equality, human rights and crime, justice, law, philosophy

Crime and Human Rights (17): A Criminal’s Human Rights, Some Q & A



1. Does the necessity of enforcing the law and ensuring compliance with the law justify extreme forms of punishment?

No. It’s not because you have committed a crime that you lose all your rights. The severity of criminal punishment should remain within certain bounds, and the need to be tough on crime doesn’t give you permission to do whatever it takes to be tough on crime. Most laws will never be respected in all cases anyway. A fetishistic attitude towards law enforcement isn’t helpful or necessary. Reasonably good enforcement is good enough. Convicting or deterring the marginal criminal is not a benefit that outweighs the harm done to the rights of criminals by the systematic imposition of extreme punishment (and extreme punishment has to be systematic if it is to have the required deterrent effect; punishing only one criminal in an extreme way won’t do any good, and some say that even systematic punishment has no deterrent effect).

strong arm of the law2. If extreme punishment is not allowed, is it allowed to punish like with like?

Again, no, and for the same reasons as those given above. Lex talionis is unacceptable. Human rights are not conditional upon respect for the law, and the fact that punishment inevitably leads to some rights restrictions doesn’t imply that criminals lose all their rights.

3. But if criminals, by being criminals, don’t forfeit their human rights, how can one justify punishments such a incarceration or monetary fines which incontestably violate criminals’ human rights?

Those punishments can be justified, not as violations of rights but as limitations of rights. We need to limit the rights of criminals in order to stop them or deter them from violating the rights of others. In this respect, criminals are not treated differently from someone who yells “FIRE” in a crowd.

4. Is it justified to impose more severe punishments for the same type of crime on people who are more difficult to deter?

No again. Like the need to deter or stop crime doesn’t trump the human rights of criminals, it also doesn’t trump the rule regarding equality before the law.

There’s a related post here about the human rights of Adolf Hitler. More posts in this series are here.

(image source)
equality, human rights cartoon

Human Rights Cartoon (43): Types of Equality

school segregation

school desegregation, inch by inch

(drawing by Bill Mauldin)

Here’s a short overview of different types of equality (I’ll come back to this in future posts):

1. Equality before the law

This concept is linked to the concept of non-discrimination. Laws must be equal for everybody and should not discriminate between people. Everyone should be protected and punished by the law in the same manner. The law is equal for all and all are equal for the law. The law cannot favor or harm a particular group or person. It can only favor or harm everybody in the same way. It has to be neutral with regard to persons. The legislator cannot make a law against or in favor of a particular person or group. A law should never apply to a limited group of people and should never treat people in different ways. It should by definition, be general. The same laws apply to everybody in the same way, including the legislator.

This neutrality is a requirement for both the content and the application of a law. A neutral law can still be applied in a selective way. Breaches of the law can be prosecuted or punished in an unequal and discriminatory way (take for example, the demography of death row in the US). That is also why the testimony of all persons is counted with the same weight. If that would not be the case, the equal application of the law would be impossible.

2. Equal human rights

This is also linked to non-discrimination. Every human being has equal rights, wherever he or she lives, whether he or she believes in a God or not, is rich or poor, or whatever. Human rights are rights of all people at all times. If everybody has equal rights and if, as a consequence, nobody should be discriminated against in the use of his or her rights, then human rights are universal. It is unacceptable that some people enjoy more human rights than others, or enjoy some human rights more than other people enjoy them.

See also these posts on discrimination and these on universality.

3. Material equality, equality of income or wealth

See this post on the need for material equality, as well as this one.

4. Political equality

This is expressed in the democratic rule of “one man, one vote” designed to give all citizens equal influence. Political participation is an equal right. Everybody has the same right to participate and to rule, irrespective of class, status, race etc. Many social distinctions are politically irrelevant. Everybody has one vote and is politically equivalent. Every vote is as important as the next one, no matter whose vote it is. Of course, political equality can be undone by economic inequality and inequality of wealth. That is why a democracy should also protect a certain kind of material equality.

5. Equal opportunity

See this post. Equality of opportunity is often contrasted with equality of outcome or condition, i.e. the equality of income and wealth.

Beside these distinctions, others are also often used: equality of procedure, absolute vs relative equality, inequality for equality (affirmative action)…