Proportionality Research Paper

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Proportionality denotes a relation between crime and punishment, namely, between the seriousness of a crime and the severity of the punishment. As a normative principle for the distribution of punishment – standardly referred to as the principle of proportionality – proportionality implies that the severity of a punishment should fit the seriousness of the crime that has been committed. More precisely, this idea comprises two different aspects of the relation between crime and punishment.

The first aspect of proportionality concerns the requirement that a punishment should reflect the seriousness of the crime, in the sense that its severity should comport with the severity of punishments for other crimes. For instance, if theft is a less serious crime than burglary, then ceteris paribus the thief should be punished more leniently than the burglar. And, if two persons are convicted of equally serious cases of criminal conduct, they should be allotted equally severe punishments. This purely comparative requirement is usually referred to as “ordinal proportionality” (von Hirsch 1993; Ryberg 2004; von Hirsch and Ashworth 2005).

The second aspect of proportionality concerns the way punishments non-relatively comport to specific crimes. For instance, a sentencing system which imposes a minor fine for a rape or several years of imprisonment for a parking offense might well be regarded as imposing grossly disproportionate punishments irrespective of what constitute the penal levels for other crimes. This idea of a non-comparative relation between crime and punishment is known as “cardinal proportionality” (von Hirsch 1993; von Hirsch and Ashworth 2005).

This research paper concerns the ethical aspects of proportionality in punishment (the enactment of the proportionality principle in penal laws and in relation to court decisions in different countries is not dealt with here (see, for instance, Clarkson and Morgan 1995; Bagaric 2001)). The first section concerns the justification of proportionality. The second section deals with the ranking of crimes in gravity and punishments in severity. The final section concerns the so-called anchor problem, that is, the challenge of how scale of crimes and punishments should be linked.

Justifying Proportionality

Why should the severity of the punishment be proportionate to the seriousness of the crime? Answers to this question can be found in both of the two main rival positions that have dominated penal theoretical considerations of the justification of state punishment, namely, utilitarianism and retributivism.

An early example of a forward-directed utilitarian justification was given by C. Beccaria who held that, if crimes of unequal seriousness – such as assassination, poaching, and forging – were punished equally harshly, this would undermine people’s ability to distinguish between the seriousness of these crimes (Beccaria 1964).

A corresponding argument was presented by J. Bentham who devoted a whole section of his The Principles of Morals and Legislation to considerations of proportionality. For instance, Bentham argued that, in the absence of proportionality, potential criminals would not be deterred from committing serious crimes any more than minor crimes and, therefore, would just as readily commit them. As an illustration of this consideration, he held that “If then, for giving you ten blows, he is punished no more than for giving you five, the giving you five of these ten blows is an offence for which there is no punishment at all: which being understood, as often as a man gives you five blows, he will be sure to give you five more, since he may have the pleasure of these five for nothing” (Bentham 1988, pp. 181–2, note 3). In the modern utilitarian literature, the main focus has been on the undesirable consequences – e.g., in terms of antipathy or distrust toward legal institutions and practices – that might follow if the legal system is perceived as not observing the conception of justice that seems to lie inherently in the idea that a more serious crime should be punished more harshly than a less serious crime (Bagaric 2001, pp. 185–86). However, whether a utilitarian punishment system should distribute punishment in a proportionate manner depends on whether this sort of penal distribution scheme is in fact the one that maximizes well-being, which is a purely empirical question and a question that has been the object of criticism (von Hirsch 1985).

The main modern discussion of the justification of proportionality has taken place within the framework of retributivist penal theory. The renaissance of Kantian and Hegelian thoughts on punishment – and the corresponding decline of the utilitarian penal theory – that took place in the 1970s not only marked a turning point in penal theoretical thinking but also, as emphasized by A. von Hirsch, led to a change of focus from the question “Why punish?” to “How much?,” thereby providing an opening for new and more elaborate thoughts on proportionality (von Hirsch 1991). Modern retributivism – a deontological position according to which punishment is justified in terms of desert – has been presented in many different versions, leading to correspondingly different approaches to the justification of a proportionate penal distribution. The overall idea of the retributivist justification is that a criminal deserves a more severe punishment, the more serious the crime committed is. The differences between the various expositions of this idea lie in various views on why a criminal deserves a punitive response for having committed a crime.

A first and simple answer is to hold that what a criminal deserves is to suffer and, hence, that he or she deserves to suffer more, the greater the seriousness of the crime. Since a punishment is more severe the more suffering it inflicts, it follows that a criminal should be punished more severely, the more serious his or her crimes. However, as has been pointed out, this way of justifying proportionality in punishing is vulnerable to the objection that suffering may befall a person in many other ways than by being punished (Ezorsky 1972; Ryberg 2004). For instance, a perpetrator may be racked by guilt, feel anxious about the prospect of imprisonment, or he or she may simply suffer from some sort of disease. However, if there are several ways in which a criminal may suffer after his crime is committed, then it seems that, in comparison with other criminals, who have committed equally serious crimes but who have not undergone some sort of nonpunitive suffering, the criminal has already paid part (or all) of his or her desert debt. But this implies that in this case, equally serious crimes should not be equally severely punished after all. Thus, it becomes less obvious that a proportionate punishment scheme can be justified on the grounds of the view that criminals deserve to suffer.

Another and theoretically more elaborate attempt to justify proportionality within a retributivist framework has been presented by what has become known as the “fairness theory” (Davis 1992). This theory is often presented on the ground of the broader view that, in a cooperative venture, involving costs and benefits of all parties, there should be an equitable distribution of those costs and benefits. Applied to the question of law and punishment, the view is that a criminal, on the one hand, gains a benefit from other people’s obedience to the law but, on the other, gains an extra benefit (an unfair advantage) by not restricting his or her action as does the law-abiding person. On this view, the criminal deserves a punishment as a way of outweighing the extra benefit which he or she has unfairly gained. Following this outlook, proportionality has been justified on the ground of the claim that a more serious crime provides the criminal with a greater unfair benefit and that a more severe punishment therefore is required in order to restore the equilibrium of benefits and burdens. As part of the task of justifying proportionality, two of the main challenges facing the fairness theory have been to clarify whether it is always the case that a greater unfair benefit is gained from having committed a more serious crime and, also, whether an appropriate burden can befall a criminal in nonpunitive ways or only be properly imposed as part of a punishment (Burgh 1982; Sher 1987; Davis 1992; Ryberg 2004).

A third retributive approach to the justification of proportionality has been provided by the expressionist theory of punishment. According to this theory, a punishment should not be seen merely as the infliction of suffering. Rather a punishment is perceived as a way of expressing or communicating an appropriate condemnatory message to the criminal (von Hirsch 1993; Duff 1986, 2001). What the criminal deserves is to be appropriately censured or blamed and the punishment is the means to this goal. The step from the expressionist penal theory to a proportionality in punishing has been presented by A. von Hirsch in the following way: “1) The state’s sanctions against proscribed conduct should take a punitive form; that is, visit deprivations in a manner that expresses censure or blame. 2) The severity of the sanction expresses the stringency of the blame. 3) Hence, punitive sanctions should be arrayed according to the degree of blameworthiness (i.e. seriousness) of the conduct (von Hirsch 1993, p. 15).” One of the questions which the expressionist view and its justification of proportionality has given rise to is why, if it is a fact that censure and blame can be expressed or conveyed to someone in many different ways, the state’s sanction should take the form of a punishment. This “why hard treatment” question has been answered in different ways by modern adherents of expressionist approaches to punishment (Matravers 1999).

Ranking Crimes And Punishments

If the severity of punishment should be determined by reference to the seriousness of the crime committed, then the tasks of clarifying what makes one crime more serious than another and what makes one punishment more severe than another become crucial. For instance, unless it is possible to tell whether a rape is more serious than a burglary or whether theft is more serious than reckless driving, the idea of proportionality in punishing becomes vacuous and unable to provide any practical guidance on penal distribution. Similarly, proportionality presupposes that it is possible to determine whether one punishment, say a prison term of a certain length, is more or less severe than another punishment, say, a fine of a certain amount.

Though there does not exist theoretical agreement on how crimes should be ranked in terms of seriousness, a standard view in the modern retributivist tradition is that crime gravity should be determined on the ground of harm and culpability (von Hirsch 1993; von Hirsch and Ashworth 2005). With regard to the harm dimension, the view is that the relative gravity of a crime increases with the degree of harmfulness. Assault is a more serious crime than theft because it causes much more harm to the victim. Though this seems intuitively appealing, there may be other cases in which it is less clear how to compare the relative harm of different crimes. Thus, one of the theoretical tasks has been to specify what should be understood by criminal harm and to provide some sort of guidelines for the computation of harm (see von Hirsch and Jareborg 1991).

One of the things that complicates estimates on the harm of crimes is that there are several crimes which do not, at least not in any straightforward way, involve harmful conduct. A standard example is conduct which only risks or attempts harm. For instance, even if someone drives hazardously in a crowded street, there may be no one who is actually harmed. The same is the case with the inchoate crime of attempt. For instance, a planned crime may not succeed for the simple reason that the person did not commit all the acts necessary to bring it about. Or the person did all the intended acts but nevertheless did not succeed in bringing about a desired result. One way of dealing with such cases has been to suggest that what matters is not the actual outcome (harm) of a criminal act but rather that the criminal ought to be held liable for what he or she intended, no matter whether this was realized by the crime (Ashworth 1984). Another way of accounting for non-realized harms has been to draw on judgments of risk. On this view, what matters in the determination of crime gravity is the risk-adjusted harm, that is, the product of the harm intended and the risk that it would be realized by the crime that was committed (von Hirsch and Jareborg 1991).

The other dimension of crime gravity is the culpability of the criminal. The first aspect of culpability is the mental state or attitude a person holds when a crime is performed. The law uses the term “mens rea” (the guilty mind) to denote these mental elements. The traditional mens rea distinctions are between: intention, knowledge, recklessness, and negligence (and often in the last case no criminal culpability at all). The idea is that different kinds of mens rea imply different degrees of culpability. For instance, it is generally agreed upon that intentional harm ceteris paribus implies a higher degree of culpability than recklessly caused harm. As H. L. A. Hart illustratively remarks, it seems worse to break someone’s Ming china intentionally than to knock it over while walzing wildly round the room not thinking of what might get knocked over (Hart 1968).

The other aspect of culpability concerns what is usually referred to as “excuses” which may take several forms. For instance, a person may be excused if a harmful effect is caused involuntarily, under constraints from defects of knowledge or defects of will, or if a person in different ways lacks sufficient capacity to make judgments (e.g., due to intoxication, infancy, or insanity). A standard view on excuses is that they instantiate an underlying view on responsibility and that different degrees of responsibility imply different degrees of culpability. However, what constitutes the most plausible theory of criminal responsibility is a matter of ongoing dispute.

The fact that computation of the seriousness of a crime is a poly-dimensional enterprise obviously complicates such judgments. One way of illustrating how harm and culpability affect the assessment of crime gravity is to perceive the gravity of a particular crime as the product C times H where H is the harm done or risked, while C is the culpability of the criminal, indicated by the numerical values from zero to one (see Nozick 1981). This formula implies that culpability is a matter of degree and that when there is no culpability – i.e., when C ¼ 0 – the gravity of the crime is zero, which implies that the defendant does not deserve a punishment. However, in real life, numerical judgments are not an option. And the question as to how one should rank two crimes in gravity, when the first crime is more harmful than the second, while the second is performed with a higher degree of culpability, remains a theoretically open question (see Ryberg 2004).

The ranking of punishments in severity is generally perceived as a theoretically less challenging task. For instance, it seems reasonable to hold that the severity of a prison term varies with its duration and that severity of fines varies with the amount of money. However, motivated, for instance, by the contention that a punishment system which offers only a few punishment options will often punish criminals either too severely or too leniently relative to the crime committed, there has been a growing interest in intermediate sanctions – including, e.g., home detention, community service, electronic monitoring, etc. – thereby prompting a discussion of how such punishments should be compared in terms of seriousness. The obvious answer is that sanction gravity should be determined on the ground of the amount of suffering, deprivation, or inconvenience which a punishment inflicts on the punished. One of the things that complicates this suggestion is that punishments which are the same in name – say, 1 year in prison – may affect two persons very differently in terms of suffering or deprivation. This fact has led to discussion of whether proportionality implies that two persons, who have committed the same crime, should be punished with objectively different punishments, if there are differences in two persons’ vulnerability to a certain type of punishment, or whether an objectivist account of punishment severity – which does not include considerations of differences in the ways a punishment is felt or experienced – is the more plausible (von Hirsch 1993; Kolber 2009; Ryberg 2004, 2010).

Specifying Proportionality

How far can the principle of proportionality guide us when it comes to the distribution of punishment? The idea of proportionality in punishing – as we have just seen – presupposes that it is possible to rank different crimes in seriousness and to rank punishments in severity. Thus, another way of posing the question is to ask how should the scale of punishment and the scale of crime, once they have been constructed, be linked? This question, which has been considered almost exclusively within a retributivist framework, opens up a number of different answers.

One possible answer might be to hold that the scales should be linked by letting the punishment directly mirror the character of the crime that has been committed. This view – referred to as lex talionis – is often expressed in the classical biblical formulation “an eye for an eye, a tooth for a tooth.” Though this principle was, in the historical context, understood not as prescribing exact retribution but rather as a way of restraining disproportionate cruel retaliation – “several eyes for an eye” – it is obvious that a literalistic interpretation of “like for like” would constitute a simple device for meting out appropriate punishments for different crimes. However, in penal theory, this interpretation has had very few adherents. One of the classical retributivists who came closest to defending this view is I. Kant who insists that a principle of retaliation “can assign both the quality and quantity of a just penalty” (Kant 1996). However, even he recommends a number of punishments, which violates the definiteness of lex talionis. One of the reasons for this is probably that lex talionis faces the simple practical challenge that there are a large number of cases in which it is impossible to reverse a crime against the criminal himself/herself. For instance, it is hard to see what punishment one should inflict on a blackmailer, a forger, a dope peddler, a multiple murderer, a smuggler, or “a toothless fiend who has knocked somebody else’s tooth out” (Kleinig 1973, p. 120).

A possible reaction to this problem might be to interpret lex talionis somewhat more loosely by holding that what matters in penal distribution is not that materially the same should be done to the criminal as was done to the victim, but rather that it is the harm that a crime caused to the victim that should be reversed against the criminal himself/herself. This view was defended by G. W. F. Hegel who held that it is only in respect of the “form that there is a plain inequality between theft and robbery on the on hand, and fines, imprisonment, &c., on the other. In respect of their ‘value’, however, i.e. in respect of their universal property of being injuries, they are comparable” (Hegel 1967, p. 72). By interpreting proportionality as equivalence of harm, the problem as to how one should punitively respond to blackmail, forgery, and several other nonreversible crimes is resolved. However, this is not tantamount to the fact that there are no problems of application. One of the reasons why most modern retributivists do not subscribe to lex talionis – in either of the two interpretations – is that the principle seems to ignore the complexity of judgments of what determines the seriousness of a crime. As indicated above, few, if any, modern retributivists would hold that all that matters in the comparison of crime seriousness is the harm that is caused. The culpability of the criminal is usually considered a seriousness-determining factor as well. However, if this is so, then it is no longer clear what “like for like” means. For instance, if person A and person B have each committed a crime that caused the same degree of harm to their respective victims, but it turns out that while A was fully culpable for his/her crime while B was not fully culpable (e.g., because he/she was only partially responsible), then the crime committed by A would be more serious than the crime committed by B. However, this is not captured by an interpretation of proportionality which requires that a crime is either literally reversed against the criminal or reversed in the form of harm-for-harm equivalence. Conversely, if one insists that proportionality should be interpreted as a like for like principle, then it becomes obscure what constitutes the equivalent punishment of a crime for which the perpetrator was only partially culpable.

In fact, this point is what some of the very early opponents of retributivism had in mind in their criticism of the idea of proportionate punishment. For instance, more than a half a century ago, W. G. Maclagan argued that retributivism is impossible in application because it presupposes a notion of equivalence which itself is impossible because “the two things that are to be measured against each other are in their very nature incommensurable” (Maclagan 1939, p. 290). The same objection was presented by H. Rashdall and E. Ferri more than a century ago. However, in the modern penal philosophical discussion, this criticism has had less resonance, for the simple reason that several retributivists themselves reject the idea of an equivalence between crime and punishment. But if proportionality is not interpreted as a “like for like” principle, then how should one determine what constitutes the proportionate punishment for a certain crime? Several attempts at answering this question have been presented in the modern retributively oriented era of penal theory.

One proposal, which has been defended by J. Kleinig and adopted by several other penal theorists, is to link the scales of crimes and punishments by the use of “anchor points” (Kleinig 1973). The proposal is based on the assumption that the two scales are not simply ordinal scales. That is, crimes are not merely ranked in terms of being more or less serious than other crimes. Rather the idea is that differences in the relative seriousness of different crimes should be reflected in the way crimes are ranked. To take a simple example, if out of three crimes, ranked in ascending order of seriousness – say, theft of 50€, embezzlement of 100€, and rape – the second is only slightly more serious than the first while the third is considerably more serious than the second, then these relative differences in gravity between the crimes should be reflected in the way the three crimes are being punished. In more technical terms, there should be an interval matching of the scale of crimes and the scale of punishments. On the ground of this assumption, the proposal is that the poles of the respective scales should serve as anchor points. The idea is presented by D. E. Scheid in the following way: “The main strategy … is to consider a scale that includes all crimes and a scale that includes the full range of acceptable punishments, and then anchor the scale to each other at two points. We anchor the most severe punishment to the most serious crime (say, life imprisonment for murder) and the least severe punishment for the least serious crime (say, a fine for petty larceny), with the other crimes falling in between” (Scheid 1997, p. 494).

In the penal theoretical discussion, this way of giving content to the idea of proportionate punishing has given rise to several objections (Ryberg 2004). For instance, it has been held that it is far from clear how one should identify the upper anchor points. First, it is not obvious what should be regarded as the most serious crime. Should this be murder? Why not the murder of ten persons or perhaps of 50? Or what about genocide? The challenge is that for any crime, it always seems possible to imagine another one (in fact sometimes reality lives up to imagination) that is even more serious. Second, the idea of determining the most severe of punishments has also been questioned. There is no straightforward way of making sense of the idea of the most severe of possible punishments. One proposal has been that the upper limit of punishment should be determined at the point at which a punishment would violate human dignity (Kleinig 1973). Critics, for their part, have been skeptical as to whether it is possible to develop a plausible account of dignity on the ground of which it will be possible to determine that, say, the length of a prison term becomes morally unacceptable because it violates human dignity (Ryberg 2004). Moreover, as a further critical comment, it has been held that the outlined method for the anchoring of the two scales is in need of an argument as to why the scales should be pegged at the end points of the scales. Why is it that the most serious crime should be pegged to the most severe punishment? Why not peg it to the punishment just below the most severe on the scale? In the absence of an argument to this effect – the criticism goes – the suggested anchor theory ends up as morally arbitrary (see von Hirsch 1993, p. 39; Ryberg 2004, p. 142).

Another approach to the question as to how the scale of crimes and the scale of punishments should be linked has been developed by A. von Hirsch. This theory combines considerations of desert, prevention, and parsimony in punishing (von Hirsch 1993). The main idea is that a punishment system should start by ordering the crime scale, from the least to the most serious, and by indicating a punishment level which corresponds to the current level in the society. However, von Hirsch further suggests that one should follow a “principle of parsimony,” according to which state-inflicted suffering should be kept to the minimum necessary to achieve that purpose of the intervention. On the ground of this principle, one should follow a “decremental strategy” by a pro rata reduction of the penalties. Von Hirsch, finally, suggests that this progressive diminution of the punishment levels should stop at a point determined on the ground of considerations of crime prevention. This proposal has led to discussions of the role which crime prevention plays within the overall retributively minded penal theory and of whether this way of anchoring the scale succeeds in providing a sufficient guideline for how crimes of different gravity should be punished (Ryberg 2004). The discussion of this as well as of the former proposal illustrates that, even among penal theorists who subscribe to the principle of proportionality, there exists no general current consensus on how the proportionate punishment for different crimes should be determined.


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