Proportionality and the Seriousness of Crimes

Abstract

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.