Is Proportionality in Punishment Possible, and Achievable?

Abstract

Proportionality theory’s influence is waning. It is beset by challenges. Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists. Others, such as trade-offs between proportionality and crime prevention, relate to real world applications. The big question is whether the challenges are epiphenomenal and portend displacement of retribution as the most intellectually influential normative frame of reference for thinking about punishment. My best guess is yes. The lesser question is whether proportionality theory can provide satisfactory answers to core questions about crime seriousness, punishment severity, and links between them. Alas, it cannot. Proportionality theory does, however, support two injunctions with which most people, citizens, scholars, and professionals alike, would say they agree. First, no one should be punished more severely than he or she deserves. Second, all else being equal, people who commit more serious crimes should be punished more severely than people who commit less serious ones, and vice versa. Converting that principled agreement into real-world policies and practices is not easy. The post-Enlightenment values of fairness, equality, justice, and parsimony, however, that underlie proportionality theory, are widely accepted and are likely to remain influential even if punishment paradigms once again shift. Proportionality theory is likely to be eclipsed but not to disappear.