Rethinking Proportionality in Punishment

Like the Chimera of Greek mythology, American penal thought has its own powerful and elusive forces. In the world of punishment, proportionality occupies a similar space in the American imagination. The fancy of proportionality is to balance the severity of punishment with the severity of crime. On its own, the task is herculean, yet in practice, success becomes absolutely elusive due to consequentialist considerations that continue to shape law and policy.

In this article, Lacey and Pickard show why proportionality cannot deliver on its promise of equalizing punishment. In the ‘neo-classical’ articulation, punishment has come to be understood as a morally appropriate equivalent to an offense, which in theory is constrained by the requirement of proportionality. However, the authors argue that proportionality generates in itself no concrete limits to punishment, and that the question of “how much” remains open to the sways of convention, political decision, and expediency.

This contention means that the cornerstone of retributive thought, proportionality, is far more complicated than “eye for an eye”-isms suggest. Rather, what has been thought of as proportionality is a product of political and social construction, cultural meaning-making, and institution building.

The explanatory power of this insight is worth pondering. Foremost, it helps explain why what was proportional 50 years ago is no longer. In the American context in particular, the notion of proportionality has come untethered from social referents, resulting in a spectacular grade-inflation, with prison sentences that were unthinkable back then, now the status quo.

Drawing on evolutionary psychology and comparative political economy, the authors examine differences between American and Scandinavian punishment. A major difference, they suggest, is that the American application of proportionality is no longer organized around a moral structure as a means to limit punishment. There is no agreed mechanism for anchoring the penalty scale, no religious ritual or sacred symbols of power, rather, punishment is driven by cardinal convention, calculations of consequences, and political dynamics.

Compounding this disconnect is the American will to retaliation. As a basic response to criminal conduct, this sentiment serves to escalate aggression and threaten ongoing relationships. The group tensions are exacerbated in proportion to the differences between those punished and the dominant group, with the greater the difference, the harsher the punishment. This picture flips the equivalency of proportionality on its head, since class, race, and social status are more likely to determine the scale of punishment than any intrinsic calculus. From this view, it might appear no accident that prison sentencing skyrocketed in the decades that punished indigent, uneducated, ethnic minorities the most.

As criminal justice effectively functions to maintain hostilities between groups, the authors advocate reconciliation as means to avoid polarization and reduce inequality. Mending the rifts necessarily involves legitimizing and civilizing of punishment, which itself depends on legitimizing and civilizing of criminal law. Success in these endeavors entails deeper understanding of the conditions required and supporting institutions that can deliver proper responses to crime. The key is to transform an untamable beast into a stable-mate.

For students of punishment theory, this article underscores that proportionality is not self-evident. It is perhaps less mathematical formula than cultural construct. In the present, proportionality floats in instability, unanchored to genuine social more. Although eye for an eye punishment may not be the accepted way, the notion of just deserts remains—and with it—the central difficulty of measuring an eye’s worth of pain.

The work also offers a fresh take on understanding the dramatically increased scale of punishment in America. It conveys that the scale is skewed because of calibration failure; simultaneously it soberly and somberly suggests that if wealthy, educated whites were the dominant subjects of punishment, sentencing would look very different than it does now.

Still, one wonders whether there is more anchoring than suggested. For example, the justice system is greatly indebted to religious forms and rituals, particularly criminal courts, where 12 jurors and a judge ritualize the biblical story of revelation; similarly, penitentiary as punishment has as nearly a long pedigree in Christian thought and practice. Although it is contended that these meanings have faded, a more troubling read might indicate pure sublimation—that religious conviction is driving the penal status quo. It is harkens to Bourdieu’s idea that some practices ‘go without saying’ because they came without saying. Thus, some of the anchoring may be somewhat invisible, despite that weekly, at all levels of society, masses of Americans come together to hear and talk about the imprisonment, torture, and capital execution of Jesus.

One also wonders whether eye for an eye literalisms are as foregone such as not to complicate the thesis. It may be true that purely retributive punishments are not viewed as appropriate responses to crime—but this might not hold for murder. The prison as a one-size-fits-all punishment seemingly abandons lex talionis, but whether the baseline holds for capital punishment is uncertain.

The critical questions raised by this work underscore that legal punishment must be treated perhaps more differently than any institution in society. It is the most poignant way for a state to exercise power over the naked body and it must be effectively constrained. Although the Supreme Court has been exceedingly reluctant to intervene in state and federal sentencing schemes, this work challenges that proportionality, as understood and applied today, will always fall short of just.

Cite as: SpearIt, Rethinking Proportionality in Punishment, JOTWELL (June 10, 2015) (reviewing Nicola Lacey and Hanna Pickard, The Chimera of Proportionality: Institutionalizing Limits on Punishment in Contemporary Social and Political Systems, 78 Mod. L. Rev. 216 (2015),