Efforts to apply the principle of proportionality to criminal sentences are notoriously problematic. But even though they are daunting, only a few legal philosophers believe we should give up trying to do so. Perhaps we can make progress overcoming some of the many legal difficulties by attending to how the principle is applied in non-legal contexts—that is, in contexts I call personal life. Proportionality, I believe, is an attractive principle in penal sentencing because it is an attractive principle in ordinary situations in which persons are sanctioned for wrongdoing. I briefly mention several familiar non-legal contexts in which sanctions have recently been imposed on celebrities or public figures for real or perceived wrongdoing. My hope is that sensitivity to how the principle of proportionality is interpreted in these contexts might facilitate efforts to apply this principle to sentencing domains. At first glance, proportionality as applied in non-legal contexts appears to differ from its penal analogue. I describe some of these alleged differences. Among the foremost is that judgments of proportionality in personal life often respond to how the transgressor has behaved apart from the particular incident that has attracted media attention. Penal sanctions, by contrast, are said to be imposed only for the particular crime(s) charged. I argue that this difference is more apparent than real. I conclude that we can reach a few modest insights about how to apply the principle of proportionality in criminal sentencing by attending to its counterpart in personal life.
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See Jesper Ryberg: “Proportionality and the Seriousness of Crimes,” in Michael Tonry, ed.: Of One-Eyed and Toothless Micscreants: Making the Punishment Fit the Crime? (Oxford: Oxford University Press, 2020), p. 51, and Douglas Husak: “The Metric of Punishment Severity: A Puzzle about the Principle of Proportionality.” Id., p. 97.
Justice Scalia famously remarked that proportionality is inherently tied to retributive penal theory and becomes unintelligible in the context of deterrence and rehabilitation. See Harmelin v. Michigan, 501 U.S. 957, 989 (1990).
See Douglas Husak: “Already Punished Enough,” in Douglas Husak, ed.: The Philosophy of Criminal Law (Oxford: Oxford University Press, 2010), p. 433.
According to Michael Tonry, these problems about proportionality “portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment.” See his “Is Proportionality in Punishment Possible, and Achievable?” in Tonry, ed., p. 1.
For example, see Nicola Lacey and Hanna Pickard: “The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems,” 78 Modern Law Review 216 (2015).
A possible exception might include Larry Laudan: The Law’s Flaws: Rethinking Trials and Errors? (London: College Publications, 2016). Many readers regard Laudan’s positions as a reductio of the consequentialist tradition he invokes to defend them.
See the essays in Julian V. Roberts, J.W.de Keijser and Jasper Ryberg, eds.: Predictive Sentencing: Normative and Empirical Perspectives (Oxford: Hart Pub. Co., 2019). See also Christopher Lewis: “Mass Incarceration, Risk, and the Principles of Punishment,” (forthcoming).
Paul H. Robinson and John M. Darley: Justice, Liability and Blame: Community Views and the Criminal Law (1995).
Not everyone agrees. For sweeping critiques of proportionality in a wide variety of domains, see Francisco J. Urbina: A Critique of Proportionality and Balancing (Cambridge: Cambridge University Press, 2018).
See Jae Lee in Kimberly K. Ferzan and Larry Alexander, eds.: The Palgrave Handbook of Applied Ethics and the Criminal Law (Palgrave, 2019), p. 549.
Courts have made greater efforts to apply proportionality principles to issues of bail and punitive damage awards than to issues of sentencing. See E. Thomas Sullivan and Richard E. Frase: Proportionality Principles in American Law (Oxford: Oxford University Press, 2009), esp. p. 68 and 103.
The most important exception is Solem v. Helm, 463 U.S. 277 (1983). For a discussion of the Eighth Amendment and proportionality, see Meghan Ryan and William W. Berry III: The Eighth Amendment and Its Future in a New Age of Punishment (Cambridge: Cambridge University Press, 2020).
See Carol S. Steiker and Jordan M. Steiker: “The American Death Penalty: Alternative Model for Ordinary Criminal Justice or Exception that Justifies the Rule?” 23 New Criminal Law Review 359 (2019).
See John Gardner: From Personal Life to Private Law (Oxford: Oxford University Press, 2018).
Id., p. 8.
See Christopher Bennett: The Apology Ritual (Cambridge: Cambridge University Press, 2008); and Linda Radzik: “Moral Rebukes and Social Avoidance,” 48 Journal of Value Inquiry (2014).
For a defense of this claim, see Leo Zaibert: Punishment and Retribution (Burlington, Vt.: Ashgate, 2006).
The most well-known definition of punishment, that offered by H.L.A. Hart, famously requires that “central cases” of punishment “must be imposed and administered by an authority constituted by a legal system.” For a general critique, see Douglas Husak: “A Framework for Punishment: What is the Insight of Hart’s ‘Prolegomenon?’” in C.G. Pulman, ed.: Hart on Responsibility (New York: Palgrave MacMillan, 2014), p. 91.
Even kindergarten children appear to make judgments of blame by applying principles of proportionality. See Norman J. Finkel: “Commonsense Justice, Culpability and Punishment,” 28 Hofstra Law Review 669 (2000).
See Andrew von Hirsch: Past or Future Crimes (New Brunswick: Rutgers University Press, 1985).
See Lacey and Pickard: Op. Cit. Note 5.
See Andrew von Hirsch: “Proportionality in the Philosophy of Punishment,” 16 Crime and Justice 55 (1992).
See Matt Matravers: “Proportionality Theory and Popular Opinion,” in Jesper Ryberg and Julian V. Roberts, eds.: Popular Punishment: On the Normative Significance of Public Opinion (New York: Oxford University Press, 2014. p. 33.
Some of these issues are nicely explored in Mitchell N. Berman: “’Let ‘em Play” A Study in the Jurisprudence of Sport,” 99 Georgetown Law Journal 1325 (2011).
See Armando Lara-Millan: “Public Emergency Room Overcrowding in the Era of Mass Imprisonment,” 79 American Sociological Review 871 (2014).
This generalization also applies to law, even when defendants are not sentenced for wrongdoing. In her exhaustive study of how the criminal justice system deals with the mass of persons who commit misdemeanors, Issa Kohler-Hausmann describes how what she calls “heuristics of desert” are invoked by legal officials to identify and monitor the petty offenders who are believed to be most in need of social control. Issa Kohler-Hausmann: Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (Princeton: Princeton University Press, 2018), p. 120.
See Paul H. Robinson and Sarah M. Robinson: Shadow Vigilantes (Amherst, N.Y.: Prometheus Books, 2018).
See Jan w. de Keijser: “Penal Theory and Popular Opinion: The Deficiencies of Direct Engagement,” in Ryberg and Roberts, op. cit. Note 23, p. 101.
My second example involves two different public figures, but I have a clear motive for treating them together.
Associated Press: “Trump Says NFL Should Fire Players Who Kneel During National Anthem,” (September 22, 2017): http://www.latimes.com/nation/nationnow/la-na-trump-nfl-anthem-20170922-story.html.
Kyle Wagner: “Colin Kaepernick Is Not Supposed to be Unemployed,” FiveThirtyEight (August 9, 2017): https://fivethirtyeight.com/features/colin-kaepernick-is-not-supposed-to-be-unemployed/.
Wikipedia: “Colin Kaepernick”: https://en.wikipedia.org/wiki/Colin_Kaepernick#Controversy_over_free_agency.
Bret Stephens: “The Outrage over Sarah Jeong,” New York Times (August 9, 2018).
James Hibberd: “Roseanne Barr firing: Was it really just ‘one bad tweet’?” Entertainment (May 31, 2018): http://ew.com/tv/2018/05/31/roseanne-one-bad-tweet/.
Jeremy Barr: “Samantha Bee to Get More TBS Oversight After Ivanka Trump Slur,” Hollywood Reporter (June 6, 2018): https://www.hollywoodreporter.com/live-feed/samantha-bee-get-more-tbs-oversight-ivanka-trump-slur-1117430.
Tierney Mcaffe: “Trump Says Sam Bee Should be Fired for Ivanka Comments but Twitter Argues: ‘Why Aren’t they Firing You?’” People (June 1, 2018): http://ew.com/tv/2018/05/31/roseanne-one-bad-tweet/.
S.L. Price: “Prospect and Pariah,” Sports Illustrated (May 21, 2018), p. 31.
Elizabeth Letourneau: https://twitter.com/JohnsHopkinsSPH?lang=en.
James Wagner: “Heimlich Is Signed by a Team in Mexico,” The New York Times (Friday, March 8, 2019), p. B11.
Wikipedia: Al Franken: https://en.wikipedia.org/wiki/Al_Franken#Sexual_misconduct_allegations.
Jane Mayer: “The Case of Al Franken,” The New Yorker (July 29, 2019), p. 30. According to Mayer, seven of Franken’s Senate colleagues subsequently expressed regret about their position.
Id., p. 45.
The flood of issues involving the #MeToo movement would provide an endless source of additional data.
Admittedly, Luke Hamelin is not a cause celeb on the level of the other three public figures.
See Douglas Husak: “What is Legal about Legal Moralism?” 54 San Diego Law Review 381 (2017).
For further thoughts on the importance of notice to the case for justified punishment, see Douglas Husak: Ignorance of Law (Oxford: Oxford University Press, 2016).
See Radzik: Op, Cit. Note 15.
See Zachary Hoskins: Collateral Consequences (Oxford: Oxford University Press, 2018).
See Justice Center: National Inventory of the Collateral Consequences of Conviction, https://niccc.csgjusticecenter.org/.
See James B. Jacobs: The Eternal Criminal Record (Cambridge: Harvard University Press, 2015).
TCR Staff: “Ex-Inmate Jobless Rate Five Times Higher Than National Average,” The Crime Report (July 10, 2018): https://thecrimereport.org/2018/07/10/ex-inmate-jobless-rate-five-times-higher-than-population/.
See Gabriel J. Chin: “Collateral Consequences,” in Eric Luna, ed.: Reforming Criminal Justice (Phoenix: The Academy of Justice, Vol. IV, 2017), p. 371.
For example, see the attitude toward imprisonment adopted by Henry David Thoreau: “Civil Disobedience” in The Writings of Henry David Thoreau. (New York: AMS Press, 1968).
One commentator writes: ‘It is impossible to punish some people, for if they are completely alien or sufficiently alienated, they cannot be disgraced and they welcome rather than fear ostracism.” Andrew Oldenquist: “An Explanation of Retribution.” 85 Journal of Philosophy 468, 469 (1988).
Kohler-Haumann: Op. Cit. Note 26.
Id., p. 148.
These and related questions have generated a lively dispute. See, for example, Brian Leiter: “Academic Ethics: What Should We Do to Sexual Harassers in Academe?” Chronicle of Higher Education (September 19, 2016). https://www.chronicle.com/article/Academic-Ethics-What-Should/237821.
See Radzik: Op. Cit. Note 16.
For a discussion of public perception versus empirical reality, see Tamara Rice Lave and Franklin E. Zimring: “Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data,” 55 American Criminal Law Review 705 (2018).
For example, see Andrew Von Hirsch and Andrew Ashworth: Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2006).
Although the view can be traced to W.D. Ross, see W.A. Parent: “The Whole Life View of Criminal Desert, 86 Ethics 350 (1976). Von Hirsch and Ashworth label this as a “career-desert” perspective. Id., p. 150.
Adam J. Kolber: “The Time Frame Challenge to Retributivism,” in Michael Tonry, ed.: Of One-Eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Oxford: Oxford University Press, 2019).
Although Kolber presents this absurdity as a reductio of retributivism, it is unclear why it is not equally trenchant against his preferred alternative of consequentialism. If a defendant is able to produce enough future good when unpunished, any punishment imposed would be counterproductive and thus consequentially unjustified.
Since jail is literally not a permissible punishment* for wrongdoers in personal life, it might be better to apply a second asterisk and ask whether persons who bank many good deeds should be awarded a “get-out-of-jail*-free” card.
For a dizzying set of possibilities for how desert relates to a desert base, see Shelly Kagan: The Geometry of Desert (Oxford: Oxford University Press, 2012).
Kohler-Hausmann: Op. Cit. Note 26. She calls this phenomenon as “the additive imperative.”
See Jacobs: Op. Cit. Note 50.
See Douglas Husak: “Criminal Law at the Margins,” 14 Criminal Law and Philosophy 381 (2019).
See Apprendi v. New Jersey, 530 U.S. 466 (2000) as well as its progeny.
To be sure, many other explanations can be offered, especially when multiple charges are brought against a defendant. For a sampling of alternatives, see the essays in Jesper Ryberg, Julian V. Roberts, and Jan W. De Keiser, eds.: Sentencing Multiple Crimes (Oxford: Oxford University Press, 2018).
For some intriguing suggestions, see Frederick Schauer: “Sanctions for Acts or Sanctions for Actors?” (forthcoming): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3212111.
In order to show proper deference to the particular punishment inflicted by the state, Justice O’Connor, for example, indicates that the Court should take into account the criminal record of the defendant. Ewing v. California, 538 U.S. 11, 29–30 (2003).
See Julian V. Roberts and Andrew von Hirsch, eds.: Previous Convictions at Sentencing: Theoretical and Applied Perspectives (Oxford: Hart Pub.Co., 2010).
See Rhys Hester, et.al., eds.: “Prior Record Enhancements at Sentencing: Unsettled Justifications and Unsettling Consequences,” in Michael Tonry, ed.: 47 Crime and Justice: A Review of Research (Chicago: University of Chicago Press, 2018), p. 209. See also Christopher Lewis: “Inequality, Incentives, Criminality, and Blame,” 22 Legal Theory 153 (2016).
Andrew von Hirsch: “Proportionality and the Progressive Loss of Mitigation: Some Further Reflections,” in Roberts and von Hirsch, eds., Op. Cit. Note 74, p. 1.
Thanks to participants in the Georgetown Symposium on Proportionality. I owe a special debt to Mitch Berman.
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Husak, D. Proportionality in Personal Life. Criminal Law, Philosophy (2021). https://doi.org/10.1007/s11572-021-09562-z
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