Proportionality in punishment

[Music] Hi, I’m Barry Lam, associate professor of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy that turns stories into ideas. In this video, we’ll discuss different approaches to figuring out how severely the government should punish offenders for the crimes they commit. In 2004, a 39-year-old man was caught shoplifting two Michael Jordan jerseys worth a total of $120. In Louisiana, thefts over $100 are felonies. Because he committed a felony, the man is now serving a sentence of life without the possibility of parole. This doesn’t seem just, but how do we determine the proper length or severity of a punishment for a crime? The answer to this question depends on what you think justifies punishment in the first place. If the purpose of punishment is to promote the greatest social good, or to prevent a lawbreaker from reoffending in the future, then it’s a wholly empirical matter how to punish a particular crime. So, what does the research show? It turns out that, statistically, the typical murderer is someone who kills a close family member or acquaintance in the heat of the moment. Given the nature of this crime, the risk of punishment doesn’t seem to effectively deter it. And no punishment, no matter how severe, prevents these offenders from committing similar crimes later, because it’s rare for them to reoffend like this anyway. So, as a means to social good or the prevention of future crime, the punishment for murders of this kind shouldn’t be very severe, and may not be justified at all. On the other hand, imagine a serial candy thief who can’t or won’t change her behavior even though she keeps getting increasingly long prison sentences. If it turned out that the only effective method of preventing her from reoffending is something extreme, like amputating her arms or lobotomizing a certain part of her brain, then that would be an empirically tested and thus justified punishment, according to this view. But neither of these punishments seems fitting. Punishments that seem too extreme or too light relative to the crime are seen as unfair and unjust. This leads philosophers to conclude that underlying our judgments about what counts as just punishment are judgments of what someone deserves rather than what will best promote social good or deterrence. We want murderers and thieves to get what they deserve, no more and no less. The empirical considerations as to what does or doesn’t work for deterrence or rehabilitation are secondary, if they’re relevant at all. Giving someone what they deserve means being guided by moral considerations of proportionality. The punishments must fit the crimes. And there are two ways justice systems try to determine which punishments fit which crimes. The first what is what guides some societies to judge that the death penalty is a fitting punishment for the crime of murder, or that caning is a fitting punishment for unjustified assault. Inflict on the perpetrator a harm proportionate to the harm they inflicted on their victim. This attempt to directly fit the punishment to the specific crime is called “cardinal proportionality.” Justice is a matter of inflicting proportionate harm on the offender. The problem is that, for many crimes, returning proportionate harm seems deeply unjust, or simply makes no sense. For instance, punishing a kidnapper by kidnapping their child does not strike many people as justly proportionate punishment. And it’s not clear what exactly it would mean to return comparable harm to the offender for crimes like jaywalking or illegally assembling on public property. The second way to calculate proportional punishments is called “ordinal proportionality.” These theories begin by ranking crimes on a list, from most to least morally heinous. There’s widespread agreement, for example, that murder is worse than assault, which is itself worse than candy theft. Once there’s agreement on the ranked list of crimes, the government can set punishments for these crimes by making sure that the relative severity of each punishment follows the ordering of crimes on the list. If murder is twenty times worse than candy theft, then the punishment for murder better be twenty times more severe than for candy theft. This is very close to how punishment actually works in the US. There are groups of people, called sentencing commissions, who get together, take rankings of crimes and lengths of prison time, and try to calibrate them. Then they send out those guidelines to judges to use in sentencing. But at each step in setting up ordinal proportionality, misjudgments can lead to injustice. We might get the ranking of crimes wrong. Or we might be too harsh in setting up a punishment for one crime on the list, say, 10 years in prison for shoplifting a ten dollar t-shirt. Once that happens, we’re committed to being even harsher for crimes higher up on the list, leading to absurdly disproportionate sentences like life in prison for stealing two jerseys. More generally, any system of punishment that focuses solely on giving offenders their proportional deserts -- whether cardinally or ordinally -- ignores considerations of social goods like deterrence and rehabilitation, thereby exacerbating the social, moral, and monetary costs of crime. Consider the debate over providing free books and education to the incarcerated. These are empirically the most effective means to rehabilitate the incarcerated and prevent their future involvement in crime. Many state legislatures, and a significant portion of the public, oppose these programs because they believe that inmates do not deserve these opportunities. Even law-abiding citizens, they argue, who are far more deserving don’t get free books and education. What inmates deserve is the opposite, the withholding of these goods. Judgments of what people deserve in this case directly conflict with what is best for society at large. So, while it can be challenging to figure out what punishments fit what crimes, often the harder question societies face is: What social goods are we willing to give up to ensure that offenders get their just deserts? What do you think? [Music]