which keeps the baseline offending low. [19] Most people follow the law because they see laws as morally binding, not because they fear punishment. This makes a marked increase in offending unlikely. Hence, the argument for treating offenders better than they deserve through rehabilitation still stands.
4. Systemic inequalities distort culpability assessments
Having justified why the desert model is outperformed by the rehabilitative model in justice system outcomes, this essay argues that the desert model itself is also inherently flawed as it presupposes that all offenders are rational agents that make voluntary choices to offend. However, studies show that the vast majority of offenders come from violent and socio-economically disadvantaged backgrounds, which are exacerbated by racialized policing and bias in sentencing. [20] Legal philosopher John Rawls makes the deeper point: Because one’s moral character is shaped by the “natural lottery” of an individual’s social circumstance, it is practically impossible to measure desert. [21] This is evidenced by data on sentencing– in England and Wales, a report found that Black defendants were sentenced to custody 1.6 times more frequently than White defendants for the same drug-related crimes. [22] Such disparities are replicated across jurisdictions. [23] Therein lies the problem and the ironic naming of the desert model: How can the law be confident in handing out a “deserved” sentence rather than punishing racial bias, poverty, or trauma?
The impossibility of measuring what offenders deserve is evidenced by a study published in the UC Davis Law Review. Using identical crime vignettes that varied only the defendant’s race, the researchers found that respondents implicitly paired the word “Black” with notions of pay-back and harsh retaliation, while “White” evoked mercy and leniency. The stronger a participant’s anti-Black implicit bias, the more fervently they endorsed retributive sentences. [23] If judgments of what an offender “deserves” shift with subconscious racial attitudes– an accident of birth entirely beyond the defendant’s control– then retribution is not just imprecise but is inherently vulnerable to prejudice that masquerades as moral “payback”. Even with the ostensibly neutral sentencing framework designed on desert principles, desert is insensitive to deep-rooted cultural and racialized factors that systematically disenfranchised marginalized communities (e.g. the Black and Hispanic Community in America), in which poverty, over-policing or implicit racial biases result in unfair sentencing outcomes. [24]
Take the cases of People v. Brock Turner versus State v. Cory Batey in 2016. [25] Both were horrific, similar cases in which the defendant sexually assaulted an unconscious woman. Notably, both California and Tennessee subscribe to retributive sentencing principles predicated on just deserts. Turner, who was white, received a six month sentence with probation. Batey, an African American, was sentenced to fifteen years in prison. [26] Despite some notable differences between the cases, can they really justify more than a fourteen-year difference in jail time? If near-identical crimes can yield wildly different sentences, the desert model’s promises of objective proportionality collapses. Hence, because desert is not a self-executing algorithm and must be measured and applied by human legislators, prosecutors, and judges, racialised framing infiltrates the sentencing process and makes “what offenders deserve” ambiguous at best, and into a conduit for prejudice in most cases.
A defensible framework must therefore start with the acknowledgment of “moral luck” and build leniency and mercy as a systematic safeguard. One way forward is a Contextual-Equity model: (1) presume the minimum liberty deprivation compatible with public safety; (2) require courts to weigh codified social-structural factors such as childhood adversity scores, neighborhood deprivation indices, and discrimination before moving above that floor; and (3) mandate capability-building plans (education, therapy, employment) in every criminal sentence. By shifting the burden from the defendant to the state to justify extra hardship, and by tying punishment to future reintegration rather than backward-looking blame, the law would deliberately treat offenders “better” than an uncorrected desert calculus. Thus, we can counter prejudice, enhance legitimacy, and ultimately produce safer communities.
Conclusion
As Ernest Haag states in the Michigan Law Review, the “just deserts theory fails fundamentally to tell us what is deserved for any crime”. [20] The desert model ignores how social context shapes culpability and constitutes, as Herbert Wechsler states, nothing more than vengeance in disguise. Evidence shows that systems built on rehabilitation, not retribution, dramatically reduce recidivism and save public funds, while strict proportionality simply warehouses people and crime together. Worse, “just deserts” crumbles under racial and class bias. In short, the law must choose: cling to the mirage of perfect desert and keep “whipping” without end, or embrace a rehabilitative, context-sensitive model that actually makes communities safer and fairer. The answer, as Hamlet foresaw, is plain. Justice demands we treat offenders better than retribution alone would ever allow; doing so, we treat society better, too.
Endnotes
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