Abstract
The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment (or at least to proportionately-determined upper punishment constraints). In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked.
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Notes
Some theorists would prefer to refer to such theories as “constrained consequentialist” theories. For the purpose of this article, a discussion of what constitutes the most appropriate terminology is not important.
In the following, the “desert object” will be used to denote what an offender deserves from having committed a crime. However, as we will see below, the reasons clarifying precisely what it is an offender ultimately deserves need not exclusively refer to considerations of desert. What is important, however, is that even if the specification and justification of the desert object also draws on some supplementary reasons that are not per se narrowly desert-based, the satisfaction of the two requirements outlined here will still be crucial for the retributivist argument in favour of proportionality.
For instance, retributivists would usually hold that the suffering should be imposed in a certain way or by certain parties. Whether the Necessity Requirement would be satisfied by such more comprehensive interpretations of the desert object is not something that will be discussed in the following.
An explicit formulation of this argument is given by von Hirsch who holds that: “1. The State’s sanction against proscribed conduct should take a punitive form; that is, visit deprivation 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. 10).
For a more general discussion of the various interpretations, see also Ryberg (2004).
Alternatively, if we imagine a situation where O1 had no incentive whatever to engage in future criminal activity, then it follows that, according to von Hirsch’s theory, he or she should not be punished at all. Even though the offender should be censured for having committed a crime, this should not take the form of the imposition of hard treatment.
For such an example, see Ryberg 2004, p. 31.
Whether one can know this in advance—that is, when the sentence is imposed—is of course another question. But this does not affect the main point. If one did not know in advance, but finds out that O1 has been fully reformed after six months, then he or she could be released while what remains of the censure process is initiated.
This point is made by Lucas who underlines that, even though the point of punishment “is to make them [the offenders] understand that the reprimand is really meant”, some kind of formal disapproval will not be sufficient because “some people are too hardened to care much … on their scale of values they will have got away with it, unless the reprimand is given tangible forms in terms which are meaningful to them. Words mean little” (Lucas 1980, p. 133).
It might perhaps be objected that if the extra censure that is conveyed to O1 is communicated in ways not involving hard treatment, then O1 might still not believe that this part of the condemnatory message is seriously meant. However, in order to satisfy the necessity requirement, the expressionist will have to show that it can never be the case that an offender, such as O1, would believe that all the censure that is conveyed is really meant. As already noted, this is an empirical question and one that seems hard to sustain.
See also Ryberg (2004, pp. 33–35).
Another example of an influential retributivist theory that involves a distinction between desert object and punishment is the fairness theory (or unfair advantage theory) according to which an offender deserves a disadvantage that corresponds in magnitude to the advantage the offender has acquired from breaking the law. This disadvantage is inflicted on the offender via the imposition of a punishment. For a critical discussion of why this theory fails to justify proportionality, see e.g. Ryberg 2004.
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Ryberg, J. Retributivism and the (Lack of) Justification of Proportionality. Criminal Law, Philosophy 15, 447–462 (2021). https://doi.org/10.1007/s11572-021-09579-4
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DOI: https://doi.org/10.1007/s11572-021-09579-4