(An essay by Chris Low 2014)

To what extent is it possible to make the punishment fit the crime?

Some of us think that it is possible to make the punishment fit the crime one of the earliest is a
lawmaker - Hammurabi a Babylonian king who lived more than 3,000 years ago. The set of laws
laid down by him, is aptly call the Hammurabis Code, contains (at least) 282 laws. Apparently,
these laws were based on the retributive principle of an eye for an eye as well as the presumption
of innocence both the accused and the accuser have the opportunity to give evidence. However,
there seems to be a lack of provisions for extenuating circumstances and for the variation of the
stipulated punishment. Perhaps, this set of rules might have provided us with the first opportunity
to debate on how much fairness could be applied, in the area of punishment.
In cases where punishment is prescribed in an absolutely rigid manner based on a specific penal
code, then the extent of fitting the punishment to the crime is limited but, in cases where the
judge(s) has the wisdom and discretion to apply the penal code sensibly, then it is indeed largely
possible to make the punishment fit the crime!
Regarding laws based on the retributive principle we must consider Gandhis words an eye for an
eye only ends up making the whole world blind, so, are we on the right path if we endorse a penal
code based on retribution/retaliation? The Chinese has a similar proverb alluding to a never ending
cycle of retaliation and vengeance, over many generations, if we live our lives based this principle
(an eye for an eye). In our modern world, there might be rare instances where criminals take
revenge on the sentencing judge; but, the argument of a never ending cycle of revenge (for
punishment meted out) is generally not valid, in this context. The punishment (for crimes
committed) is meted out by society and taking revenge on society while not unheard of, is rather
uncommon.
Taking a step back, it would be important for us to understand the basis for a good penal code, its
context and purposes. Generally, a penal code sets out punishments which act as a deterrent and a
form of retribution for offenders putting a price tag on crime. Would-be criminals understand
that there is a price to be paid. Usually, the more serious the crime, the higher would be the price
- the more severe would be the punishment. Hopefully, the deterrent effect, then, would too be
higher. A good penal code will also include provisions for restitution to the victims.
Furthermore, punishments also serve as a means of incapacitation - reducing the possibility of
further offences for example, if the criminal is jailed, for the period he is in jail the probability that
he will commit further crimes is reduced. Also, punishments serve to reinforce of societal values and
provide a path for reform if the penal system is based on the right principles and administered
properly. To these ends and to make the punishment fit the crime, we have been refining our
legal systems for the past hundreds of years.
For example, the British common law - upon which the legal systems of Singapore and Hong Kong (&
many other Commonwealth countries) are based has been evolving since the Norman Times
(1066-1150) when the king was basically the law. In the beginning of the 12
th
century, King Henry I
started sending his judges to different cities and locales to award judgement and pass sentences for
local disputes. This is the first sign of standardisation of the law and the penal code and the
beginnings of procedural consistency. The judgements, sentences and punishments awarded by
these (and later) judges, which are documented, then became the precedents for future judges
(An essay by Chris Low 2014)
until today. Hence, our legal system, whilst far from perfect, has been refined by centuries of
debate and deliberations.
The Islamic Law which is used in Islamic regimes has the same refinement process. The famous
Islamic legal scholar, Shafii (first century AD) suggested that the Islamic law be based upon the
Koran, but if the parameters of the crime are not covered by the Koran, then the teachings of
Prophet Muhammad will be the next authority, and if the answer is still not found, then the judge
could form his own decision based on a precedent nearest in resemblance to the case being judged.
This leads us to the million dollar question: what if, in contemporary times, the circumstances of
the crime are not covered by any precedents? In these cases, can we trust an unbiased judge to to
make the punishment fit the crime? I will answer this question in the conclusion.
Even after centuries of refinement, miscarriages of justice still can occur. In most modern countries,
only people with extensive legal training and are of good character are appointed as judges. But, we
still find many cases of corruption where judges pass light sentences or even find criminals to be
innocent, after accepting huge bribes. Ironically, there are judges who sent innocent people to jail
after accepting bribes. One example is Mark Ciavarella, a former judge from, Pennsylvania, USA,
who awarded jail terms to many innocent kids after he accepted US$ 1 million from builders of two
private juvenile detention centres. Clearly, in these cases, the punishment did not fit the crime (they
did not even commit the crime!).
For his crime(s), Mark Ciavarella was sentenced to 28 years in federal prison. Does his punishment
fit his crime(s)?
It is an open secret that a rich criminal interned at the Pondok Bambu Prison in Indonesia, can still
have a good time. One blogger even posted pictures on his webpage and commented this white
collar prison looks more like a 4-star resort the rooms are decked out with designer furniture,
karaoke machines, fridges, bathrooms, and personal climate controlled air condition.
In the area of legal controversies and differences in opinion regarding the fit of the punishment, a
good example would be the high profile vandalism case involving Michael Fay, an American citizen.
Mr Bill Clinton, a former American President intervened and the authorities reduced the sentence
from six strokes of the cane to four strokes. This case exemplifies the effect of political intervention
as well certain parts of a countrys penal code being viewed as unacceptably harsh by another
country.
Non-withstanding shortcomings in our penal code, corruption, judicial mistakes, mistaken identities,
police shortcomings and other imperfection of our legal system, again, it is indeed largely possible
to make the punishment fit the crime! Our legal system(s) have evolved over the centuries the
commitment and integrity of our law enforcement organisations have also prevailed over the
centuries. Unless human nature undergoes a drastic change for the worse then, we should be able
award the right punishment for a particular crime. In cases where the circumstances of the crime
have no precedence, then the good judgement of our very experienced judges should suffice, and if
not, our system of appeal and the strength of public voices will provide the required moderation.
Society, then, is our best judge and moderator.