Maybe the most attractive feature of retributivism in the philosophy of punishment is that it has a principle of proportionality. Proportionality is intimitately connected with desert. As the criminologist Andrew von Hirsch (who has written a fantastic series of books and articles on this topic) describes it, the proportionality principle dictates that punishment should be “commensurate to the degree of blameworthiness of the conduct,” where “blameworthiness depends both on the harmfulness of the conduct and on the degree of culpability of the actor.” (Reply to Bedau, J Phil, 1978). According to von Hirsch, the proportionality principle is “a basic requirement of fairness.”
The big problem for retributivists is trying to match deserved punishments to particular crimes. What punishment does someone deserve for armed robbery (where no one was physically harmed)? Ten years in prison? Five years? Two years and probation? Flogging? Retributivists have a notoriously hard time coming up with a theoretical basis to answer this question, and our intuitions are hazy at best. So what does the proportionality principle really entail?
One possibility, championed by my new favorite criminologist Norval Morris, is to adopt a ‘range only’ view of proportionality, according to which a criminal’s blameworthiness yields only upper and lower limits of deserved punishment. Our intuitions may not tell us precisely what sentence a criminal deserves for armed robbery, but we have a good sense of what kinds of punishments would be undeserved. Morris argues that punishments within that range are fair, deserved, and proportionate. According to Von Hirsch though, the range-only view is open to “a fundamental objection”: it would allow two offenders who are equally blameworthy to receive different punishments. This is just the kind of unfair outcome the proportionality principle is supposed to rule out.
Von Hirsch addresses this problem by employing a well-known distinction between cardinal and ordinal proportionality. Cardinal proportionality is absolute: it ‘anchors’ the severity of the punishment to the seriousness of the crime. Because of the haziness of our intuitions, cardinal proportionality has to remain ‘range only’, issuing upper and lower limits where punishments would obviously be either too severe or too light. Ordinal proportionality is relative. It requires that like crimes be treated alike. If two criminals commit crimes of equal seriousness (and are equally blameworthy), then they should receive the same punishment. Von Hirsch faults Morris for failing to account for the requirement of ordinal proportionality.
The analogy von Hirsch gives is university grades. The standards for ‘A’ papers vs. ‘B’ papers etc, are real but indeterminate (cardinal proportionality) and may depend on other factors about the university. But once those standards are set, we should give papers of equal quality the same grade (ordinal proportionality). According to Von Hirsch, the same reasoning applies in criminal justice.
All this may sound plausible when considered abstractly, but I want to argue that punishments that violate ordinal proportionality are not unfair. There is a significant disanalogy in the grading example. When a student writes a bad paper, there’s no victim (except maybe the instructor who has to comment on it). My claim is that presence of a victim diminishes the requirement of ordinal proportionality and that range-only view is sufficient for fair and deserved punishments.
Here’s an example, borrowed from Freaks and Geeks, a show I’ve been watching lately with my daughter. In one episode, Lindsay the older sister wants to go out with the cool kids (especially James Franco) on Halloween so she ditches her Mom, who was looking forward to their tradition of handing out cookies to kids. While driving around, her friends bring out the eggs and start throwing them at houses and then at trick-or-treaters. When it’s Lindsay’s turn, she throws one (reluctantly, under pressure) and ends up hitting her little brother Sam, who has had a bad night already. She’s mortified, makes them go back, but her brother just goes home humiliated. Lindsay makes the kids drop her off at home right away, and they arrive at the same time. The mother sees Sam and asks who threw the egg at him. Sam looks at Lindsay, knowing that if he tells his Mom, she’ll be grounded for a long time. He thinks about it but then says he doesn’t know who the person was. Linsday is spared. Her punishment is just the look of hurt and contempt on her brother’s face.
Now imagine the same events occurring in a neighboring town, except in that in that case the brother (Tom) is angry enough to tell his mother that his sister (Lauren) threw the egg. The mother is furious and grounds Lauren for two weeks. Does anyone have the intuition that Lauren’s punishment is unfair or undeserved because Lindsay received a far lesser one? I certainly don’t. Two weeks grounding seems about right for pelting defenseless trick-or- treaters with eggs from a car (cardinal proportionality), and nothing about what happened to Lindsay makes Lauren’s fate unjust or undeserved. In fact, assuming she has the same moral compass as Lindsay, I doubt Lauren would complain about the relative inequality of their fates if she knew about them. So this seems like a case where ordinal proportionality is violated yet both Lauren and Lindsay—who are equally blameworthy—received the punishments they deserved.
Now you might disagree. Maybe you think that what’s unfair is that Lindsay got off scot-free, that she did not in fact get the punishment that she deserved. But I think that’s not right either. First, she feels terrible guilt. Second, she has to endure the contempt of her younger brother, who knows how hard she’s working to impress some kids who will probably never accept her anyway. That too seems like a reasonable punishment for what she did. It was Halloween, after all. Kids throw eggs. Furthermore, to the extent that you disagree, I’d argue that has nothing to do with Lauren’s punishment, but rather it’s because you think that Lindsay’s punishment falls below the reasonable lower limit—in other words, that it violates cardinal proportionality.
So to sum up this long post, it’s no coincidence that von Hirsch loves to present grading and award fellowships as examples, because there aren’t any victims. (In fact, I’d agree with Von Hirsch about punishment for ‘victimless crimes.’) But the presence of a victim introduces a new element that diminishes ordinal proportionality. Sam was able to have a say in how Lindsay would be punished, and there’s nothing wrong or unfair about that—even if a different brother did something else in the same situation. When there is a victim, then, the ‘range-only’ view of proportionality and desert is sufficient. What does everyone else think?