The Metric of Punishment Severity

Abstract

The principle of proportionality, a cornerstone of retributive penal philosophy, requires (ceteris paribus) the severity of the punishments imposed to be a function of the seriousness of the crimes committed. This principle cannot be applied without a metric or common denominator to assess whether two impositions of punishment are equal or unequal in severity. To identify such a metric, we must first decide whether it is wholly objective or at least partly subjective, involving an essential reference to the psychological response of whoever is punished. Even when this issue is resolved, no single measure of punishment severity may exist. Instead, all we might be able to say is that a given instance of punishment is more severe along one dimension and less severe along another, with no clear means to specify which is more or less severe, all things considered. This conclusion has potentially grave implications for the adequacy of a retributive theory of punishment that takes desert and proportionality as central. No solution is readily available without a substantial retreat from ideal theory. Perhaps the best way forward is to adopt a deflationary role for proportionality and desert rather than to abandon them altogether.