Weighing Relative and Absolute Proportionality in Punishment

Conflicts between relative and absolute proportionality are an important puzzle facing retributivist thought. The question of how those conflicts should be handled has long been neglected. Relative proportionality refers to the ideal that punishments should be comparatively fair among offenders. Absolute proportionality refers to the ideal that punishments should be fitting, that is, neither too harsh nor too lenient. The two senses of proportionality contribute independently to the ideal of proportionality. Thus, it is not plausible to resolve conflicts between them by dropping one of them. Instead, the two senses of proportionality must be weighed. Recent literature about comparative and noncomparative desert provides some guidance for how the two types of proportionality should be weighed. If the two types of proportionality are of roughly equal moral weight, then our greater ability to reliably satisfy relative proportionality gives us some reason to give priority to relative proportionality.

Humane Neoclassicism

The principle of proportionality has its roots in the rule of law, legal safeguards, and guarantees to citizens against abuse, arbitrariness, and excessive use of force. It is more important to prevent overly harsh penalties than to prevent overly lenient ones. The main function of the proportionality principle is, thus, to impose the upper limit that the punishment may never exceed. In this framework, limiting discretion through proportionality is, above all, limiting excess. The normative framework of Scandinavian criminal justice policy—“humane neoclassicism”—stresses both legal safeguards against coercive care and a preference for less repressive measures in general. The key function of criminal law is to produce compliance through norm declaration and reinforcement. People refrain from illegal behavior not because it may be punished but because it is morally blameworthy (or because of force of habit). Criminal law’s goals are best served by a system of sanctions that maintains a moral character and demonstrates the relative blameworthiness of wrongful acts, is perceived to be fair and just, and respects the rights and intrinsic moral value of all parties involved.

The Time-Frame Challenge to Retributivism

Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve. There is, however, an often-ignored debate about whether desert should be assessed across a person’s life (the whole-life view) or only for crimes that are the subject of a current sentencing proceeding (the current-crime view). Both options are unappealing. The whole-life view may be superior on theoretical grounds but is hopelessly impractical. The current-crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality. Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

The Metric of Punishment Severity

The principle of proportionality, a cornerstone of retributive penal philosophy, requires (ceteris paribus) the severity of the punishments imposed to be a function of the seriousness of the crimes committed. This principle cannot be applied without a metric or common denominator to assess whether two impositions of punishment are equal or unequal in severity. To identify such a metric, we must first decide whether it is wholly objective or at least partly subjective, involving an essential reference to the psychological response of whoever is punished. Even when this issue is resolved, no single measure of punishment severity may exist. Instead, all we might be able to say is that a given instance of punishment is more severe along one dimension and less severe along another, with no clear means to specify which is more or less severe, all things considered. This conclusion has potentially grave implications for the adequacy of a retributive theory of punishment that takes desert and proportionality as central. No solution is readily available without a substantial retreat from ideal theory. Perhaps the best way forward is to adopt a deflationary role for proportionality and desert rather than to abandon them altogether.

The Place of Proportionality in Penal Theory

The idea that the severity of punishments ought to be proportionate to the seriousness of crimes is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet in practice, sentencing is an inexact science, and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. The focus on an individualistic, moralized account of criminal law exacerbates these issues both by making proportionality more central than it needs to be in penal theory and by making the metrics harder to determine. An alternative account can be premised on a view of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The questions of metrics and of proportionality appear somewhat differently in such a political theory and in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.

Proportionality and the Seriousness of Crimes

The principle of proportionality presupposes that it is possible to make some sort of scaling of crimes in seriousness. Three theoretical challenges face the comparison of the seriousness of crimes: the “harm specification challenge,” which posits that some crimes do not in any direct way involve harm, while others involve harm to an extent that seems to reach far beyond what can plausibly be attributed to the criminal act that has caused it; the “weighing challenge,” which concerns the question of how different degrees of harm and culpability should be combined in a nonarbitrary manner into an overall assessment of the seriousness of a crime; and the “individualization challenge,” in which one and the same type of crime may affect victims very differently. Three strategies for meeting these challenges are available—that the challenges arise as a result of overtheorization, that one or more can be met by adopting a subjectivist view on criminal offending, and that they can be met by basing the determination of seriousness of standardized judgments of harm—but they are unconvincing. In the absence of proper answers, the challenges constitute a serious problem for the proportionality principle as a retributivist principle of penal distribution.

The Time of Punishment

Increasingly, courts around the world are being required to sentence offenders for crimes committed years or even decades earlier. Prevailing conceptions of harm and culpability change over time. Policymakers concerned with punishment and sentencing should be sensitive to changes in the absolute and relative seriousness of crimes as well as the absolute and relative severity of punishments. Ordinal rankings of offenses have evolved over the past 50 years, as has our understanding of the impact of various sanctions. Issues raised by sentencing for crimes committed much earlier illustrate the need for a time-sensitive approach. Should defendants be sentenced according to standards prevailing at the time of the offense or according to current standards? In a just system, offenders would be judged by the standards prevailing when they took the decision to offend. A time-sensitive approach would apply the sentencing standards of the earlier time yet also consider time-relevant mitigation and aggravation in the subsequent period. The offender’s conduct and the victim’s suffering during the period are both relevant factors. Passage of time often changes our evaluation of the offense and the offender. When this occurs, the nature of the sentence should change. Likewise for long-serving prisoners, whose sentences should be reviewed after years have passed, in case they are no longer deemed proportionate.

Penal Severity and the Modern State

Penal severity in the modern state is best understood in terms of right abridgment, which must be kept parsimonious, proportionate, and nondegrading if sanctions are to remain consistent with respect for the basic moral rights of individuals that is required of everyone, including state officials. Although there is disagreement about which basic moral rights individuals possess, there is enough overlap among the competing views to yield a consensus account of penal severity. For the most part, the state need not and should not be concerned with the ways in which penal sanctions are subjectively experienced by offenders. The modern state is supposed to keep its distance from the internal lives of individuals, instead securing for them the rights that make it possible for them to carve out and live lives of their own choosing. As long as individuals have fair notice of the defensible penal sanctions that await them if they violate the criminal law, they should be understood to have risked the aversive experiences that await them upon criminal conviction.

Is Proportionality in Punishment Possible, and Achievable?

Proportionality theory’s influence is waning. It is beset by challenges. Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists. Others, such as trade-offs between proportionality and crime prevention, relate to real world applications. The big question is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment. My best guess is yes. The lesser question is whether proportionality theory can provide satisfactory answers to core questions about crime seriousness, punishment severity, and links between them. Alas, it cannot. Proportionality theory does, however, support two injunctions with which most people, citizens, scholars, and professionals alike, would say they agree. First, no one should be punished more severely than he or she deserves. Second, all else being equal, people who commit more serious crimes should be punished more severely than people who commit less serious ones, and vice versa. Converting that principled agreement into real-world policies and practices is not easy. The post-Enlightenment values of fairness, equality, justice, and parsimony, however, that underlie proportionality theory, are widely accepted and are likely to remain influential even if punishment paradigms once again shift. Proportionality theory is likely to be eclipsed but not to disappear.