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Tuesday, April 16, 2013

A Challenge to Strict Proportional Punishment

Consider two people who engaged in the same violent offense and are equally blameworthy for doing so. Assume they are alike in all pertinent respects except that one of them is known to be much more prone to violence. For those strictly committed to proportionality, these offenders should be punished equally because they committed the same offense with the same blameworthiness, and the theorists I am addressing ignore consequentialist considerations like future violence.

When we assign these offenders to prisons, however, the offender known to be more violent is likely to end up in a facility that allows less freedom and causes more distress. Whether we measure punishment severity in terms of bad experiences, liberty deprivations, or both, the more violent offender has a more severe punishment per day incarcerated.

How long should they be incarcerated in order to punish them equally? Giving them an equal number of days in prison does not give them equal punishment since each day is worse for the more violent offender. What strict proportionalists would have to do is give the more violent offender a shorter sentence in order to treat both offenders equally. This seems like a very unappealing conclusion: the more dangerous you are, the more we have to restrict you in prison, and the more quickly we have to release you relative to equally blameworthy but less dangerous offenders.

Proportionalists could try to put offenders in identical prison conditions, but doing so is extraordinarily impractical. Even if we could, I doubt most people think it is morally required. Alternatively, proportionalists could argue that so long as we intend to give both offenders equal punishments, then we have satisfied the requirement of proportionality even if we know one offender will get more harsh treatment. But that's an unduly restrictive view about intentions. In the rest of the criminal law (and in moral contexts more generally), we deem people responsible for actions they do knowingly and not just on purpose. The same principle applies to judges and the state more generally. If we are virtually certain more violent offenders will be more restricted in their liberty, we cannot artificially ignore this fact and declare by fiat that it's not part of their punishment. Surely we wouldn't say that a prisoner with a two-year sentence is punished the same amount as a prisoner with a four-year sentence if we declare that we only intend to punish the latter prisoner on even days of the month.

Therefore, even though proportional punishment is trumpeted as central to modern criminal justice and may seem like an ideal goal, when looked at more closely, it has some very unappealing implications.

Posted by Adam Kolber on April 16, 2013 at 09:59 AM | Permalink


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How do proportionalists analyze the following hypothetical without taking into consideration dangerousness? Two 15-year-olds commit identical crimes. In the case of Juvenile 1 a psychiatrist testifies that the minor's standardized psychological tests indicate a propensity to dangerousness and that, therefore, it is not probable that he is amenable to the rehabilitative services of the juvenile court. Juvenile 1 is transferred to adult court where he is convicted and sent to an adult facility lacking any of the rehabilitative services available at the juvenile facility. Juvenile 2 is found amenable to the rehabilitative service of the juvenile court, his delinquency petition is sustained, and he is housed in a juvenile facility which has tremendous rehabilitative and educational opportunities. Each juvenile's length of incarceration is identical. Is Juvenile 1 more culpable than Juvenile 2? If not, would the proportionalist object to the different treatment during the two sentences?

Posted by: Bill Patton | Apr 16, 2013 11:12:07 AM

This is an interesting question, Bill, and one to which I probably don't have a good answer. Many people think that juvenile justice is not a retributive endeavor at all. So they will have to somehow demarcate when a person deserves a retributive response and when they don't. I suspect they would say that if 1 and 2 in your example are both fitting subjects for retributive punishment and are equally blameworthy, then they ought to receive the same punishment. But they might also deny that either deserves retributive punishment. Maybe someone who holds a strict view of proportionality will chime in on the relationship between juvenile justice and adult justice.

Posted by: Adam Kolber | Apr 16, 2013 11:37:05 AM

Adam is right in his response to Bill. I've developed the outlines of that argument in a piece about whether minors can constitutionally or normatively be punished (as opposed to disciplined/treated):

Posted by: Dan Markel | Apr 16, 2013 11:53:57 AM

Thanks, Dan! For some reason Typepad didn't alert me to your comment. But I just noticed it...

Posted by: Adam Kolber | Apr 17, 2013 5:52:00 AM

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