Proportionality’s Lower Bound

Many philosophers have raised difficulties for any attempt to proportion punishment severity to crime seriousness. One reason for this may be that offering a full theory of proportionality is simply too ambitious. I suggest a more modest project: setting a lower bound on proportionate punishment. That is, I suggest a metric to measure when punishment is not disproportionately severe. I claim that punishment is not disproportionately severe if it imposes costs on a criminal wrongdoer which are no greater than the costs which they intentionally caused to others. I flesh out the implications of this Lower bound by discussing how to measure the costs of crime. Methodologically, I claim that different costs should be compared by considering preferences. Substantively, I claim that many proportionality judgements undercount the costs of crime by focusing only on the marginal and not the average cost. I suggest that we may hold defendants causally responsible for their contribution to the costs of that type of crime.

Do Offenders Deserve Proportionate Punishments?

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term ‘proportionate punishment’ refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a local theory of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes.

Petty Bribery Qualification Issues

The article is devoted to the problems of the qualification of petty bribery crimes. The article also touches upon the problem criminal low assessment and proportionate punishment of group crimes of petty bribery; the problem of the qualification of mediation in bribery; issue of choosing a criminal qualification of petty international bribery depending on the subject of the crime. The problem of petty bribery qualification and assessment of actions mediator in this crime. Possible qualification options are offered with specific examples.

A Normative Case for Abolishing the Doctrine of Extended Joint Criminal Enterprise

It is submitted in this article that assisting/encouraging is normatively different from and less harmful and dangerous than perpetration, and that the unfairness and injustice of complicity is doubled in the context of extended joint criminal enterprise. The defendant’s participation in the underlying crime is constructed as participation in the collateral crime and such fictitiously constructed participation is further constructed as actus reus of the collateral crime; and the defendant’s foresight of the collateral crime is constructed as intention to assist/encourage the collateral crime and such fictitiously constructed mental state is further constructed as sufficient mens rea for the collateral crime. The double constructive nature of this doctrine cries out for legal reform, especially in jurisdictions where it is still retained as a sui generis doctrine. It is proposed that a new lesser offence of risking another’s collateral offending will serve better the purpose of fair labelling and proportionate punishment.

Death and Retribution

Any retributivist defense of capital punishment must establish that execution is a morally permissible punishment for at least some first-degree murderers. This chapter makes a case for the permissibility of execution, suggesting that it is sometimes a proportionate punishment. The existence of reasons to execute is thus made plausible. After outlining objections to competing deterrence theories of sentencing, the chapter returns to retributivist considerations, illuminating the affinities of cardinal proportionality and the lex talionis, which states that offenders deserve whatever harm they impose on their victims. Although the talion has a suspect reputation, it can be understood as standing for the unobjectionable principle that punishments must reproduce the relevant wrong-making features of the offense. Accordingly, it can be used to establish the cardinal proportionality of murder and execution. Chapter 1 concludes by showing how the retentionist can repel abolitionist attacks based on the right to life and human dignity.

Part V Fairness and Expeditiousness of ICC Proceedings, 37 Proportionate Sentencing at the ICC

In sentencing decisions, the concept of proportionality is often understood in purely retributive terms-punishment should accord with the desert of the perpetrator. This contribution argues that the ICC should use retributive proportionality at most as a limiting principle. It begins with a brief critique of ICC sentencing approaches, including the Lubanga sentencing judgment. Next, it provides an overview of the dominant theories of proportionality and some of their implications for sentencing. Third, the chapter examines the sources of law available to the ICC in relation to proportionality analysis, demonstrating that they support a focus on crime prevention. Fourth, the chapter explains why retributive proportionality would be both impracticable and dangerous. Finally, it proposes a preventive theory of proportionate punishment, arguing that the ICC should focus primarily on appropriate norm expression and other aspects of prevention, such as deterrence, incapacitation, and restorative justice.