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Proportionality and Its Discontents

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Abstract

In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view it may be important for a system of punishment to be proportionate, proportionality does not identify a uniquely important retributive value. I motivate the argument for a deflationary account of proportionality by canvassing some of the problems associated with both relative (“ordinal”) and absolute (“cardinal”) proportionality and examining how both legal theorists and courts have actually used the concept. I focus on the work of Doug Husak, and the jurisprudence of the Supreme Court of Canada.

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Notes

  1. Overcriminalization: The Limits of the Criminal Law (Oxford UP 2008), p. 83.

  2. Not all genuflect; see, notably, N. Lacey and H. Pickard, “The Chimera of Proportionality,” Modern Law Review 78(2) (2015), pp. 216–240; A. Kolber, “Against Proportional Punishment,” Vanderbilt Law Review 66(4) (2013), pp. 1141–1179; J. Ryberg, The Ethics of Proportionate Punishment (Kluwer 2004).

  3. D. Husak, “The Metric of Punishment Severity: A Puzzle About the Principle of Proportionality,” in Of One-Eyed and Toothless Miscreants, M. Tonry, ed. (Oxford UP 2019), pp. 97–126, at p. 120.

  4. Id. at 122.

  5. Ryberg, “Proportionality and the Seriousness of Crimes,” in Of One-Eyed and Toothless Miscreants, M. Tonry, ed. (Oxford UP 2019), pp. 51–75, at p. 71; M. Tonry, “Is Proportionality in Punishment Possible, and Achievable?,” in Of One-Eyed and Toothless Miscreants, M. Tonry, ed. (Oxford UP 2019), pp. 1–29, at p. 4; M. Matravers, “The Place of Proportionality in Penal Theory: On Rethinking Thinking About Punishment,” p. 77; G. Duus-Otterström, “Weighing Relative and Absolute Proportionality in Punishment,” in Of One-Eyed and Toothless Miscreants, M. Tonry, ed. (Oxford UP 2019), pp. 76–96, at p. 48; Husak, Ignorance of Law (Oxford UP 2016), p. 11, 159; K. Wellman, “The Rights Forfeiture Theory of Punishment,” Ethics 122(2) (2012), pp. 386–387.

  6. See “Weighing Relative and Absolute Proportionality in Punishment,” p. 34. Duus-Otterström’s presentation of these issues is particularly lucid.

  7. A system of punishment might be absolutely disproportionate, but only in virtue of each of its instances being absolutely disproportionate.

  8. J. Braithwaite & P. Pettit, Not Just Deserts (Oxford UP 1992), p. 46.

  9. Duus-Otterström, “Weighing Relative and Absolute Proportionality in Punishment,” p. 31.

  10. A. Walen, “Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model,” Criminal Law and Philosophy 14 (2020), p. 442. See also M. Kramer, The Ethics of Capital Punishment (Oxford UP 2011), p. 75.

  11. Ryberg, The Ethics of Proportionate Punishment, p. 124.

  12. A. von Hirsch, “Proportionality in the Philosophy of Punishment,” Crime & Justice 16 (1992), pp. 55–98, at p. 94.

  13. Von Hirsch and A. Ashworth, Proportionate Sentencing (Oxford UP 2005), ch. 9.

  14. Ryberg, The Ethics of Proportionate Punishment, pp. 129, 142.

  15. Consider von Hirsch’s claim that proportionality means that people “convicted of crimes of comparable seriousness should receive punishments of comparable severity,” and those who are “convicted of crimes of differing gravity should suffer punishments correspondingly graded in their onerousness.” “Proportionality in the Philosophy of Punishment,” p. 76. Whether we need a ratio or interval scale depends on how we interpret “correspondingly.”

  16. But see T. Sellin & M.E. Wolfgang, The Measurement of Delinquency (Wiley 1964).

  17. R. Nozick, Philosophical Explanations (Harvard UP 1981), p. 363. For discussion, see Ryberg, “Proportionality and the Seriousness of Crimes.”

  18. A. von Hirsch, “Proportionate Sentences: A Desert Perspective,” in Why Punish? How Much?, M. Tonry, ed. (Oxford UP 2011), p. 212.

  19. Kolber, “The Comparative Nature of Punishment,” Boston University Law Review 89 (2009), pp. 1565–1610; Kolber, “The Subjective Experience of Punishment,” Columbia Law Review 109 (2009), pp. 182–236; Kolber, “Against Proportional Punishment,” Vanderbilt Law Review 66 (2013), pp. 1141–1179; Kolber, “The Subjectivist Critique of Proportionality,” in The Palgrave Handbook of Applied Ethics and the Criminal Law, L. Alexander & K.K. Ferzan, eds. (Palgrave 2019), pp. 571–595; Ryberg, The Ethics of Proportionate Punishment, ch. 3. See also Husak, “The Metric of Punishment Severity” and R. Lippke, “Penal Severity and the Modern State,” in Of One-Eyed and Toothless Miscreants, M. Tonry, ed. (Oxford UP 2019), pp. 127–148. I have defended a capabilities approach to assess punishment severity: see Chiao, Criminal Law in the Age of the Administrative State (Oxford UP 2018), ch. 6.

  20. Though see A. von Hirsch & N. Jareborg, “Gauging Criminal Harm: A Living Standard Analysis,” Oxford Journal of Legal Studies 11 (1991), pp. 1–38; summarized in von Hirsch, Deserved Criminal Sentences (Hart 2017), pp. 63–67. Ryberg, The Ethics of Proportionate Punishment, ch. 2, provides a critique of von Hirsch and Jareborg. For a criminological analysis, see V.A. Greenfield & L. Paoli, “A Framework to Assess the Harms of Crimes,” British Journal of Criminology 53(5) (2013), pp. 864–885. Greenfield and Paoli’s approach, while clearly an advance over purely intuitive judgments, is unsuited for the purposes of interval scale proportionality because it operates entirely along ordinal scales.

  21. Von Hirsch and Ashworth, Proportionate Sentencing; Y. Lee, “Recidivism as Omission: A Relational Account,” Texas Law Review 87 (2008), pp. 571–622; Y. Lee, “Proportionality in Punishment,” The Palgrave Handbook of Applied Ethics and the Criminal Law, L. Alexander & K.K. Ferzan, eds. (Palgrave 2019), pp. 549–569; Sentencing Multiple Crimes, J. Ryberg, J. Roberts & J.W. de Keijser, eds. (Oxford UP 2017).

  22. Ryberg, “Proportionality and the Seriousness of Crimes,” pp. 56–57; Ryberg, The Ethics of Proportionate Punishment, ch. 2.

  23. Z. Hoskins, Beyond Punishment? (Oxford UP 2019). For defense of a broad selection criterion, see Chiao, Criminal Law in the Age of the Administrative State, ch. 6.

  24. This is known in the literature as the “anchoring” problem. See von Hirsch, Deserved Criminal Sentences, pp. 59–60; Duus-Otterström, “Weighing Relative and Absolute Proportionality in Punishment,” p. 34. Note that ratio scale proportionality would not face this problem since a ratio scale has a defined zero point.

  25. Kramer, The Ethics of Capital Punishment, p. 59.

  26. See Lacey and Pickard, “The Chimera of Proportionality,” p. 227.

  27. Tonry, “Is Proportionality in Punishment Possible?,” pp. 4, 20; Lee, “Why Proportionality Matters,” University of Pennsylvania Law Review 160 (2012), pp. 1835–1852, 1844. Wellman, “The Rights Forfeiture Theory of Punishment,” pp. 386–387; Husak, Overcriminalization, p. 14. Lex talionis is, of course, the exception to this rule, although it is a theory no one actually defends, with the exception (in modified form) of Jeremy Waldron. See “Lex Talionis,” Arizona Law Review 34 (1992), pp. 25–52.

  28. Matravers, “Proportionality Theory and Popular Opinion,” in Popular Punishment, J. Ryberg & J.V. Roberts, eds. (Oxford UP 2014), pp. 33–53, at p. 42. For a discussion of the state of play in contemporary philosophical discussions of capital punishment, see see my “Capital Punishment and the Owl of Minerva,” in The Handbook of Applied Ethics and Criminal Law, L Alexander & K Ferzan, eds. (Palgrave 2019), pp. 241–261.

  29. One might suggest that other concepts, such as degradation or dignity, might be used to resolve this dispute. Maybe; but if so this would be further evidence that the concept of proportionality does not explain very much.

  30. P. Robinson, Intuitions of Justice and the Utility of Desert (Oxford UP 2013), chs. 2, 16.

  31. J. Simon, Governing Through Crime (Oxford UP 2007). For a principled argument in favor of considering public attitudes in theorizing about criminal justice, see Ryberg, “Penal Theory, Moral Intuitions, and Public Opinion,” in Popular Punishment, Ryberg & J.V. Roberts, eds. (Oxford UP 2014), pp. 14–32.

  32. My thanks to Heidi Hurd for stressing this point to me.

  33. E. Durkheim, The Division of Labor in Society (Free Press 2014); N. Elias, The Civilizing Process 2d ed. (Wiley-Blackwell 2000); more recently, D. Braman, D.M. Kahan & D.A. Hoffman, “Some Realism about Punishment Naturalism,” University of Chicago Law Review 77(4) (2010), pp. 1531–1609.

  34. P. Moskos, In Defense of Flogging (Basic Books 2011).

  35. “The Chimera of Proportionality,” pp. 228–229, 232–233.

  36. Id. at 229. The most influential expositor of a view of punishment as grounded in communal norms is Antony Duff. Duff has recognized the problem that the dissentient poses for a thickly ethical view of crime and punishment. See Duff, The Realm of Criminal Law (Oxford UP 2019), ch. 3.

  37. See e.g., Trop v. Dulles, 356 U.S. 86 (1958); Coker v. Georgia, 433 U.S. 592 (1977); Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005); Kennedy v. Louisiana, 554 U.S. 407 (2008); see also Lawrence v. Texas, 539 U.S. 558 (2003). Sometimes the Supreme Court draws on notions of relative culpability; see e.g., Enmund v. Florida, 458 U.S. 782 (1982) (comparing the culpability for robbery to that of murder), and Atkins (comparing the culpability of mentally disabled individuals to people of normal mental function). For discussion, see Lee, “Why Proportionality Matters,” pp. 1841–1843.

  38. I defend the evolving standards approach in “Capital Punishment and the Owl of Minerva,” supra note 28.

  39. See, e.g., “Already Punished Enough,” in Husak, The Philosophy of Criminal Law (Oxford UP 2010), p. 436; “Why Legal Philosophers Should Be Less Resistant to Risk-Based Sentencing,” in Predictive Sentencing: Normative and Empirical Perspectives, J.W. de Keijser, J.V. Roberts, J. Ryberg, eds. (Hart 2019), pp. 33–49, at p. 43; “The Metric of Punishment Severity,” p. 97.

  40. See, e.g., “Mistake of Law and Punishment,” in The Philosophy of Criminal Law, supra note 39, at p. 260; “Already Punished Enough,” p. 436. See also Walen, “Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model,” p. 440.

  41. Husak, “The Metric of Punishment Severity.”

  42. Overcriminalization, p. 14; see also Ignorance of Law, p. 11.

  43. “Strict Liability, Justice and Proportionality,” in The Philosophy of Criminal Law, supra note 39, at 169.

  44. “The Metric of Punishment Severity,” p. 120.

  45. Husak discusses the Rodriguez case in “Strict Liability, Justice and Proportionality,” in The Philosophy of Criminal Law; as well as in Overcriminalization, p. 46.

  46. “Strict Liability, Justice and Proportionality,” p. 168.

  47. “Malum Prohibitum and Retributivism,” in The Philosophy of Criminal Law, supra note 39, at 424.

  48. Overcriminalization, p. 75; “Strict Liability, Justice and Proportionality,” p. 169.

  49. Husak has appealed to proportionality as a reason for resisting indeterminate and exemplary sentencing: see “Already Punished Enough,” p. 436. It may be an open question how committed Husak remains to this view, given his more recent concessions to the significance of non-desert related factors in sentencing. See “The Metric of Punishment Severity.”

  50. Overcriminalization, p. 122.

  51. There are probably many reasons for the diverging approaches. Prime among them may be that criminal law is federal law in Canada, meaning that the Court does not need to respect the sentencing decisions of politically independent states/provinces.

  52. I emphasize that I am concerned with proportionality in punishment, rather than the more general concept of proportionality in constitutional law, for instance in gauging rights violations under s.1 of the Charter of Rights and Freedoms.

  53. R v Smith [1978] 1 S.C.R. 1045, para. 2.

  54. R v Nur, [2015] 1 SCR 773; R v Lloyd, [2016] 1 SCR 130, R v Morrissey, [2000] 2 SCR 90.

  55. R v Lloyd, paras. 32–33.

  56. R v Nur, para. 82.

  57. R v Morrissey, paras. 51–53.

  58. Smith, para. 56.

  59. R v Nur, 2013 ONCA 677, para. 78; see also R v Morrissey, [2000] 2 SCR 90, paras. 35ff.

  60. “Criminal Law and Penal Law,” p. 442. See also von Hirsch, “Proportionality in the Philosophy of Punishment,” pp. 36–37 and von Hirsch, Deserved Criminal Sentences, p. 57. Von Hirsch criticizes the consequentialist approaches of Bentham and Posner precisely because they are sensitive to deterrence, although Bentham, at least, understood himself to be defending proportionality: see An Introduction to the Principles of Morals and Legislation, J.H. Burns & H.L.A. Hart, eds. (Oxford UP 1970), ch. 14 (“Of the Proportion Between Punishment and Offences.”) Compare Kramer, The Ethics of Capital Punishment, p. 76.

  61. R v McDonnell, (1997), 6 CR (5th) 231 (SCC).

  62. Von Hirsch, Deserved Criminal Sentences, pp. 4–7, 15–16, 56–57.

  63. Von Hirsch, Deserved Criminal Sentences, p. 12 (“… purely or primarily discretionary sentencing approaches, which leave it up to individual sentencing judges to decide what sentencing aims to pursue and how much punishment to impose, should have no place in a penal system that is governed by the rule of law.”)

  64. Ewing v. California, 538 U.S. 11, 43–47 (2003) (Breyer J, dissenting).

  65. This is often how actual sentencing commissions work. For instance, the Sentencing Commission of England and Wales is expressly required to consider existing sentencing practice in formulating guidelines. See Coroners and Justice Act 2009 c.25, §120(11). The American Federal Sentencing Guidelines were also intended to systematize past sentencing practice, although the degree to which they in fact did so is a matter of some dispute. See K. Stith and J. Cabranes, Fear of Judging (University of Chicago Press 1998), pp. 59ff.

  66. My thanks to Patrick Tomlin for encouraging me to consider this line of objection.

  67. “Why Proportionality Matters,” p. 1837; “Proportionality in Punishment,” in The Palgrave Handbook of Applied Ethics and the Criminal Law, L. Alexander & K.K. Ferzan, eds. (Palgrave 2019), pp. 549–569, 554. See also J. Gardner, “Crime: In Perspective and In Proportion,” in Offences and Defences (Oxford UP 2007).

  68. But could the cost–benefit analysis come out that way, even when we take into account the cost of undermining public faith in the justice system? Maybe, but this would suggest a social world in which tolerance of petty theft had become grossly maladaptive.

  69. See J. Henrich, The Secret of Our Success (Princeton 2018).

  70. Von Hirsch believes that although absolute proportionality is largely conventional, nevertheless it can rule out draconian punishment schemes on a priori grounds. He argues that overly harsh punishments would crowd out a punishment’s power to express censure and can be ruled out on that basis. This argument is not persuasive, given that what strikes someone (for instance, von Hirsch) as so draconian as to crowd out censure may strike someone else as a perfectly conventional way of expressing censure. It is unclear how we can resolve that kind of disagreement on purely a priori grounds. On this point, see Matravers, “Proportionality Theory and Popular Opinion,” pp. 37ff.

  71. Husak, “The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law,” New Criminal Law Review 23(1) (2020), pp. 27–59, at p. 48.

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    Vincent Chiao

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Chiao, V. Proportionality and Its Discontents. Law and Philos 41, 193–217 (2022). https://doi.org/10.1007/s10982-021-09423-9

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