Academic journal article Iowa Law Review

Proportionality and Punishment

Academic journal article Iowa Law Review

Proportionality and Punishment

Article excerpt

I. INTRODUCTION

Suppose the essence of a crime consists in manifesting insufficient concern for the rights of others in committing a criminal act.1 The manifestation of such insufficient concern entails a degree of recklessness: an awareness of an unjustifiable risk that one's criminal act will violate the rights of others.2 Assume also that a more serious crime manifests a worse deficiency in the offender's concern for the interests of others, and the harmful results of a crime, if any, do not bear directly on its seriousness.3 Finally, suppose we are obligated not to commit crimes because of a more fundamental obligation not to risk unjustifiably causing others the sorts of harms that their rights protect against.

Given these suppositions, which I take for granted for the purposes of this Essay, we would usually assume that someone who commits a crime without any exculpatory defenses deserves to be punished. More precisely, we would assume the criminal deserves to be punished in the negative sense that the state would not violate his rights by punishing him against his will.4 Our assumption, though, about the punitive desert of the offender stands in need of justification. For punishing someone involves intentionally harming him, and people typically have a right not to be intentionally harmed against their will.

Explaining why criminals deserve to be punished is especially challenging because an explanation should account for the proportionality of punitive desert. A plausible theory of punitive desert should explain why people deserve to be punished more severely for committing more serious crimes, and a plausible theory should offer a reasonable account of the absolute severity of the punishments that criminals deserve. The former aspect of punitive desert constitutes its ordinal ranking. The latter is its cardinal measure.

In the literature on the justification of punishment, unfair advantage theories of punitive desert are the most prevalent.5 Several variants have been defended.6 Although they differ in details, each assumes that a criminal would obtain some unfair advantage or, in other words, an illicit benefit unless he were punished. Criminals deserve to be punished because punishing them is necessary to remove this illicit benefit.7

In spite of the efforts to defend this sort of theory, none proposed so far in the literature provide a plausible account of the proportionality of punitive desert.8 This Essay defends a novel unfair advantage theory of punitive desert that is the first to account plausibly for the proportionality of punitive desert. Because this theory explains why and how much criminals deserve to be punished, it should play an important deontological role in limiting the severity of punishments that the state is morally permitted to impose on offenders.9

II. PROPORTIONALITY AND PRIOR UNFAIR ADVANTAGE THEORIES

To account for the proportionality of punitive desert, an unfair advantage theory must identify an illicit benefit, which unpunished criminals would retain, that satisfies two conditions. First, the benefit must be greater for committing more serious crimes. Unless the benefit satisfies this first condition, the theory will not account for the ordinal ranking of punitive desert. That is, the theory will not explain why criminals deserve to be punished more severely for committing more serious offenses.

Second, the absolute magnitude of the illicit benefits must be proportional to the absolute severity of the punishments that criminals deserve. Unless this is so, the theory will not explain the cardinal measure of punitive desert. That is, the theory will not account for the absolute severity of deserved punishments.

Arguably, prior unfair advantage theories fail to satisfy either condition. As a consequence, they cannot account for either the ordinal ranking or the cardinal measure of punitive desert. To see why, consider four variants of an unfair advantage theory that have been proposed in the literature, widely discussed, and roundly criticized. …

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