Proportionality, parsimony, and other limiting principles

The criminal justice system can only punish a person for acts they have committed, and to some extent take account of the harm they have done. In the process of sentencing it is possible for a judge to acknowledge the victim. This is why victim impact statements are a part of the court process – so that sentencing judges can acknowledge the victim, their suffering, and allow them a voice. But, the system is not there to magically fix everything, or to give voice to our desires for retribution, to see our pain or loss inflicted on an offender. The system sentences according to the rules:

Deterrence + Denunciation + Rehabilitation + Protection of the Community x (Offender + offence) = the appropriate punishment

The system is not there to represent the direct views of you or me. We may be part of it, we may be represented by it, but in the end, the system prosecutes and sentences because society as a whole must be protected by the system through sentences discouraging reoffending or rehabilitating individuals.

There are other aspects to criminal punishment that do make a person “pay” for their offence, particularly with offences that are the subject of general community disapproval. Child sex offences are particularly despised, and a person is stigmatised, both in prison and in the community. A child sex offender can never live down what they have done. While in prison, a child sex offender will fear for their life and physical safety. The reality of the punishment isn’t ‘they only got 3 years!’ It is 3 years of fear, loneliness, isolation, and hatred. It is 1095 days of misery. Before the sentence is even reached, an offender will likely suffer as much or more – rejection by friends, family and the community. The loss of everything – home, work, family. The criminal justice system doesn’t make this happen – people do. People seek their own justice, and they do it with fewer rules and safety checks than the criminal justice system.

The fact remains that some offenders will never accept the judgement of society. They will accept the consequences of being caught but not the condemnation. There is nothing we can do to change a person’s mind as to the wrong they have done.

This is why, with offences that stir the emotions of the public the focus needs to also be on the healing process for the victim. We can’t look to the criminal justice system to heal those affected by crime. Everyone wants to protect his or her loved ones from violence. But if violence happens, the punishment to the offender is unlikely to heal the wounds, because healing is not the aim of the criminal justice system – punishment to fit the crime is the aim of the system.

While you may read of people who say they feel cheated by the justice system because an offender has not been punished to the extent they desire, you have to consider that it is not the justice system’s place to mete out punishment according to how a few people feel about someone and what they did. A married couple lose their son in a tragic fight between the son and his best friend. The best friend and the son are drunk, and get into a drunken fight. The friend punches the son, who falls and dies several hours later. A foolish act ends in a tragic accident. The friend is deeply remorseful; he is plagued by the guilty of having killed his closest friend. The offence is uncharacteristic, he has given up drinking, and in all other ways is a good citizen. He receives a wholly suspended sentence. The parents feel cheated.

The criminal justice system requires a sentencing judge to assess the circumstances of the offender and the offence, and consider the purposes of sentencing in reaching a decision. The feelings of the parents are not a part of that equation. The criminal justice system has its own logic, its own means of assessing the penalty for an offence.