What would a rational criminal justice system look like?

The American jurist Oliver Wendell Holmes Jr wrote in 1925: ‘If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, I don’t doubt that your act was inevitable for you, but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like.’

He was right that lawbreakers are not truly responsible for their actions. We make choices with a brain we didn’t choose, one constructed by a process beyond our control. However, executing or harming people to dissuade others from emulating their behaviour is a crude application of utilitarian logic. The same logic could be used to justify killing one healthy person and harvesting his organs to save five sick people. It might maximise ‘wellbeing’ but it’s an abuse of human rights. The benefit to society must be balanced against the fundamental right of the individual not to be harmed.

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