Getting Proportionality in Perspective: Philosophy, History, and Institutions

Abstract

This essay revisits the conceptual debates about proportionality and its moral and political force, setting these debates in historical and institutional context. It argues that the conceptual, moral, political and practical questions about proportionality are inextricably linked, and that this insight should lead us away from the dominant conception of proportionality as a moral precept and towards a political conception of proportionality which is inevitably shaped by prevailing conceptions of what proportionality is for and, in modern democracies, is grounded in democratic practices and the institutional structure of democratic states. This insight has important implications for the prevailing disciplinary division of labour in the criminal justice field, calling into question whether the tendency to separate conceptual and philosophical from social theories of punishment is appropriate. In conclusion, the paper considers the conditions under which stable constraints on the state's power to punish, and accountability mechanisms adequate to guaranteeing the fittingness of punishment by reference to democratically endorsed standards -which I take to be the key animating concerns of contemporary appeals to proportionality -are most likely to be realised, and conversely where they are likely to be most under threat. This I take to be both an important issue in itself, and a case study in the interaction between concept and context.

Re-thinking notions of evidence and proof for sentencing: Towards a more communitarian model

“…68. For example, the role of the emotions has long been recognised as central to the perception of criminal 'justice'; see Karstedt et al (2011). Yet, emotions alone are insufficient, they require direction if state penality is to engage with them in a positive sense.…”

Conceptualizing and measuring “punitiveness” in contemporary advanced democracies

“…Political science and criminology are conscious of the imprecise nature of punitiveness definitions. Tonry (2007) writes, “Usually the thing being described is left vague; what is usually meant is an unspecified mix of attitudes, enactments, motivations, policies, practices, and ways of thinking that taken together express greater intolerance of deviance and deviants and greater support for harsher policies and severer punishments.” There is also some agreement that proportionality of punishment is associated with reason and leniency (Ashworth & Roberts, 2012; Pratt et al, 2005; Tonry, 2011a, 2011b) whereas excess punishment is punitive (Matthews, 2005), though the basis of these notions in concrete scales is notoriously complex (Lacey, 2021).…”

“…Additionally, we must consider the concept of proportionality to be a political one in and of itself as Lacey (2021) often finds other conceptions to be “rootless.” She writes, “The appeal of proportionality, seen in political rather than moral terms, lies in whatever capacity it has, or its supposed capacity, to define the contours of the state's power to punish and thereby to foster democratic accountability and the legitimacy of punishment.” I would argue that there exists a political ordering of crimes which can allow us to generally be able to evaluate proportionality within contexts and for the sentences and indicators of this index. For example, there has been much political focus in recent years on nonviolent versus violent crimes or features of crimes.…”