The issue about fairness is a good point. As a teacher, I explain to my students that fairness does not necessarily mean the same or equal. Fair means that each student gets what s/he needs or deserves because each is an individual. The same or equal means that they all receive identical treatment. This might translate into the penal system.
With the recent appointment of a new Supreme Court Justice, your question is extremely relevant. In a recent Newsweek, the comment was made that President O'Bama was true to his word that he would appoint justices who show "empathy." The article's author suggested that such an emotional approach to justice might raise issues. Afterall, empathy and fairness may come into conflict, it was written.
In a very significant past criminal case, O.J. Simpson was acquitted of a charge of murder even though his DNA matched a bloody glove, etc. One of his defense attorneys, Johnny Cochran, was later quoted as saying, "The color of Justice is green." That this statement is true is certainly underscored throughout history; if one can affford top attorneys, he/she stands a much better chance of at least mitigating one's punishment. Charles Dickens wrote of this very situation in "Great Expectations" when Magwitch received more years of prison than the "gentleman" Arthur Compeyson, who was the more criminal in intent and in action. In this country, there were prison riots in the federal system in the 90s when punishments for the sale of crack were made more severe than those for the sale of cocaine. The black inmates in these institutions rioted, contending that their punsihments were extended because of race/lower socio-economic class since cocaine sales to a great extent involved whites/wealthier clientele.
With all the options of jury selection, trial venue, choice of attorneys, continuations, appeal upon appeal, etc. the task you suggest seems extremely challenging in this country. Apologies for the cynicism, but in an argument you must refute the opposing side.
One problem with your first argument is the word "fairly." Who determines what is fair? What the criminal thinks is a fair punishment for his crime would most likely differ from what the victim thinks is fair. Try to use a word that is not so ambiguous as "fairly."
The first argument you suggest is the basis of most conceptions of justice. The idea of equal punishment for criminal behavior is a critical component of jurisprudence, and the American system of justice, in particular. I think that you can develop this in discussing how our justice system attempts to mete out punishments that fit the crime. This can take the form of criminal law (incarceration/ jail, fines, execution) or civil law (monetary compensation). Both realms provide the opportunity to determine punishments that are in accordance and in proportion to the crime committed. I do not know if you are interesting in pursuing an moral or ethical angle to this question, but it might be interesting to see how moral or ethical punishment is in accordance to the crime committed. It might be challenging to articulate this position, but one that could be quite worthwhile.
In principle, the need for punishment suiting the individual crime cannot be denied. we can forward many arguments in support of this principle, some of which are given below.
- The basic justification for the punishment itself derives from the crime. Therefore, the nature of punishment must match the crime.
- If we see the punishment as a means of revenge, then also greater the original crime, greater the revenge justified.
- If the purpose of punishment is to compensate the victim of the crime or the society in general by way of fines or compensation, such compensation should match the loss caused by the crime.
- If purpose of punisment is a deterrent to the person committing the crime, the degree of deterrent, and therefore the punishment, should match the crime.
- If purpose of of punishment is create an example for the society so that other people in society who are not involved in the crime in any way will also be afraid to take up the criminal path, then also a grater and more effective example is needed for bigger crimes.
However, is should be realized that it is not always possible to to determine or define how bad a crime really is. For example the views of society relating to issues such as pornography and homosexuality have changed considerably over a period. Ruthless exportation of child labour was rampant in nineteenth and early twentieth century in many Europeans countries and USA, but today it is illegal to employ child labour. The question of legality of slavery caused the American Civil War.
In addition to changing perception of what is criminal and what is not, is the problem of ascertaining for sure the the guilt of the person accused of crime.
In view of all these issues it is worthwhile examining alternative approaches to punishment based on the principle of "a tooth for tooth".