Penalties should be set by law, not by judges
Let mercy be the character of the law-giver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge, or of the executive power, will be the eccentric impulses of whimsical, capricious, designing man.
—Thomas Jefferson. Letter to Edmond Pendleton, Philadelphia, August 26, 1776.
In 2009 an Australian man who raped a 4-year-old girl after breaking into her grandmother’s house was given a suspended sentence. (Reported in the Sydney Morning Herald, March 3, 2009.) Most people would agree, as a bare minimum, the offender should have been locked away for life—to protect other children from him in the future, if nothing else. The sentence was therefore at extreme variance with the will of the society. However, the problem in such a case lies not with the judge, who is entitled to his opinion, but rather with a system which grants judges the power to give their opinions the force of law.
To give judges discretion in sentencing is to institute the rule of man rather than the rule of law. In order to eliminate judicial discretion, crimes must be exactly defined. If there are varying degrees of seriousness to a crime, it should be split into separate categories, each with detailed descriptions. The jury should then be asked to decide which category applies to the evidence. If leniency is to be given under certain circumstances (for example, for first-time offenders), this should be exactly prescribed by law.
The requirement for retribution
The requirement for retribution is a natural law right. As with the right of self-defense, it is not limited to the victim of an attack, but belongs to all mankind. Just as every person on the planet has the right to defend the innocent, likewise every person has the right to demand retribution for attacks on the innocent. This is the principle that gave the Allies at Nuremburg standing to try the perpetrators of the Shoah, even though their people were not themselves victims of the Shoah.
As such, the police should never ask victims of crime if they want to press charges. The police should make that decision solely based on the likelihood of conviction. Criminal prosecutions by the state are not free services provided to victims that may be accepted or refused. Instead, they are services provided to the whole of society that are non-negotiable.
The whole point of criminal law, as distinct from civil law, is that the offense is one for which society demands retribution and protection from future offenses. Criminals must be brought to justice. Accordingly, victims and all other witnesses should be required to give evidence and be liable for contempt if they refuse.
The punishment must be worse than the crime
Living law, full of reason, and of equity and justice … ought to be severe and awful too; or the words of menace … will excite nothing but contempt.
—Edmund Burke. Letters on a Regicide Peace, 1796.
For retribution to be adequate, the punishment must be worse than the crime. The worst breaches of this principle are in relation to the heinous crimes of murder and rape. For example, in Germany a man stabbed a pregnant woman to death in front of her husband and 3-year-old son as she was giving evidence in a court of law, and received fifteen years in jail. (Alexander Wiens, sentenced November 11, 2009.) Travesties of justice such as this stem from a confused sense of morality. Mercy is good, so the fuzzy thinker assumes sentencing a murderer to a short sentence is good. But it is not good, it only feels good. If justice requires retribution to be far worse than the crime, then by necessity, the dictates of justice require that punishments must sometimes be unspeakably horrible—because crimes are sometimes unspeakably horrible. Someone who pretends to be enlightened by showing leniency to rapists and murderers is in fact betraying the innocent by preferring evil to innocence. As Thomas Paine explained: “A lax manner of administering justice, falsely termed moderation, has a tendency both to dispirit public virtue, and promote the growth of public evils.” (The American Crisis, April 19, 1777.)
The pretended jurisdiction to forgive a crime like murder is no more legitimate than the pretended jurisdiction of the communists to execute people for political crimes, or the pretended jurisdiction of the Nazis to execute people for being Jews, Gypsies or homosexuals. Just as it is impossible to righteously commit murder, so too is it impossible to righteously forgive murder. Both acts are profoundly evil. As John Trenchard observed: “All the laws of society are entirely reciprocal, and no man ought to be exempt from their force; and whoever violates this primary law of nature, ought by the law of nature to be destroyed. He who observes no law, forfeits all title to the protection of law. It is wickedness not to destroy a destroyer.” (Cato’s Letters No. 42, Considerations on the Nature of Laws, August 26, 1721.)
The need for proportion
Punishments should be in proportion to the disregard shown to the rights of others by the crime. Thus, a man who swears at a police officer should not get one month in prison if, within the same jurisdiction, a murderer is punished with eight years in prison. That would suggest that swearing at a police officer ninety-six times is the moral equivalent of murdering a person.
Different types of proportionality
Two factors need to be considered when determining proportionality: compensatory proportionality and retributive proportionality. Compensatory proportionality requires that an identity fraudster who steals $200,000 receive a sentence that is 200 times longer than the sentence for a thief who steals $1,000. Retributive proportionality requires that the degree to which the crime shows willful disregard for the rights of the victim determines its severity.
Crimes against property do not display as great a disregard for the rights of the victim as crimes against the person. The punishment for such crimes should therefore be compensatory, with only a small retributive element. This does not mean that a property criminal may not receive a longer sentence than someone who commits a crime against a person. On the contrary, a Ponzi scheme operator who embezzles the retirement savings of millions of people might get jailed for life, whereas a sentence for third degree assault might be only ten hours community service.
Drunk drivers, brawlers, burglars, armed robbers and manslaughterers are all criminals who put people’s lives at risk, showing a far greater lack of concern for the rights of others than do property criminals. As such, the retributive element of the punishment should be greater than the compensatory element. Thus, a person who shoots a gun but misses his intended victim has caused little or no harm, but should nevertheless receive a severe sentence because of the retributive element.
The disregard shown for the rights of a victim by a murderer, rapist, or other heinous criminal is absolute. It follows that the retributive element should be foremost in the equation when determining the appropriate punishment. Moreover, as the punishment must always be worse than the crime, in the case of murder this will require the death penalty. In the case of serial killers, tyrants, and monsters who terrorize and torture their victims, the only way their punishment can be made proportionate is if they are made to suffer before they die.