Should the Criminal Justice System Treat Offenders Better Than They Deserve? Understanding “Desert”

Politics and Public Relations

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“Use every man after his desert, and who should ’scape whipping?” Shakespeare questions in Hamlet, prompting us to wonder how justice is carried out by legal systems (Shakespeare, 1603/2003). Shakespeare’s line suggests that few would escape punishment if all were treated strictly according to desert. While the notion of "desert" gives us a model of justice, an order based solely on desert is not enough. The law must be balanced with mercy, respect for the dignity of the individual, and discretion. An orderly society must balance desert and compassion with moral insight.

Defining Desert

"Desert" is a term applied to what one morally deserves in correlation with how they have behaved. In criminal law, this historically meant that punishment should be proportionate to offense. John Locke, in his Second Treatise of Government (1689/1988) argues that “every man has a right to punish the offender, and be executioner of the law of nature,” but only “so far as calm reason and conscience dictate what is proportionate to his transgression.” For Locke, the punishment has to be equal to the injury done in order to preserve justice and avoid abuse of power. Immanuel Kant, in The Metaphysics of Morals (1797/1996), took a much stricter position by holding that justice derives only because of an offender’s “desert”, and insisted on treating the offender as a rational, responsible being that can be blamed. He wrote, “Judicial punishment can never be simply as a means to accomplish some other good for the criminal himself or for civil society, but must be imposed in all cases because the individual has committed a crime.” Even so, deciding what a person actually deserves is extremely challenging. Desert should be assessed by not only by the harm done, but the individual’s moral fault, and the broader social impact of their actions. Locke's and Kant's ideas bring into perspective the philosophical tensions within our comprehension of justice and will live on to shape contemporary legal thinking.

Challenges in Determining True Desert

Determining what someone "deserves" is commonly far more complicated than it seems. Human discernment is imperfect. Justices frequently reach unjust conclusions because of cognitive biases, systemic racism, and the nature of evidence. If we recognize underlying causes of crime such as childhood trauma, poverty, and marginalization, we cannot make determinations of moral responsibility with any certainty. Philosopher Hanna Pickard has argued that while these circumstances do not remove their responsibility, they ask for an accountability that does not “neglect compassion and understanding” (Pickard, 2011). In Greater Manchester, poverty and the humiliation of not having basic needs have driven children as young as ten years of age into drug gangs and criminal exploitation (BBC News, 2024). Former probation officer Julia Pennington explains how gangs will often intentionally target the vulnerable youth to exploit (BBC News, 2024). “I've witnessed men pulling up on estates waiting for children, offering them phones and trainers,” she recounts. These young people are not criminals committing crimes because of intent, they came out of desperation and instability. Their social context and history has restricted choices long before the criminal justice system got involved. Obviously, they must be held accountable. However, a justice system that thinks only in terms of what individuals "deserve" ignores the several systemic disadvantages that led to specific judgments in the first place. A fair system of justice must take into account the harm done as well as the conditions leading to the offense. If such assessments are not taken, we risk not only covering existing inequities, but exacerbating them.

The Case for Treating Offenders Better Than They Deserve

Treating offenders better than they deserve is not forsaking justice, but enhancing it. Mercy, rather than a forsaking of fairness, is its highest application. In her book Upheavals of Thought, Martha Nussbaum, in line with Aristotelian ethics, argues that punishment should not merely serve to condemn but instead focus on developing character and restoring humanity that has been harmed (Nussbaum, 2001). Treating an individual better than they "deserve" on this ledger is not moral laziness, but an acknowledgment of common human dignity and the possibility of transformation.

If law hopes not just to govern but to elevate society, it will understand that the highest justice is not only the courage to punish but also the courage to forgive and the wisdom to rebuild.

Conclusion

While a system built on desert is arguably the most ethically straightforward way, it neglects the complexity of human life and our criminal justice systems' numerous failures. Desert may be able to provide us with a starting point, but it alone cannot dictate a society.

Various factors, from systemic basic and unequal access to justice, to childhood trauma and poverty, all dictate individuals to act in ways that are beyond their control. Therefore, treating offenders better than they deserve is not a betrayal of justice, but rather a fulfillment of it. In a world where true moral desert is nearly impossible to measure perfectly, our systems must consider the side of mercy. The ultimate aim of justice should not be to merely punish, but to heal, restore, and protect the dignity of every human being.