How do people who offend us deserve to be treated?

by Benjamin Ong

Can someone who has been accused of a crime be said to ‘deserve’ to be arrested, to go to jail, to be punished severely, to be allowed to go free, to be punished lightly, etc.?  It will now be suggested tentatively, without reference to any particular case or set of facts, but with particular emphasis on acts that offend some people, that he/she cannot be: these types of treatment can only be imposed by the law, and the law is not, in this case, concerned simply with desert.

The law is often indifferent to what people deserve or do not deserve.  Thus, for instance, somebody who sees a driver turning suddenly without signalling cannot sue that driver in negligence if no harm was caused, although that driver had indeed been negligent in the sense of being less careful than a driver should be; a person who buys a camera and later discovers that he has paid much more than he can get the camera for elsewhere cannot (in the absence of fraud or misrepresentation by the seller) sue to get his money back, even though we may think the seller to have acted unconscionably in charging such a high price; and, in particular, in a criminal case, the court only asks whether there is sufficient evidence according to the law of evidence to make out each element of the alleged offences as defined by the criminal law, even though one may well feel that people who commit certain acts (such as adultery) ought, though those acts are not criminalised, to be subject to some kind of unpleasant treatment — I do not say ‘punished’, for, by definition, a ‘punishment’ without law providing for it is not properly termed punishment (and often constitutes an unlawful act).  Even when someone is found guilty of a crime, desert is often not the only factor in determining the sentence; other factors such as how best to rehabilitate her or the victim’s desire to see retribution done against her play a role as well.

It is therefore not quite correct to say something like ‘W was not thinking properly when she impulsively grabbed the wallet, and so the owner was overreacting when he made a police report’ or ‘X deserved to get arrested given what he did’ or ‘given how she treated the hostages, Y deserved to have been slammed forcefully against a wall by the police officer who was arresting her’ or ‘Z insulted many people and deserves to be hauled to court to suffer the consequences’.  The problem with all of these is that whether and how someone is arrested or otherwise made the object of action by the police (or, in general, by the state), and what legal action someone faces, are determined according to pre-existing law; what that person deserves or does not deserve is simply not, by itself, relevant.  The example of Z is especially problematic because it presupposes that there exist ‘consequences’ which attach to Z’s action, when, in fact, consequences, by their very nature, flow from someone’s behaviour without any reference to whether the person deserved them.

Of course, it might be that the law directs the state to exercise discretion or make a judgment call, which may well involve asking whether someone deserves something.  This usually comes into play not at the stage of determining whether or not someone is guilty, but rather only at the sentencing stage after a person has been found guilty.  Abd even then, the first port of call, and the focus of the inquiry, is on what the law says; thus, the issue of what someone deserves is not looked at in the abstract, but only in a particular way according to law.  But, that having been said, the law considers other factors other than desert, such as the prospect of rehabilitation of a person who commits a criminal offence; therefore, even if it were possible to say that a person deserves a certain type of treatment, and the person indeed receives that treatment, it does not follow that the person received it because he deserved it.  Desert thus plays a very limited role in criminal law.

In particular, one area in which the criminal law is indifferent to desert is in the treatment of an accused person before and during the trial.  This is potentially tricky because these events can matter if the person is eventually found guilty: hence, a person who was held on remand before the trial instead of being released on bail, and is later sentenced to imprisonment gets to count the remand period as part of the prison sentence — to the (limited) extent (if any) that the prison sentence is based on desert, so too is the period spent on remand retroactively declared to be based on desert.  Before that, however, the law simply does not say that a person whose family cannot come up with bail money deserves to be kept on remand because of what he has done, or that a person who appears to have done some horrible things deserves to be kept in suspense while the police are investigating her, or that a person who acted in a particular manner deserved to be arrested in a more forceful manner than was strictly necessary to bring that person into police custody.  These types of treatment, if they operate in a manner adverse to the accused person, are unfortunate, and are therefore to be minimised wherever possible, viz. they are only to be imposed to the extent necessary to serve pressing needs such as to reasonably deter an accused person from leaving the country — proportionality analyses such as these are of course difficult, but never involve desert.

The crucial final step is to note that, because of the constraints imposed by law, the legal system or the state authorities who apply the law cannot simply act on the basis of what they think somebody ‘deserves’, then neither can anybody reasonably think that that person ‘deserves’ to be treated in a certain manner at the hands of the law/the state, or to be given treatment that only the law/the state can give.

For similar reasons, neither can we say that somebody deserves to be beaten up, raped in prison, forcibly deported, etc., because, as long as we believe in the rule of law, we cannot simultaneously say that (a) a person deserves to be given treatment X and (b) nobody is allowed to give treatment X to another person.

In summary, when we say that a person deserves to be treated in a particular manner, that type of treatment must be in principle capable of being applied by an actor who is capable of acting based on what the object of the action deserves.  Thus, we cannot say that a person deserves to go to prison, for (a) nobody but the law/the state can send people to prison; and (b) the law/the state do not act based on what people deserve except in (as outlined above) a very limited sense.  We can, on the other hand, say that a person deserves to be censured or to be forgiven by the community, for (a) censuring and forgiving are actions that can be performed by people generally acting on their own instance; and (b) people generally acting on their own instance can treat others for reasons relating to how they deserve to be treated.

Another way to interpret a statement that a person deserves to be (say) imprisoned is to see it as saying that the law ought to be changed such that such persons will be imprisoned.  But we must be careful to note that law is, by its very nature, general.  Hence, we can advocate changing the law based on what a class of persons or persons who engage in a particular type of conduct deserve, but not based simply on what one person deserves.  Accordingly, it is necessary to delineate carefully how that class is to be defined.  Thus, for example, if we are offended by speech and wish for similar speech to be criminalised or punished in a particular manner, we must ask: similar in what sense?  Uttered in a similar tone?  Offensive to a similar group of people?  Likely to incite others to similar consequences? etc.

When, therefore, someone offends people, we cannot coherently say that he deserves to be imprisoned or caned, or to be acquitted or allowed to go free, etc.