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Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”

Published online by Cambridge University Press:  16 February 2016

Andrew von Hirsch
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Extract

Recent philosophical writing about punishment has been devoted mainly to the “why punish?” question. While a variety of theories — utilitarian, reciprocity based, and expressive — have been put forward to answer this question, there has been wide agreement among philosophers that the institution of legal punishment should be retained. Proponents of the various theories disagree chiefly why institutionalized punishment is necessary.

The philosophical writings have paid comparatively little attention to the criteria for distributing punishments — particularly to the criteria for deciding how much to penalize convicted offenders.

Type
Determining Penalties (1): Criteria for Sentencing
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 549 - 580
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 There has been some notable philosophical writing on the criteria for criminal liability. See Hart, H. L. A., Punishment and Responsibility (1968)Google Scholar. For a recent treatment, see Husak, D., Philosophy of Criminal Law (1987)Google Scholar. Philosophers have, however, generally been less concerned with the quantum of punishment imposed on convicted offenders. For the most extensive discussions, see Kleinig, J., Punishment and Desert (1973) chap. 7CrossRefGoogle Scholar; Davis, , “How to Make the Punishment Fit the Crime” (1983) 93 Ethics 726CrossRefGoogle Scholar; see also Bedau, , “Classification-Based Sentencing” (1984) 10 New Eng. J. Crim. & Civ. Confinement 601Google Scholar.

2 The legal literature has often addressed sentencing policy, occasionally from a philosophical perspective. See, e.g., von Hirsch, A., Doing Justice (1976)Google Scholar; von Hirsch, A., Past or Future Crimes (1985)Google Scholar; Morris, N., The Future of Imprisonment (1974)Google Scholar; Zimring, & Hawkins, , “Dangerousness and Criminal Justice” (1987) 85 Mich. L. R. 481CrossRefGoogle Scholar; Singer, R., Just Deserts (1979)Google Scholar; Ashworth, A., Sentencing and Penal Policy (1983)Google Scholar; Ashworth, A., “Criminal Justice and Deserved Sentences” [1989] Crim. L. R. 340Google Scholar. On the effect of sentencing philosophy on sentencing statutes or guidelines, see von Hirsch, A., Knapp, K. A. & Tonry, M., The Sentencing Commission and Its Guidelines (1987) chaps. 3, 5Google Scholar; von Hirsch, A., “Principles for Choosing Sanctions: Sweden's Proposed Sentencing Statute” (1987) 13 New Eng. J. Crim. & Civ. Confinement 171Google Scholar; Ashworth, A., Sentencing and Penal Policy (rev. ed., 1992)Google Scholar.

3 Hart, supra n. 1, at 8-11.

4 This article does not address the criteria for assigning substantive criminal liability. Although logically a prior question to that of how much to punish, criminal liability is a distinct topic — and one too large for the present undertaking.

5 See infra text accompanying nn. 43-48.

6 See Murphy, , “Marxism and Retribution” (1973) 1 Phil. & Pub. Aff. 217Google Scholar; Gardner, , “The Renaissance of Retribution” (1976) Wis. L. R. 781, at 805–11Google Scholar.

7 I attempted to address this issue in von Hirsch, A., Doing Justice (1976) chap. 17Google Scholar. However, I am now dissatisfied with that treatment for two reasons. First, it used the benefits-and-burdens theory of desert, id. at 154, which I now think mistaken, see infra text accompanying nn. 18-35. Second, it failed adequately to discuss how and to what extent deprivation affects criminal culpability. See Hirsch, von, “The Politics of ‘Just Deserts’” (1990) 32 Can. J. Criminology 397, at 407–9Google Scholar.

8 Mackie, J. L., Persons and Values (1985) chap. 15Google Scholar.

9 Id., at 215-19.

10 Hart, supra n. 1, chaps. 1, 7.

11 Id.

12 Id.

13 Id., at 25.

14 For a fuller statement of the argument, see infra text accompanying nn. 59-62; see also A. von Hirsch, Past or Future Crimes, supra n. 2, at 34-36.

15 Such a sanction might, for example, avoid reprobative terms such as offence, offender, guilt, malice, or penitentiary, in favour of morally neutral terms. It might also include an express disavowel that any stigma or blame should attach to those persons upon whom sanctions are visited. For many years, the juvenile justice system made this attempt — with ill success, however, since most people thought that juvenile offences were reprehensible and appropriately subject to a censuring response.

16 See, e.g., Klaus Mäkäla, discussed in A. von Hirsch, supra n. 14, at 48-51; see also Andenaes, J., Punishment and Deterrence (1974) chap. 4Google Scholar; Ewing, A. C., The Morality of Punishment (reprinted ed., 1970) 94–100Google Scholar.

17 For a fuller discussion, see A. von Hirsch, supra n. 14, at 48-51.

18 See, e.g., Scheid, , “Kant's Retributivism” (1983) 93 Ethics 262CrossRefGoogle Scholar; Murphy, , “Does Kant Have a Theory of Punishment?” (1987) 87 Colum. L. R. 509CrossRefGoogle Scholar.

19 Morris initially advocated the benefits-and-burdens theory, see Morris, , “Persons and Punishment” (1968) 52 Monist 475CrossRefGoogle Scholar, but subsequently moved away from it, see Morris, , “A Paternalistic Theory of Punishment” (1981) 18 Am. Phil. Q. 263Google Scholar. Murphy also initially espoused the benefits-and-burdens view, see Murphy, J., Retribution, Justice, and Therapy (1979) 82–115CrossRefGoogle Scholar; however, he, too, subsequently criticized the theory, see Murphy, , “Retributivism, Moral Education, and the Liberal State” (1985) 4 Crim. J. Ethics 3CrossRefGoogle Scholar.

20 See Sadurski, W., Giving Desert Its Due (1985) chap. 8CrossRefGoogle Scholar; Sher, G., Desert (1987) chap. 5Google Scholar; Finnis, J., Natural Law and Natural Rights (1980) 263–64Google Scholar; Gewirth, A., Reason and Morality (1978) 294–98Google Scholar.

21 While I at first subscribed to this theory, A. von Hirsch, Doing Justice, supra n. 2, at 47-48, I have become convinced that it raises more questions than it answers and argue against it in A. von Hirsch, supra n. 14, at 57-60; see also Duff, R. A., Trials and Punishments (1986) chap. 8Google Scholar; Burgh, , “Do the Guilty Deserve Punishment” (1982) J. Phil. 193CrossRefGoogle Scholar.

22 For a further discussion, see A. von Hirsch, supra n. 14, at 58-59.

23 See, e.g., Davis, supra n. 1.

24 Id.

25 Id., at 743-44.

26 For a useful detailed critique of Davis's model, see Scheid, D. E., “Davis and the Unfair-Advantage Theory of Punishment” (1990) 18 Phil. Topics 143CrossRefGoogle Scholar.

27 For a fuller discussion of harm and culpability as elements of seriousness, see A. von Hirsch, supra n. 14, chap. 6.

28 While sentencing legislation traditionally has not supplied criteria for gauging seriousness, the 1976 Finnish sentencing law and the 1988 Swedish legislation do so. In both countries, the statutory criteria for seriousness explicitly emphasize harm and culpability. See Fin. Pen. Code §6:1; Swed. Crim. Code §29:1; see also A. von Hirsch, supra n. 2, at 177-79, 181, 191; von Hirsch, A. & Jareborg, , “Sweden's Sentencing Statute Enacted” [1989] Crim. L. R. 275Google Scholar.

29 Davis, M., “Criminal Desert, Harm, and Fairness”, in this issue, at p. 524Google Scholar.

30 For a similar criticism, see Goldman, , “The Paradox of Punishment” (1979) 9 Phil. & Pub. Aff. 42, at 44Google Scholar. Davis responds by asserting that the seriousness of such crimes is not comparable because they are not of the same “type”. See Davis, , “Why Attempts Deserve Less Punishment than Complete Crimes” (1986) 5 Law & Phil. 1, at 28 n. 15CrossRefGoogle Scholar. But ruling out such comparisons makes the model still less helpful for gauging comparative severity.

31 See, e.g., Hirsch, von & Jareborg, , “Provocation and Culpability”, in Schoeman, F., ed., Responsibility, Character, and the Emotions (1987) 241Google Scholar. Davis would seem to approve of a shift of emphasis away from culpability. In a recent article, he endorses strict criminal liability and argues further that if persons convicted of strict liability crimes are to be punished less than those convicted of intentional crimes, it is simply because the former would bid less for their licences — because a licence to commit a crime of strict liability would be necessary only in rare, unforeseeable situations, whereas the intentional offender knows that she will have to make use of her licence. Davis, , “Strict Liability” (1987) 33 Wayne L. R. 1363, at 1386–89Google Scholar.

32 Sadurski has asserted that the extent of the offender's “benefit” from not having to exercise self-restraint will vary with the importance of the rights infringed. See W. Sadurski, supra n. 20, at 229; see also G. Sher, supra n. 20, at 81. Unfortunately, neither Sadurski nor Sher offers a convincing account of why violating a more important prohibition, or violating one that protects more important victims' rights, confers on the violator a greater freedom from self-restraint than violating lesser prohibitions would. If extra freedom of action is the criterion, why am I more free when I take unjust advantage by depriving another person of his life than of his property?

33 R. A. Duff, supra n. 21, at 211-16; see also D. E. Scheid, supra n. 26.

34 See supra text accompanying nn. 21-22.

35 See A. von Hirsch, Doing Justice, supra n. 2, chap. 6. There I suggested that benefits-and-burdens theory serves to account only for the imposition of hard treatment (that is to say, why we should respond to wrongdoing by imposing a sanction that visits material deprivation, rather than by expressing purely symbolic disapproval). Punishment's other defining component — censure — is justified as the expression of a morality that holds people responsible for their actions. It is this latter, condemnatory component, I argued, that explains why punishment should be proportionate to the gravity of the offence and why the criteria for proportionality should be developed by examining the extent to which criminal conduct of different kinds is blameworthy. Id., chap. 8.

I do not wish to defend this hybrid view now since I no longer find myself convinced by the benefits-and-burdens theory, even as a justification for the hard-treatment elements in punishment. See A. von Hirsch, supra n. 14, at 57-60 I merely mention this view as a way, even if not a very satisfactory one, of accounting for the principle of proportionality. What this argument would do, however, is largely to subsume benefits and burdens into a subspecies of expressive theory. Condemnation of wrongdoing is now used not only to explain the existence, of the expressive element in punishment but also to explain how to allocate punishments. The idea of benefits and burdens retains only a residual role in justifying punishment.

36 Feinberg, J., Doing and Deserving (1970) ch. 5Google Scholar; see also R. A. Duff, supra n. 21, chap. 2. But see Skillen, , “How to Say Things with Walls” (1980) 55 Philosophy 509CrossRefGoogle Scholar.

37 M. Davis, supra n. 29.

38 Id.

39 Id.

40 Some sanctions, often classified in law as civil penalties, lie halfway between licence fees and criminal penalties. The actor is not supposed to engage in the conduct, even if willing to pay; at the same time, the conduct is not necessarily considered reprehensible. Treating the penalty as civil is designed, in part, to avoid the stigma of punishment. See American Law Inst., Model Penal Code and Commentaries (1985) §1.04(5)Google Scholar. Such violations, the code declares, “do not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense”.

41 Davis, M., “Postscript: In Fairness to Condemnation”, in this issue, at p. 581Google Scholar.

42 Id.

43 Strawson, P. F., “Freedom and Resentment”, in Freedom and Resentment and Other Essays (1974) 1Google Scholar.

44 See J. Feinberg, supra n. 36, chap. 5; Primoratz, , “Punishment as Language” (1989) 64 Philosophy 187, at 196–98CrossRefGoogle Scholar.

45 See also Primoratz, ibid., where he argues that the disapproval of wrongdoing conveyed by punishment may be seen as “intrinsic” and nonconsequentialist, rather than as merely a means for preventing crime.

46 R. A. Duff, supra n. 21, chap. 9; Duff, , “Punishment and Penance: A Reply to Harrison” (Supp. 1988) 62 Aristotelian Soc'y 153Google Scholar. For views somewhat (but not completely) comparable to Duff's, see Morris, “A Paternalistic Theory of Punishment”, supra n. 19; Hampton, , “The Moral Education Theory of Punishment” (1984) 13 Phil. & Pub. Aff. 230Google Scholar.

47 Duff, “Punishment and Penance … ”, supra n. 46, at 159-63.

48 Primoratz, mistakenly in my judgment, argues that Duff's view is consequentialist — the aim being solely to persuade the offender to change his behaviour. See Primoratz, supra n. 44, at 195-96. Duff seems to lay himself open to this charge by asserting that one should never admit that a criminal is beyond hope of the redemption that censure from others might evoke. See R. A. Duff, supra n. 21, at 266. Primoratz finds this view implausible — what about Klaus Barbie? Primoratz, ibid., at 195. Moreover, if the theory rests on a factual claim that all offenders are capable of changing, is it not consequentialist?

One does not, however, have to make any factual assertion that all actors might, in fact, be redeemed. It could be conceded that some persons almost certainly will refuse to repent or try to reform themselves. Even incorrigible actors, however, are capable of reflection and thus can be made aware of others' disapproval of their misconduct. This is how a Klaus Barbie differs from a tiger. If the former is untamable, there is no point in remonstrating; one simply has to use restraint. But Barbie is a person (however evil) and thus is capable of understanding the disapproval of other persons. Irrespective of his willingness to repent or change, he should be made aware — through the dramatic means of penal censure — that others regard his actions as extraordinarily reprehensible. Should he nevertheless wish to congratulate himself for his acts, he would at least have to shoulder the burden of knowing and feeling the disapproval conveyed through punishment.

49 Kleinig, J., “Punishment and Moral Seriousness”, in this issue, at p. 401Google Scholar; Primoratz, supra n. 44, at 198-202.

50 Duff, supra n. 46, at 164-66.

51 Id.

52 Jareborg, N., Essays in Criminal Law (1988) 76–78Google Scholar.

53 A. von Hirsch, supra n. 14, chap. 5.

54 The relation between the two features — censure and hard treatment — may thus be stated as follows:

1. The response to certain predatory behaviour should take condemnatory form, for the reasons set forth already (supra text accompanying nn. 43-48): namely, the response should recognize the wrongfulness of the conduct, and address the actor as someone capable of a moral response.

2. A condemnatory response, however, could be xpressed either in a purely (or primarily) symbolic mode; or else, in a mode in which reprobation is expressed through hard treatment. The institution of the criminal sanction is a response of the latter kind, and it is preferred because of its function of discouraging criminal behaviour.

The two elements, preventive and reprobatory, are thus not cumulative or independent of one another. The structure of the argument is one wherein the preventative element operates within a censuring framework. For a fuller discussion, see von Hirsch, A., Censure and Sanctions (1993, forthcoming) chap. 2Google Scholar.

55 For a fuller discussion, see infra text accompanying nn. 59-65.

56 Duff, supra n. 46, at 158-59.

57 For a similar account of coercion, see Wertheimer, A., Coercion (1987)Google Scholar.

58 See A. von Hirsch, supra n. 14, at 53.

59 What form this censuring response should take might vary with the society. In a strongly communitarian society, formal condemnation alone might carry considerable moral weight: the person censured would find herself quite forcibly confronted with others' disapproval. In a more loosely knit society, however, verbal censure alone might have little weight. Something more might be needed to induce offenders to pay attention to judgments condemning their conduct — conceivably, the penance rituals of which Duff speaks. See supra text accompanying nn. 50-51.

60 See supra text accompanying nn. 54-55, regarding the intertwining of censure and hard treatment.

61 A. von Hirsch, supra n. 14, at 34-36.

62 See supra text accompanying n. 14.

63 See supra text accompanying nn. 15-17.

64 See supra text accompanying nn. 52-55.

65 Is the closure of the escape route airtight? It does seem to explain why it would be inappropriate to replace punishment solely with a noncondemnatory sanction that could be distributed without regard to blameworthiness. Conceivably, there could be more complex responses. Why not, for example, have censure, followed by a separate noncondemnatory state sanction? Since the additional imposition would not be reprobative in character, it would involve no unjustifiable increase in blame. There is, however, another objection: this separate noncondemnatory sanction clearly falls outside the assumed justification for hard treatment. One is no longer speaking of a censure-expressing response that, for preventive reasons, involves material deprivation (see n. 54 supra). Instead, the additional sanction is not reprobative at all — and thus is of the purely “tiger-controlling” kind that does not address the actor as a moral agent. See supra text accompanying n. 48. See also A. von Hirsch, supra n. 54, chap. 1.

66 Burgh, , Book Review, (1987) 6 Law & Phil. 129CrossRefGoogle Scholar.

67 Kant, I., Groundwork of the Metaphysics of Morals (Paton, H. trans., 1956) 96Google Scholar.

68 Burgh, supra n. 66, at 132-34.

69 My argument was that the criminal sanction does not treat persons merely as means because its justification does not rest solely on utilitarian grounds; the criteria for its distribution do not do so either. See A. von Hirsch, supra n. 14, at 54-57. For Burgh's contrary view, see Burgh, supra n. 66, at 133.

70 For an elaboration of this distinction and the reasons for it, see A. von Hirsch, supra n. 14, chap. 4.

71 Id.

72 Jareborg has asked whether the upper bounds on the penalty scale are really a matter of humane treatment rather than of justice. See Jareborg, , Rättvisa och Repressionsniva, in Touri, K., ed., Rättdogmatikens Alternativ (1988) 93–95Google Scholar. My argument here is that it is a matter of justice, i.e., of penal desert. This conclusion comports with the sense we have that the penalties in Draconia are more than merely inhumane — it would be unjust to inflict such drastic penalties even on lesser offences.

73 A. von Hirsch, supra n. 14, at 44.

74 Jareborg, supra n. 72, at 95-96.

75 See supra text accompanying n. 53.

76 Possibly, the following scenario would be one that called for lower cardinal limits. Imagine a society populated by persons who are almost never violent but who have a pronounced tendency to steal. In this society, a system of more than token punishments would be needed to prevent larceny on a grand scale. Suppose larceny were punished by fines. What then, should be the prescribed penalties for violent crimes, on the rare occasions they occur? To maintain ordinal proportionality, they would have to be more severe than the penalties for larceny; that is, not only be ranked but also be suitably spaced above the larceny penalties. For a discussion of spacing, see Hirsch, von, “Commensurability and Crime Prevention” (1983) 74 J. Crim. L. & Criminology 209, at 213, 229CrossRefGoogle Scholar. But is this the only requirement? It might not be: the penalties for violent crimes should, arguably, be sufficiently severe in themselves to convey the requisite disapproval of such heinous behaviour. This might mean at least some period of confinement — albeit surely not such lengthy confinements as are customary today. If one accepts this argument, one is claiming there are lower cardinal limits.

77 For a discussion of the parsimony principle within a desert framework, see Hirsch, von, “Equality, Anisonomy, and Justice” (1984) 82 Mich. L. R. 1093, at 1105–07Google Scholar.

78 A. von Hirsch, supra n. 14, chap. 11.

79 A. von Hirsch, Doing Justice, supra n. 2, at 135-36. For present lack of knowledge of deterrent effects, however, see A. von Hirsch, supra n. 14, at 13.

80 See A. von Hirsch, Doing Justice, supra n. 2, at 135-36.

81 See supra text accompanying nn. 52-55. For fuller discussion of this issue of setting anchoring points, see A. von Hirsch, supra n. 54, chap. 4.

82 On Duff's theory, for example, see supra text accompanying nn. 50-51, 56.

83 See R. A. Duff, supra n. 21, at 278-81.

84 See supra text accompanying nn. 79-80; see also A. von Hirsch, supra n. 14, chaps. 8, 13, 14.

85 Seriousness of crime has two main dimensions: the degree of harmfulness of the conduct and the extent of the actor's culpability. A. von Hirsch, supra n. 14, at 64-65. The problem is to develop criteria for measuring harm and culpability that are more illuminating than simple intuition.

If we begin with culpability, the substantive criminal law can provide considerable assistance because its theories of fault have their analogues in sentencing. See id., at 71-74; von Hirsch & Jareborg, supra n. 31; Wasik, , “Excuses at the Sentencing Stage” [1983] Crim. L. R. 450Google Scholar.

Harm, the other dimension of seriousness, is less well charted. We all have a sense that, say, violence is more harmful than theft, but there is not much theory to aid our intuition. See A. von Hirsch, ibid., at 65-66. The difficulty is to compare the harmfulness of crimes that involve invasions of different interests. Making compari-sons between such crimes seems to require a common criterion for assessing the importance of the interests infringed.

Earlier I suggested that interests be compared according to the degree to which they characteristically affect the individual's ability to direct the course of her own life. Id., at 66-71; see also Feinberg, J., Harm to Others (1984)Google Scholar. However, I have now come to regard a choice-based standard as somewhat artificial. Jareborg and I have sketched an alternative account: ranking interests according to their typical effect on the person's living standard understood broadly to include both economic and noneconomic well-being. See von Hirsch, A. & Jareborg, N., “Gauging Criminal Harm: A Living-Standard Analysis” (1991) 11 Oxford J. Legal Studies 1CrossRefGoogle Scholar.

86 Davis, supra n. 31.