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Proportionate Punishment

The idea of proportionality gures in a range of different contexts where we are


concerned with the permissibility of harming people. As we saw in chapter 8, it
plays a role in self-defenceone may not use the force necessary to avert a threat if
that force is out of all proportion to the magnitude of the threat that one faces. If the
only way in which I can prevent you from shooting me with your peashooter is to
shoot you in the head with a high-powered rie, I must tolerate suffering the
consequences of your attack. It would be disproportionate for me to kill you to
avert the threat.
Proportionality has also played more than one role in just war theory. In
determining whether it is permissible for one country to go to war with another
(what is called jus ad bellum) we must face the question of when the harm caused by
going to war, to both the soldiers and civilians of that country (and perhaps those of
other countries as well), would be proportionate. And in determining whether
particular harmful actions during the war are permissible (what is called jus in bello)
we must face the question of the circumstances in which it is permissible to harm
soldiers and civilians for the sake of particular military advances, or for the sake of
protecting our own soldiers.1
In these enquiries, and they are closely related, the question of proportionality
concerns the extent of the harms that may permissibly be imposed on one person or
group of people in order to prevent harm to others. A range of factors is salient in
making these judgements, and I have already explored the signicance of some of
them. Here are three of the most important considerations.
First, a harm imposed on another person may be proportionate if that harm
comes about as a side effect of ones pursuit of the good. But it may be dispropor-
tionate if the same magnitude of harm is intended as a means to the good. To take a
familiar example, in a war it may be proportionate to bomb a munitions plant,
killing one hundred civilians as a side effect, in order to save one thousand civilians.
But it is disproportionate to kill one hundred civilians intentionally even if doing so
would save one thousand civilians.

1
For good discussions of proportionality in this context, see, for example, T Hurka
Proportionality in the Morality of War (2005) 33 Philosophy and Public Affairs 34 and
J McMahan Killing in War (Oxford: OUP, 2009) and The Just Distribution of Harm
Between Combatants and Non-Combatants (2010) 38 Philosophy and Public Affairs 342.

The Ends of Harm. Victor Tadros.


Oxford University Press 2011. Published 2011 by Oxford University Press.
332 p rop ort i onate p un i sh m e nt

Within the category of intended harms, we distinguish between eliminative harms


and manipulative harms. It is easier to justify intentionally harming a person if we do so
to eliminate the threat that they now pose to us. It is more difcult to justify harming a
person as a means to avert a threat that we now face. The latter kind of harming, I have
suggested, is grounded in the duties that people have to avert threats. As these duties are
limited, harming a person as a means can easily become disproportionate.
Secondly, the distinction between acts and omissions makes a difference to
proportionality. It may be disproportionate to avert a threat to myself by doing
something that imposes a greater threat on another. If a boulder is about to fall on
my leg, destroying it, it is wrong for me to save myself by diverting the boulder
onto another person who will then be crushed to death. But I am not required to
rescue a person from being crushed to death at the cost of having my leg destroyed.
However, if the cost to me is much less, say severe bruising, I am required to bear
that cost to rescue the other person. We would, in that case, say that the harm that
you would have to bear if I were not required to rescue you is out of all proportion
to the harm that I would suffer if I was required to rescue you.
Thirdly, the degree to which you are morally responsible for imposing the threat
on me helps to determine the extent of the harms that I may impose on you to avert
the threat. It may be proportionate to kill a fully culpable and responsible attacker if
that is the only way for me to prevent him removing my foot. If the attacker is non-
culpable, but nevertheless morally responsible for the threat, perhaps killing him
will be disproportionate.

I. Two Conceptions of Proportionality


Along with self-defence and war, proportionality has also played an important role in
the philosophy of punishment. It is normally thought wrong to punish a person
disproportionately. But because of the dominance of retributivism, the role that
proportionality has played in the philosophy of punishment is quite different from
the role that it has played in the enquiries that I have just mentioned. Proportionality
has primarily been explored by considering the relationship between the punishment a
person must suffer and the gravity of the crime that he has committed. Punishment is
regarded as proportionate if the suffering imposed on the offender bears the appropri-
ate relationship to the gravity of his crime. The graver the crime that the person has
committed, the more that person deserves to suffer, or so retributivists think.
Proportionality, on this view, is understood as a kind of ttingness. It is similar to
the idea of proportionality in aesthetics. We may say that a painting is too big for a
wall, not because it cant t into the space but because it occupies more space on the
wall than a painting ideally would: it is out of proportion in that it is not tting,
considering the size of the wall. For retributivists, proportionality judgements are
judgements about whether the punishment ts the crime, not about when it is
two conc e p t i on s of p rop ort i onal ity 333

permissible to harm one person in order to avert harm to another. The gravity of the
crime will be dependent on the harm that is caused, or perhaps the harm that is
intended or risked. But that harm, or the relevant mental state, will have occurred
already. It cannot now be redistributed. What retributivists are interested in is
whether the crime is appropriately reected in the punishment.
In chapters 3 and 4 I argued that wrongdoers do not deserve to suffer at all, at least
in the sense of desert that retributivists use. The aesthetic conception of proportion-
ality is out of place in the philosophy of punishment. But even if I am wrong about
that, retributivists have no real arguments for restricting the magnitude of punishment
to that which is deserved.2 Retributivism offers a positive reason to give the offender
what he deserves. But retributivism alone provides no argument in support of the
view that he cannot be punished more. It is only through non-consequentialist
principles that we can nd a set of restrictions on the magnitude of punishment, and
these restrictions are independent of the central claims that retributivists make.
It is sometimes argued that proportionality is out of place in instrumentalist
accounts of punishment like the one that I defend.3 But whilst we ought to reject
the application of the aesthetic conception of proportionality, it does not follow that
proportionality is altogether irrelevant. We dont judge whether punishment is
proportionate by determining whether it is tting. We judge whether it is propor-
tionate by determining the level of harm that it is permissible to impose on offenders
for the sake of the goods that punishment might bring about. We might call this
proportionality balance. The proportionality judgements that we must make are in
this way similar to those made in enquiries into permissible self-defence and just
war. If proportionality is relevant to those enquiries, we should expect it to be
relevant in this context as well.
Now, the idea that we should understand proportionality as balance may strike
fear into the heart of criminal justice scholars. In the criminal justice context the idea
of balance is often understood in a simplistic way, and that has been shown to have
dangerous consequences. For example, it is sometimes argued that we should
balance questions of freedom against questions of security in determining the
protections that we provide to defendants against conviction and punishment.
This is often understood as amounting to a simple trade-off of values. The con-
sequences of thinking in this way are familiar: less protection for people who are
accused of crime.4 In criticizing this idea, though, what is important is not that we
reject the idea of balance, but rather that we develop a more sophisticated

2
See, further, the discussion in chapter 2.
3
See, for example, L Alexander Self-Defense, Punishment, and Proportionality (1991)
10 Law and Philosophy 323 and D Boonin The Problem of Punishment (Cambridge: CUP, 2008)
2013.
4
For good discussion, see A Ashworth Serious Crime, Human Rights, and Criminal Procedure
(London: Sweet & Maxwell, 2002) and J Waldron Security and Liberty: the Image of
Balance (2003) 11 Journal of Political Philosophy 191.
334 p rop ort i onate p un i sh m e nt

understanding of both sides of the scales. That will require us to develop an account
of what goods and harms can go into each side of the scales, the signicance of the
ways in which those goods and harms come about, the importance of their
distribution and the weight that we should assign them.
We can draw on the conception of proportionality that is in play in discussions of
self-defence and in war to help us to develop such an account. In all of these
contexts some people are harmed for the good of others, and we will want to know
whether the harm imposed is disproportionate considering the value of the good.
The gravity of the crime, as we will see, will be an important factor in determining
whether punishment is proportionate, but it is not the only important factor. For
this reason, the outcome of our investigation into proportionate punishments will
not reect retributivist views. Perhaps a retributivist will sometimes think that the
punishment is more lenient than the offender deserves and sometimes he will think
that it is harsher than the offender deserves. That may conict with their retributivist
intuitions.
But this should not trouble us greatly, for, as we shall see below, it is not obvious
that retributivism itself, insofar as we can determine what it requires, has intuitive
implications for punishment.5 There are many aspects to proportionality judge-
ments and I will restrict myself to some of the most important for the philosophy of
punishment. Thinking about the conception of proportionality that I am interested
in here is also at early stages of development, and some of what I say will be
somewhat tentative and partial.

II. The Subject Matter of Proportionality


This section is concerned with specifying with a little more care what it is exactly
that we are judging in our investigation of proportionality. There are two distinc-
tions that are important here. One is between the justication of an institution and
the justication of actions within that institution. The other is between the pro-
portionality of harming the offender himself and the proportionality of harming
others who will be harmed if we harm the offender.

i) Institutions and Decisions Within Those Institutions


In just war theory, the idea of proportionality plays two roles. It plays a role in
determining the permissibility of a decision to go to war (what is called jus ad bellum)
and it plays a role in determining the permissibility of actions conducted within the
war (what is called jus in bello). These roles that proportionality plays are often

5
See also W Quinn The Right to Threaten and the Right to Punish in Morality and Action
(Cambridge: CUP, 1993) 779.
the sub j e c t mat te r of p rop ort ional ity 335

considered to be independent of each other, although some doubt that is the right
view.6 In arguing about punishment, we might think that proportionality can play
these two different roles as well. We can consider whether it is a proportionate
response to wrongful and harmful conduct that we set up institutions of punish-
ment, and we can consider what principles ought to govern those institutions once
we have them. The rst set of considerations is important in answering the question
of whether, and how, punishment can be justied given the overall bad effects of
the practice, including the costs of developing and maintaining criminal justice
institutions. The second set of considerations is important in answering questions
about particular decisions about sentencing.
These questions are less sharply divided in the case of punishment than they have
typically been thought to be in the case of war. In the case of war, many people
think (though some disagree) that in bello considerations about proportionality are
more or less independent of whether the war is justied ad bellum. For example, it is
often thought that a harmful action by a soldier ghting for an unjust side can be
proportionate in relation to the military advantage that the action would secure.
That is often thought to be so even though the overall aim served by going to war is
unjust. In the context of punishment there is no similar issue. There is no sharp
separation between considerations in favour of the institutions of punishment and
considerations in favour of particular punishment practices.
That said, pragmatic reasons might justify distinguishing between the reasons to
develop institutions of punishment and the reasons that apply at the sentencing
stage. There may be considerations that are relevant to justifying the institution of
punishment, but which ought not to guide judges in handing down sentences in
particular cases. For example, we might think that the economic implications of
setting up and maintaining a system of punishment are relevant to the justication of
that system. But the fact that a particular offender would be very economically
productive if we were not to punish him might be thought irrelevant in determin-
ing his sentence.
If it is true that these questions come apart, though, that is not, I suspect, because
of any deep moral reason. It may be wrong for judges, when determining sentences,
to take into consideration all of the factors that are in principle relevant to the
justication of punishment simply because judges will tend to do more harm than
good if they attempt to track economic considerations in their decisions. The
institution might, overall, track the relevant set of reasons that have basic signi-
cance in making proportionality judgements more effectively if judges do not think
about all of these reasons directly.
Here I utilize an idea that has been explored in some depth especially by
consequentialists: that the factors which are relevant to evaluating a practice from

6
See Hurka Proportionality in the Morality of War 445 and, more generally,
J McMahan Killing in War.
336 p rop ort i onate p un i shm e nt

a reective point of view may be different from the factors that individuals ought to
take into consideration in deciding what to do. We may do what is best more
effectively by refraining from being guided by all of the considerations that are
relevant in determining what is best.7 There is a role for this kind of idea in non-
consequentialist philosophy as well.
In my enquiry I focus primarily on the question of what consequences can guide
proportionality judgements in principle. What kinds of guidance we should give to
judges in sentencing decisions will be inuenced by the discussion of proportion-
ality that I am engaged in here. But it will also be tempered by pragmatic con-
siderations that are difcult to evaluate from a philosophical point of view, and that I
will not focus on.

ii) Narrow and Wide Proportionality


Another distinction that is important in both the context of war and the context of
punishment is that between narrow and wide proportionality. This distinction,
which has been developed by Jeff McMahan,8 refers to different people who may
be harmed in order to achieve some good. In war, McMahan distinguishes between
those who are liable to be harmed and those who may permissibly be harmed even
though they are not liable to be harmed. He identies those who are liable to be
harmed as those who are responsible for the creation of an objectively unjust threat.
Those who are liable to be harmed will typically be soldiers who are ghting for the
unjust side, but some civilians who are on the unjust side may also be liable, in
McMahans view, as well as some people who ght on the just side but who
perpetrate individually wrongful actions. The question of whether a harm that is
imposed on a liable person is proportionate is a question of narrow proportionality.
As McMahan notes, the fact that a person is liable to be harmed does not imply
that the person can be harmed for any reason. McMahan believes that a person who
is responsible for an unjust threat may only be harmed to avert that threat. I believe
that this is false. Responsibility for an unjust threat is important in grounding a
persons liability to be harmed. But a person may be liable to be harmed to avert a
threat for which she is not responsible.
The central way in which a persons liability is to be established, I believe, is by
demonstrating that the person would have an enforceable duty to avert the threat if she
could do so. Heres why this is so. To say that a person is liable to be harmed for the sake
of some goal implies that no wrong is done to her if she is harmed for the sake of that

7
For an excellent account, see P Railton Alienation, Consequentialism, and the Demands
of Morality in Facts, Values, and Norms (Cambridge: CUP, 2003). There are parallels in
Joseph Razs idea of exclusionary reasons. See Practical Reason and Norms 2nd edn (Oxford:
OUP, 1999).
8
See, especially, Killing in War.
th e sub je c t mat te r of p rop ort ional ity 337

goal even if she does not consent. Her rights are not infringed by harming her in pursuit
of that goal. The central reason why it may be true that a non-consenting person may
be harmed for the sake of some goal without infringing her rights, I suggest, is that the
person has an enforceable duty to pursue that goal at the same cost. This follows from
the oddity of supposing that a person has an enforceable duty to bear a cost for the sake
of some goal but also that the person has a right not to be harmed for the sake of that
goal. For example, if I am liable to pay 100 in tax, my rights are not infringed if the
100 is taken from me. That follows from the fact that I have an enforceable duty to
pay the 100.
Whilst responsibility for an unjust threat is one source of an enforceable duty to
avert the threat, it is not the only source. We may have duties that are not grounded
in responsibility, and we may have duties to avert threats for which we are not
responsible and that are grounded in our responsibility for harming others.9 For our
purposes, the most important case, which I have discussed at some length, is that a
person who has wrongfully caused harm to another is liable to be harmed to avert a
threat posed by other people.
It is important to recognize that not all those who are permissibly harmed during
war are liable to be harmed. Those who are harmed in virtue of their liability are a
subset of the more general class of those permissibly harmed. For example, it may be
permissible to harm innocent civilians of the unjust country as a side effect of a
military operation. Whether it is permissible to do so depends on whether the harm
that is done to them is proportionate, given the importance of the aim that one has.
These civilians are not liable to be harmed. They lack a duty to harm themselves for
the sake of the achievement of the just cause. For that reason they may not be
harmed as a means. But they may be harmed as a side effectif the good achieved
by harming them is sufciently important. Whether it is sufciently important is a
question of what McMahan calls wide proportionality.
We might draw the same distinctionthat between narrow and wide propor-
tionalityin the philosophy of punishment. An offender who has breached a just
criminal law is liable to be punished. And there is a question of whether the harm
that is imposed on him is proportionate. In the kind of instrumentalist view that
I defend in this book, this is grounded in the duties that offenders bear in virtue of
the wrongs that they perpetrate. Whether punishment is proportionate in the
narrow sense will depend on the instrumental benets of punishing the offender.
The most important of these is the reduction in crime that punishment may bring
about. Thus the question of narrow proportionality is to be asked in the following
way: is the degree of harm imposed on the offender justied by the importance of
the goods that punishment brings about? The answer to this question depends on
whether the offender has a duty to bring about these goods even if doing so would
harm him to the same extent that he is harmed by the imposition of punishment.

9
See, further, V Tadros Duty and Liability Utilitas, forthcoming.
338 p rop ort i onate p un i shm e nt

But punishment also raises questions of wide proportionality. It is not only the
offender who will be harmed if he is punished. Others will also be harmed, most
obviously the family members, friends, and business associates of the offender.
Furthermore, punishment has criminogenic as well as crime-reducing properties.
We need to show that the goods of punishment, including most importantly the
crime that it prevents, are sufciently important to outweigh the crime that punish-
ment causes. This is no simple question, as the crime that punishment causes will be
different and differently distributed than the crime that punishment prevents.

III. The Comparative Value of Punishment


In addition to this question of proportionality, there is a further kind of enquiry that
is relevant to determine whether punishment is justied. We must not only show
that the goods of punishment are sufciently important to justify the harm that it
causes, but also show that they are sufciently important to justify the resources that
we will need to devote to punishing offenders.
Those who think that punishment is justied face the following objection: dont
we have better things to do with our money than to punish people? Punishment is
very expensive and requires signicant effortmoney and effort that could be used
in other ways. What signicance does this fact have for the justication of punish-
ment? This seems a very important question, and yet it is one that is rarely asked by
philosophers of punishment. This question of proportionality has not been very
important in the philosophy of personal self-defence. In determining whether it is
proportionate for one individual to harm an attacker in self-defence we normally
consider two options. A person faces a threat. Either he could avert that threat,
harming his attacker, or he could refrain from averting the threat and the attacker
will harm him.
In the case of war, in contrast, things are more complicated, and the question of
cost becomes more obviously signicant. Suppose that one country invades part of
the territory of another. The invaded country then faces a decision about whether
to go to war. If it does this it will harm the soldiers and civilians of the aggressing
country. Furthermore, some of its own soldiers and civilians will be harmed in the
process. And the war will use up signicant resources. The efforts of the soldiers and
civilians, and the war chest that funds the war, could have been used to do other
things. That money and effort could be spent on developing domestic social
services, or on development aid for poor countries. Furthermore, there are methods
short of war that might help to avert the threat. The invaded country could try
diplomacy, or imposing economic sanctions on the aggressing country. Perhaps
these alternatives will be less effective in averting the threat than war. But they may
also be less costly. In determining whether it is proportionate to go to war, we need
to know what we are to compare going to war with.
the com parat ive value of p un ishm e nt 339

Proportionality in punishment is very much like proportionality in war in this


respect. Our criminal justice system, just like war, expends signicant resources and
the amount that it expends is, in many Western democracies, increasing substan-
tially.10 We could spend those resources on other things. Just like the war chest, the
money that we spend on our criminal justice system could be spent on other social
services, or on development aid for poor countries. And, as in war, there are
methods short of punishment that we might use to avert the threat of crime. We
might put the money that we spend on punishment into preventive policing, or on
improving the most impoverished parts of our community, or on education. We
might require offenders to compensate their victims nancially, or we might use
methods of civil detention. Some of these methods of tackling what we now call
crime are coercive, and some instances of these techniques are at least as burden-
some on wrongdoers as some instances of punishment. But as they do not inten-
tionally make offenders suffer they do not amount to punishment.

i) Counterfactual Analysis
In war and in punishment, then, we face the difcult question of the appropriate
comparator to the decision to harm others. A standard way to think about this is
counterfactually. We consider some alternative to going to war or to punishment
that we could have pursued and compare going to war or punishment with that
other option. I dont believe that this is the best method of analysing these ques-
tions. There are a range of different counterfactuals to consider and it is not obvious
which one or ones we should choose for the purposes of comparison. In the end
I dont think that any of the most plausible options is appealing and we should reject
counterfactual analysis altogether.
One possibility is that we should consider the best alternative thing that we could
do with the effort and resources that we spend on criminal justice. Consequential-
ists, who are concerned only with ensuring that the best outcomes are produced,
typically believe that this is the appropriate comparator in deciding what it is right
and wrong to do. But this standard is almost certainly too demanding.11 To see this,
lets focus on the more limited case of individual self-defence. Imagine that you
attack me and the only way for me to defend myself is to use the antique sword that
is on my wall to gouge your leg. If I dont do this you will break my jaw. If I do, the
sword will be badly damaged and its value will be severely diminished.

10
See C Steiker Criminalization and the Criminal Process: Prudential Mercy as a Limit
on Penal Sanctions in an Era of Mass Incarceration in R A Duff, L Farmer, S E Marshall,
M Renzo, and V Tadros The Boundaries of the Criminal Law (Oxford: OUP, 2010).
11
In the context of war, see D Mellow Counterfactuals and the Proportionality Crite-
rion (2006) 20 Ethics and International Affairs 439 and Hurka Proportionality and Necessity
in L May War: Essays in Political Philosophy (Cambridge: CUP, 2008).
340 p rop ort i onate p un i shm e nt

In this case there may well be a morally better alternative to defending myself that
I could pursue. For example, if I suffer the broken jaw I could sell the sword and give
the money to charity, saving several lives. I am not required to do that, though, even
though this would clearly be the best outcome. After all, I would not be required to
sell the sword at all were I not to defend myself with it. Similarly, it may be that the
state need not spend the resources that it currently spends on criminal justice on the
morally best alternative. It may be good for a state to decide to spend the resources it
currently spends on criminal justice on humanitarian aid. But the fact that this is good
does not render it wrong to maintain the criminal justice system.
Another possibility is that we should focus on what we would do with our
resources were we not to punish the person. But that is not very attractive either.
What we would do were we not to punish the person depends on the motivations
we have. It is difcult to see why the permissibility of punishment should turn on
these motivations. I cannot normally affect what it is permissible for me to do by
changing my motivations. The fact that one society would be motivated to spend
the money on development aid were it not to punish offenders where another
would be motivated to spend the money on opera houses cannot plausibly affect
our judgement about whether punishment is proportionate in these two states.
A third possibility, one defended by David Mellow12 and endorsed by Thomas
Hurka,13 is that we focus on the least valuable permissible alternative that we would
have to punishment. This seems to me along the right lines, but it is also problem-
atic. The problem with this view is that it is nowhere near demanding enough. I can
permissibly do some things that have great disvalue. It would be very undemanding
if all that I had to show was that in defending myself things are better than they
would be were I to do these disvaluable things.
Return to the example with the sword. It is at least plausible that it is permissible
for me to harm myself rather than defending myself with the sword. Were that the
right comparator, it would be proportionate for me to impose signicant harm on
an attacker to prevent myself from suffering a very trivial harm, or even from being
beneted by the attacker, on the grounds that this state of affairs is better than one in
which I harm myself. The world in which I am harmed and my attacker remains
unharmed is surely worse than the world in which I defend myself against a trivial
threat but impose a lesser harm on my attacker. That fact would be insufcient to
establish that defending myself in the latter way is proportionate.
I think that this investigation suggests that we are going down the wrong track
altogether when we compare the overall value in the world in which we impose
punishment on people with the overall value in the world if we did something else.
What is important in determining whether punishment is proportionate is not the
overall consequences of what we do compared with what we might otherwise do,

12
Counterfactuals and the Proportionality Criterion.
13
See Proportionality and Necessity 130.
the com parat ive value of p un ishm e nt 341

but rather the value of the resources that we would expend in defending ourselves
and the claims that others would have on those resources.

ii) A Better Approach


Here is another approach to consider. It fails, but it is an instructive failure. In
evaluating whether punishment is proportionate, we might compare the harm of
punishment with the improvement that punishment would make to our range of
options. Again, let us consider the way in which this might work in the sword case.
Were I to defend myself with the sword, you would be harmed and my sword
would be damaged. Were I not to defend myself, I would be harmed and my
sword would not be damaged.
If the sword is valuable enough to me I will not want to use it; I would rather
have my jaw broken. But suppose that the sword is less valuable to me than a broken
jaw. In that case, my circumstances are worse if I am not permitted to use the sword.
But how much worse are they? That depends on the value of the sword. The value
of the sword is to be determined not by what I will do with it, or what I could
permissibly do with it, but by the extent to which it improves my set of options.
The right comparator, in that case, might be thought to be between the harm that
I will cause you and the overall benet that I obtain in harming you. In other words,
in determining whether it is permissible for me to harm you I must not only take
into consideration the harm that I would suffer were I not to do this, but also
discount from that the extent to which it is costly to me to harm you.
But this seems wrong as well. If I own the sword, we might think that it is up to
me whether I wish to use it to defend myself, even if using it will do me more harm
than good. You have attacked me. It is my sword. You can hardly complain about
my using the sword to defend myself on the grounds that the sword is very valuable.
After all, as it is my sword, no one could prevent me from simply destroying the
sword for no reason at all. And if no one can prevent me from destroying the sword
for no reason, the value of the sword has no bearing on whether it is permissible for
me to destroy it in order to defend myself against your wrongful attack. It might not
be prudent for me to do that, and it may even be morally wrong, but that has no
bearing on the permissibility of my defending myself. I could permissibly defend
myself with the sword even if it would make me worse off overall. This is the
intuition that motivated the earlier conclusion that we ought to look at the least
valuable permissible alternative to averting the threat.
But the conclusion that we should draw is not that the appropriate comparator is
the overall value of the least valuable permissible alternative. It is rather that the
relevant value of the resources that we expend in defending ourselves depends on
the claims that others would have on my resources if I were not to defend myself. In
the case under consideration, it seems plausible that we should assign no weight to
342 p rop ort i onate p un i shm e nt

the fact that I damage the sword in defending myself because, were I not to use the
sword to defend myself, no one else would have a claim on the value of the sword.
If that is right, how should the fact that we will expend resources gure in
proportionality judgements where others would have a claim on my resources?
Heres how. We consider the circumstances in which I dont defend myself.
What claim would others have on the resources that I would have expended in
defending myself? If others would have a claim to those resources, we consider the
value that they would have to those others. The greater their value to those others,
the more difcult it will be for me to claim that I acted proportionately in destroy-
ing the sword in the course of defending myself.
This view has the plausible implication that any disvalue that the resources may
have were they used permissibly cannot contribute to our judgements regarding
proportionality. The fact that I could permissibly use the sword to harm myself
would not contribute to the proportionality of my harming you to avert the threat
that you pose. The minimum value that a resource can have in the proportionality
calculation is zero. Where there is a range of things that I could permissibly do with
a resource, including some disvaluable things, we should conclude that the cost of
my using that resource in defending myself has no weight at all. Why? Because the
fact that I could permissibly use a thing in a negative way is no reason in favour of
my using it in self-defence instead.
Before considering how these judgements are to be made in the case of punish-
ment, let us investigate the plausibility of this idea in the other contexts we have
been considering. First, consider the context of individual self-defence. Suppose
that the sword on my wall in the previous example belongs to someone else. Were I
not to use it in self-defence I would have to return it to its owner. The sword, if
returned to its owner, would have value. And in that case the fact that I will damage
it in defending myself plays a signicant role in determining whether it is permissible
for me to use it. And that seems the right judgement to make.
Now return to the case where one state has invaded part of the territory of
another. If the state that has been invaded were to go to war this would be
expensive for it. But imagine that the state did not go to war. It would bear some
loss of territory alongside various other costs. Against these costs we must balance
the value that the war chest would have for doing other things. We consider the
claim that others would have to the resource. The state would not be permitted
simply to destroy the money or spend it on something frivolous.14 And that is
particularly so as some of its citizens will have been harmed by the invasion. It
would be required to spend it on those citizens in one way or another, perhaps on
compensating those who would have been ejected from the territory as a result of
the invasion. The more fully the country is capable of compensating those who

14
For a contrary view, see D Mellow Counterfactuals and the Proportionality Criterion.
th e com parat ive value of p uni sh m e nt 343

would have been ejected with the war chest, the less justication the country has for
going to war. And this also seems like the right judgement to make.
As I suggested, if the country acts permissibly in this case, and the country does
not go to war, the war chest will have some value. We can call this the required value
of the war chest. The required value of the war chest is the minimum value that the
war chest has if the state were to respond to valid claims that others have to it. In
determining whether it is proportionate for a country to go to war, the greater the
required value of the war chest, the stronger our objection to any decision to go to
war. You ought to be spending the money in another way, we will say. We can say
a similar thing about the sword. Returning the sword to its owner, which I would
be required to do were I not permitted to defend myself with it, would be valuable.
I might not be justied in defending myself with it were the value to the owner
sufciently great.
Now let us turn to the case of punishment. Our criminal justice institutions are
expensive. We can call the money and effort that we spend on punishment our
criminal justice resources. The fact that our criminal justice resources are signicant
can count against the judgement that punishment is a proportionate response to
crime. But just as in the case of war we need not show that our punishment
institutions are a better use of our resources than anything else that we could do
with them. There are some very good things that we could do with the money to
which others have no valid claim. It does not follow from the fact that it would be
morally better if we were to spend the money on development aid that punishment
is disproportionate.
The question we must ask, in determining whether punishment is proportionate,
concerns what I have called the required value that our criminal justice resources
have. In investigating that we will need to consider what the state would be
required to spend those resources on were it not to set up criminal justice institu-
tions. And that depends on the valid claims that others would be able to make on
those resources. If potential beneciaries of development aid could not require the
state to spend the money on them were it not to punish offenders, the fact that it
would be good to do that plays no role in determining whether punishment is
proportionate.
If it would not be required to spend the resources on anything valuable, the fact
that punishment is expensive would play no role in judgements about proportion-
ality. But it is not plausibly true that the state would be permitted to spend the
resources that it uses on punishment for something valueless. If the state did nothing
with our criminal justice resources many people would be very insecure and some
would suffer grave harms. We ought to spend those resources to improve security in
other ways, for example by educating people, or by funding a more extensive
system of compensation for those who are harmed, or by funding some system of
civil detention.
344 p rop ort i onate p un i shm e nt

We might even be permitted to spend some of the resources on other things,


some of which may be less valuable than security. For example we might spend
some of the money on the arts or on road building. Insofar as we would be
permitted to do these things with the resources that we currently spend on criminal
justice it becomes easier for us to justify having those institutions. Were we not to
spend the money on criminal justice, we might say, we would be permitted to
spend it on something worse.
In order to determine whether this is so we need to know whether there is a
contrast between states and individuals with respect to resources. I have noted that
individuals need not do the best thing by themselves or others with their resources.
There are many disvaluable things that it is permissible for individuals to do. But we
might doubt whether this is true of states. Perhaps states have an obligation to get
the best out of their resources. Perhaps, were government ofcials Herculean, there
would be only one right answer to the question of how to spend state resources.
This is a large and difcult question in political philosophy and I will not attempt to
answer it.
Before moving on, we should also remember that it is not only true that our
criminal justice institutions are expensive in themselves. Their cost depends on their
scope and use. One powerful objection to over-punishment is that the resources
used for punishment could be spent in other ways. The more we punish, the more
expensive it is. The conclusion established in the previous section about the
proportionality of having systems of punishment has equal pertinence when we
consider the scope and use of the criminal justice system. It is an objection to every
increase in the scope and use of the criminal justice system that were we not to use
our criminal justice resources in that way, we would be required to use them in a
way that would benet people in other ways.
The expansion of the criminal law and lengthening prison sentences are objec-
tionable for many reasons, but one of them is cost. Were we not to have expanded
our criminal justice system so much we would have more resources available.
Different people would have claims on those resources. The stronger those claims
would be the stronger reason we have to think that the punishments that we impose
on offenders are disproportionate.
Furthermore, if there are compelling alternatives for the use of our criminal justice
resources which are comparably effective in meeting the threats that criminal
justice now meets it may be that the justication for the criminal justice system is
diminished to vanishing point. Suppose, for example, that expanding the system of
compensation would make people better off than the criminal justice system, using
the same resources. Were we not to have a system of criminal justice perhaps we
would be obliged to expand our system of compensation in that way. That
alternative may be so good that it is impermissible to impose punishment on people.
I will explore this idea a little further below.
the p un ish me nt cap 345

IV. The Punishment Cap


One concern about consequentialist accounts of punishment is that they would
permit punishment of offenders to an extent that is obviously disproportionate.
If the crime rate could be controlled very substantially by punishing every thief with
the death penalty, it would be permissible to do that. Retributivists typically argue
that our non-consequentialist intuitions about punishing the innocent apply with
equal force to disproportionate punishments. Retributivists defend their view by
claiming that it has intuitively plausible implications for proportionality. They
suggest that they can naturally argue for a cap on punishment on the grounds that
any more punishment would involve punishing the offender more than she
deserves.
As is familiar, it is difcult to know what retributivists think that just deserts
requires in terms of the measure of punishment. I am not sure how to make progress
in establishing what the right answer is. Perhaps there are levels of punishment that
are obviously disproportionate by retributivist lights, though. For example, punish-
ing theft of a paper clip with death, or punishing rape with a small ne, are
obviously disproportionate punishments.
It is more difcult for retributivists to show that they can justify a plausible
relationship between the harm culpably caused by offenders and the harm that it
is permissible to impose on them. Consider the magnitude of punishment that must
be imposed on a person in response to a harm that the person has culpably brought
about. We might suppose, on the retributivist view, that the suffering that it would
be proportionate to impose on offenders must be either uniformly greater than the
harm that they culpably bring about or uniformly less than the harm that they
culpably bring about.
Yet it is not plausible that there is a uniform relationship between the magnitude
of harm that offenders culpably bring about and the magnitude of punishment that
ought to be imposed on them. Consider theft of a compact disc. In this case, it is
surely permissible to impose on the thief a greater magnitude of harm than he has
culpably caused. The idea that taking one of the thiefs compact discs away would
be sufcient punishment in this case is unappealing. There is an obvious instrumen-
talist rationale for this conclusiongiven the low rate of detection of theft, such a
modest punishment would result in a great deal of theft. Retributivists may defend
the same conclusion on the grounds that it is tting that offenders suffer a harm that
is greater than the harm that they culpably cause.
Now consider some serious crime such as rape or murder. In that context, the
idea that it is tting that offenders suffer a harm that is greater than the harm that
they culpably cause seems barbaric. Could we really think it tting that rapists suffer
a fate worse than rape or that murderers suffer a fate worse than death? What
346 p rop ort i onate p un i shm e nt

explanation can retributivists give to avoid this awful conclusion without at the
same time rendering the criminal law implausibly weak in its response to theft?

i) Limiting Punishment
Let us see whether the duty theory has more attractive implications than this. Just as
it might seem difcult to motivate a prohibition on punishing the innocent, so it
might seem difcult to motivate a proportionality restriction on punishment. To
illuminate this concern, consider the following example. An out of control car is
coming toward me. I will be killed unless I shoot a person in the car. This will cause
the person to fall against the steering wheel and divert the car away from me. There
are two variations on this case. In Shoot the Driver I could divert the car only by
shooting the driver, who was reckless in allowing the car to go out of control. In
Shoot the Passenger I could divert the car only by shooting the passenger.
Drawing on what I said earlier in the book, it is wrong for me to shoot the
passenger. If I were to do so I would harm him as a means to save myself. But
perhaps it may be permissible for me to shoot the driver. This might be so for two
reasons. First, the driver is causally responsible for allowing the car to go out of
control and secondly he could have avoided being harmed as a means by driving
safely. It is permissible manipulatively to harm the driver, killing him, to avert the
threat that he has caused, we may conclude.
What conclusion can we draw from this discussion? Responsibility and avoid-
ability are two important conditions that help to determine when a person is liable
to be harmed intentionally as a means to avert a threat. That is why I may be
permitted to shoot the reckless driver of the car, but not to shoot the passenger. But
once these conditions of liability are fullled I am permitted to harm the person to a
degree that retributivists may nd undeserved. We would not say that reckless
drivers who have caused death deserve to die. The degree of wrongdoing may be a
factor in determining the extent to which a person may be manipulatively harmed,
but it is not the only important factor. It is permissible to harm the person out of
proportion to their wrongdoing in order to avert a threat that they have wrongfully
caused.
Nevertheless, there are limits on the degree of harm that may be imposed on a
person in the course of manipulating them to avert a threat that they pose. Suppose
that I recklessly set a remote control cart down a track where you are working. If the
cart hits you, you will suffer severe bruising. You could push me in front of the cart,
preventing you from being harmed. What magnitude of harm is it permissible to
impose on me to avert the threat that you face?
Suppose that I am weak and feeble and the cart will kill me if it hits me. It would
not, I think, be permissible for you to push me in front of the cart in that case, even
though I was reckless in creating the threat. There are two reasons why this would
be disproportionate. First, as we have seen in chapter 11, it is more difcult to justify
the p un ish me nt cap 347

manipulative harm than it is to justify eliminative harm.15 Pushing me in front of the


cart would involve manipulatively harming me. Secondly, death is a harm from
which I will never recover. If I am killed I am deprived of all of the future goods of
life. If you are severely bruised, in contrast, you will recover and enjoy many of the
future goods of life.
This also suggests that there is a cap on the amount a person may be punished.
For, in justifying punishment, I suggested that a person might permissibly be
harmed manipulatively only to the degree that he would have been liable to be
harmed to avert the threat that he posed to others. His liability to be punished is
derived from his principal obligation not to harm others, and hence the costs that he
must bear may not exceed the costs that he would have had to bear to avert his own
threat. We ask: to what degree would it have been permissible manipulatively to
harm him to avert the threat that he posed had we been able to do that?
Now that the threat that he has posed has been realized, he is liable manipula-
tively to be harmed to avert future threats that we face. But he may be harmed to no
greater a degree than he was liable to be harmed to avert the initial threat that he
posed to us. A person who has recklessly bruised another person with a cart cannot
be punished with death. And that is true because it would have been wrong
manipulatively to harm that person, killing them, to avert the threat that they
caused.
As I noted in chapter 8, in standard self-defence cases, the proportionality
relationship gives a heavy preference to the well-being of the person who is attacked
compared with the culpable attacker. If you are culpable in posing a threat to me, it
is permissible to kill you to prevent you from forcibly removing my arm. That is
because you had an excellent opportunity to avoid being harmed in this way. All
that you had to do was to refrain from removing my arm, something that you were
already required to do.
Does this suggest that punishing arm removers with death would fall below the
punishment cap? It is not entirely clear that it does. To draw this conclusion, we
would need to show that it is permissible to use the arm remover as a shield to avert
the threat of the loss of the arm if we could do so. And as we are particularly
concerned to protect people against manipulative harm, it is not obvious that this is
permissible.
Furthermore, it may well be that proportionality judgements are affected by a
range of considerations beyond those that we have been considering here. The
transition from self-defence to punishment may not be entirely smooth. One reason
is that punishment involves harming a person as a means to avert a threat that the

15
Larry Alexander thinks that there are no serious proportionality limits on his threat-
based theory of punishment. See n.3 above. One reason why this conclusion might follow
from that view is that the harm imposed is intended to be eliminative rather than manipula-
tive. For concerns about this theory of punishment, see chapter 12.
348 p rop ort i onate p un i shm e nt

person is not responsible for creating. I argued that this should not rule out
punishment on general deterrence grounds, but it may make a difference to
judgements of narrow proportionality. Suppose that I hire a hit man to harm you
to degree x. It may be permissible for you to use me as a shield to avert the threat
even if the harm that I will bear is signicantly greater than x, y. But it does not
follow that it would be permissible for me to be harmed as a means to the same
degree to avert a threat that I am not responsible for creating. Responsibility may
make a difference to proportionality judgements. So if the threat is realized, the
magnitude of punishment that it is permissible to impose on me to avert future
threats may be less than y, perhaps even signicantly less.
Furthermore, the passage of time may make a difference to proportionality
judgements. Suppose that I have wrongfully harmed you to magnitude x. The
magnitude of harm that you may impose on me to avert a future threat that you face
may depend on the time between my original harming and the threat that you face.
Many of us are less inclined to punish people a long time after the original crime.
Time may also have an effect on judgements of proportionality. Suppose that I
could use you as a shield to avert a harm of magnitude x immediately after I have
been harmed. Given that I am not responsible for creating the threat, the magnitude
of punishment that it is permissible to impose on me will be less than y from the
previous discussion. If the threat that I face occurs later in the day, or the next day,
or the next year, perhaps my obligation diminishes accordingly.
Finally, our judgements about proportionality may be affected by the attitudes of
the person harmed. Take a repentant offender. We might think that it is permissible
to harm him less than an unrepentant offender. And this may be for the reason that
the association between his present self and his offending action is now weaker than
it is for an unrepentant offender. I do think that the duties that repentant wrong-
doers have to act for the sake of victims are weaker than the duties that unrepentant
wrongdoers have. If so, by distancing themselves from the wrongdoing, they
diminish the extent to which it is permissible to harm them as a means to avert a
threat.
I suspect that each of these factors is of considerable signicance in explaining
why many of us think that the harm that may be imposed on a person, even
manipulatively, in self-defence is considerably greater than the harm that may be
imposed on a person in punishment for reasons of deterrence.

ii) The Death Penalty


Nevertheless, our discussion does leave the death penalty open as a possibility; or at
least it suggests that punishment by death might fall below the punishment cap in
some cases, at least in principle. Considerations of time and of responsibility might
rule out the death penalty, depending on how important they are. But perhaps we
cannot object to the death penalty on the grounds that there is a moral cap on the
the p unish m e nt cap 349

maximum level of punishment for all crimes, a maximum that falls below death. It
may be that the death penalty is objectionable on other grounds, however. I have
already outlined some of the considerations that might militate against the death
penalty in chapter 13 when we considered whether it is permissible to distribute the
organs of offenders to cure the sick. Let me add some further comments to that
discussion.
Some people argue that the death penalty has no instrumental benets at all. It
does not deter crime effectively. But even if there are benets of that kind, it may be
that when we compare these benets with other modes of punishment, they are
insufcient to outweigh the great extra cost that is imposed on the offender.
Although some people think otherwise, I believe that it is very much worse to be
killed than it is to be imprisoned for life. The reason for this is that many of the
goods of life are still available, at least in principle, if one is imprisoned for life.
Knowledge, including self-knowledge, is still available to the wrongdoer. He has
greater opportunity to understand the meaning of his life. Although his relationships
with others are impaired through imprisonment, they are not eliminated altogether.
He may come to develop friendships in prison, he may come to do valuable work,
he may maintain some relationship with family and friends, and so on. Of course,
many of these things do not occur in prisons at the moment. But they at least might
occur without any serious loss in the deterrence value of punishment. The benets
of the death penalty would need to be very great indeed if they are to outweigh this
enormous difference in the cost to the offender between being killed and being
imprisoned for life. It is difcult to believe that they will be great enough in
reasonably favourable social conditions.
Furthermore, to this question of narrow proportionality we must add wide
proportionality considerations. The costs to the family of an offender of having
the family member killed are surely much greater than the costs of having that
family member imprisoned for life. If the family member is killed, there is little hope
for that persons life to go better than it has.16 If the person is imprisoned, the family
still have hope. They can hope that the offender was wrongfully convicted, but also,
even if that hope is unrealistic, that he will come to do some worthwhile things with
his life to make it a more valuable life overall.
And there are more familiar practical concerns with the death penalty. The
existence of the death penalty may make it more difcult to get juries to convict
offenders of serious offences. If we discover that a person who has been killed has
been wrongly convicted, we can do very little to compensate that person. That is
not true with respect to the person who has been wrongly imprisoned. As our

16
I say little rather than no hope, because how someones life goes may depend in part on
things that happen after they die. For a classic discussion, see T Nagel Death in Mortal
Questions (Cambridge: CUP, 1979).
350 p rop ort i onate p un i sh m e nt

system of criminal justice is fallible, we have strong reasons only to impose com-
pensable harms on offenders.
Perhaps these arguments are insufcient to rule out the death penalty if using it
saves many lives. It is sometimes suggested in the US context that the death penalty
does have powerful deterrent effects, warranting or even requiring its use. In an
inuential article, Hashem Dezhbakhsh, Paul Rubin, and Joanna Shepherd17 argue
that, on average, each execution in the United States results in 18 fewer murders,
with a margin of error of plus or minus 10. They aim to show this by examining
differences in the murder rate in counties in the USA. Stated in this bare way, their
analysis seems to compel the view that the use of the death penalty is proportionate.
But even if their analysis is compelling, and I have little expertise to evaluate it, it
is difcult to believe that it makes a strong case for the death penalty overall as part
of a theory of justice. As many European countries have shown, fostering social
solidarity and a reasonable level of economic equality with a strong commitment to
human rights, including abolition of the death penalty, has a much stronger track
record of ensuring that a reasonably low crime rate can be achieved and stably
maintained with much more moderate punitive systems. It is difcult to imagine
many European countries being motivated by the study I just mentioned to
reinstate the death penalty in the hope of reducing their crime rates still further!
There is a more precise way to put this point. When we consider whether to
impose the death penalty, we consider whether it is permissible to impose a great
burden on offendersthe difference between life imprisonment and death. In
order to justify this we must not only look at the effects of doing this compared
with the status quo. We must compare it with other things that we could do to
achieve the same end. Suppose that each death imposed saves 10 lives. We now
need to consider other policies that might save the same number of lives. We could
do so, for example, by providing better education, improving the conditions of
social housing, providing more effective policing, gun control, and so on. The costs
of these policies will be spread amongst the general population and will cost each
person only a small amount.
Some of these policies are already required by an adequate theory of justice
irrespective of their effects on the crime rate. Citizens cannot complain about
having these costs imposed on them in order to prevent the offender being killed,
for citizens are already required to bear those costs. The question, then, is whether
offenders must bear a great extra cost to improve security or rather whether the
general population could each bear a small further cost for the same end. Those who
think the former may be moved by the fact that, given his conduct, the offender
ought to be required to bear the cost of offending.

17
Does Capital Punishment have a Deterrent Effect? New Evidence from Postmorator-
ium Panel Data (2003) 5 American Law and Economics Review 344.
whi c h conse que nc e s are re levant ? 351

But against this, it is false that a person is required to internalize all of the costs
even of their choices, let alone the choices of others. Sometimes others can be
expected to contribute to ameliorating the effects of the bad choices of others.
Whilst choice is signicant in determining a persons liabilities it is not always
decisive where there are other ways, even moderately costly ways, of meeting the
persons burden. We already saw the effects of this in the context of self-defenceit
is wrong to prevent a culpable person imposing a minor harm on a victim if the only
way to do so is to kill the culpable person. We can extend that idea to this context
it is wrong to impose the death penalty on offenders where the same result can be
achieved by imposing a very small burden on a large population. This helps to
demonstrate what many suspected all alongthat those endorsing the death penalty
fail to appreciate the importance of social solidarity. Our obligations to help those in
need are not restricted to those who are in need by chance. They extend to those
who are in desperate circumstances through their own wrongful choices.
Even those who reject this idea of social solidarity, though, ought to reject the
death penalty. For the effectiveness of the death penalty, even if it can be estab-
lished, may well depend on the state perpetrating other kinds of economic and
social injustice which create the conditions for a high homicide rate that can then be
signicantly reduced by executing offenders. This hardly provides a compelling
justication for its use. It merely shows that one kind of injustice compels the state
to act unjustly in other ways, either by executing the offenders who offend as a
result of its unjust policies, or further failing to protect communities against high
homicide rates by refraining from doing so.18

V. Which Consequences are Relevant?


So far, we have been focusing on the question of narrow proportionality. I have shown
that there are proportionality constraints that can be derived from the duty theory of
punishment. In this section my focus is on the kinds of good and bad consequences that
are relevant to the question of proportionality. We can consider both narrow and wide
proportionality together, although we should be sensitive to the possibility that some
consequences that are irrelevant to the question of narrow proportionality may be
relevant to the question of wide proportionality and vice versa.
We have seen the way in which one kind of bad consequence (the expenditure of
resources that we use in punishing offenders) gures in an investigation into
whether our punishment practices are proportionate. What about other good and
bad consequences that punishment might have? Some people think that all of the
benets that are caused by punishment can contribute to the question of whether

18
See, further, V Tadros Poverty and Criminal Responsibility (2009) 43 Journal of Value
Inquiry 391.
352 p rop ort i onate p un i sh m e nt

punishment is justied. Punishment has a range of evil effects, and to show that
these evil effects are justied we can take into consideration all of the positive
benets that it might have. John Gardner expresses this view in the following way:
The criminal law (even when its responses are non-punitive) habitually wreaks such havoc in
peoples lives, and its punitive side is such an extraordinary abomination, that it patently needs
all the justicatory help it can get. If we believe it should remain a xture in our legal and
political system, we cannot afford to dispense with or disdain any of the various things,
however modest and localized, which can be said in its favour.19

On this view, any good that punishment does can be used to outweigh any of the
harms that it does. Whether these goods are very different to the harms that
punishment causes seems, to Gardner, not to matter.
We might doubt that this is true though. There might be some goods that cannot
guide us in deciding to perpetrate harms on others, even on offenders. In determin-
ing whether our punishment practices are proportionate, we might think that some
of the good consequences that punishment might have are what Frances Kamm calls
irrelevant utilities.20 Irrelevant utilities are good consequence of our actions that
cannot contribute to their justication. There may be some goods that punishment
brings about that do not help to make it proportionate.
Some philosophers think that there are irrelevant utilities in determining whether
acts of war are proportionate. For example, Thomas Hurka argues that the fact that
it would stimulate the economy cannot contribute to the determination of whether
a decision to go to war is just.21 That is so even though stimulating the economy is
clearly a good thing, and may even contribute to the saving of lives. We might think
a similar thing about punishment. If a system of punishment could not be justied
on grounds of deterrence, given the harm that it causes to the offender and to
others, the fact that institutions of punishment might stimulate the economy cannot
contribute to defending that system.
Hurka thinks that whilst not all of the good consequences of war can contribute
to justifying it as proportionate, all of the bad consequences can make such a
contribution. The fact that a war will be costly is surely a reason against going to
war, even if the fact that it is economically benecial cannot be a reason in favour of
going to war.22 And we might draw the same conclusion about punishment. If a
system of punishment is, overall, economically advantageous, or helps to produce
great art, this does nothing to help to justify that system. If the system of punishment
is, overall, economically disadvantageous or destroys or prevents the creation of
great art this counts as a reason against it.

19
Crime: In Proportion and Perspective in Offences and Defences: Selected Essays in the
Philosophy of Criminal Law (Oxford: OUP, 2007) 215.
20
Morality, Mortality vol.1: Death and Whom to Save from It (Oxford: OUP, 1993) ch.8.
21
T Hurka Proportionality in the Morality of War; Proportionality and Necessity.
22
Proportionality and Necessity.
wh ic h conse que nc e s are re levant ? 353

If this is the right view, particular economic advantages of the system can
contribute to its justication in one limited sense: they may offset its economic
disadvantages. The fact that it is costly for the government to build and run prisons
may be offset in part by the fact that the building and running of prisons is an
industry that may contribute to economic growth. This view suggests that when we
make judgements about proportionality, we cannot trade all different kinds of
values against each other. It is not true that any kind of benet is capable of justifying
any kind of cost. It is much easier to justify harming a person by preventing harm to
others than it is to justify it on the grounds that it is economically benecial or that it
produces great art to do so.23
It might be argued that it is not plausible to exclude good effects of any kind from
the justication of harming others. To explore this issue, we might consider some
examples in a different context. Suppose that Harry is pushing a cart loaded up with
the only negatives of some great photographs. He goes to cross the road, but does
not see that there is a lorry coming. I can prevent the negatives being destroyed only
by pushing you into the cart. The only harm that will be caused if I do so is that you
will suffer minor bruising. We can agree that it is permissible for me to push you
into the cart to save the negatives. This suggests that it is at least sometimes true that
it is permissible to harm a person as a means to prevent great art from being
destroyed. And we might draw the same conclusion if the cart was lled with
something of great instrumental importance, such as one million dollars. If that is
right, why should we not harm offenders in order to produce great art or to
stimulate the economy?
There are two reasons why this kind of example is not signicant to our
discussion. First, in this case I harm you to prevent harm to the photographs. Things
seem different if I harm you in order to produce a good effect. Suppose, for
example, that a group of talented photographers have gathered to photograph
some event that has been cancelled. All they have to look at is an empty eld.
I could create a dramatic scene for them by pushing you into some stinging nettles.
This will cause you minor harm, similar to that in the previous example, but it will
result in some great photographs being taken. It seems much worse to harm you in
order to contribute to the production of great photography than it is to harm you to
prevent great photography being damaged. If this is true, it helps to reinforce the
view that the great movies and novels produced about prison life are irrelevant
utilities and cannot contribute to the justication of punishment.
But now suppose that, somehow, a consequence of punishing offenders was to
prevent the destruction of great art or to prevent damage to the economy. Could
these facts help to justify punishment? Even this seems unattractive. Perhaps that is
because, whilst offenders do not have strong grounds to object to being used as a

23
See also T M Scanlon What We Owe to Each Other (Cambridge, Mass.: Harvard UP,
1998) 2259.
354 p rop ort i onate p un i sh m e nt

means to tackle the particular kind of problem that they are involved in, it is more
difcult to justify using them as a means to solve problems that are unrelated to
those that they caused. The fact that imprisoning people prevents damage to the
economy that is unrelated to criminal offending is not a strong reason in favour
of punishing them. This also helps to vindicate a conclusion that I defended in
chapter 13. It is impermissible to distribute the organs of prisoners to save people
who are dying of fatal diseases. This is not, as many people think, because it is wrong
to use an offender as a means to the good of others. It may be justied in part
because it is wrong to harm a person to tackle a problem that is utterly different from
criminal offending.

VI. Rehabilitation and Paternalism


In the light of this discussion, let us focus on two more particular goods that might
contribute to the justication of punishment. One, which I consider in this section,
returns us to the question of narrow proportionality: to what extent is punishment
justied because of any benets that it has to offenders? The other, addressed in the
next section, is concerned with wide proportionality: to what extent is punishment
unjustied because of harms that it does to members of the offenders family?
If I am right that it is not a reason in favour of punishment that it will tend to
stimulate good art, does any production of the good, rather than prevention of
harm, provide a reason in favour of punishment? The most obvious good to focus
on is the good that might be done in the future by the offender himself if he is
punished. If we pick the right mode of punishment perhaps we might rehabilitate
the offender. He will then be more likely to become a productive member of
society.
Paternalists think that the improvement that punishment might cause to the
offenders own life is central to the justication of punishment. They might
concentrate on the good that is done to the offender if he comes to recognize
that what he has done is wrong. But they might also focus on the way in which his
life can become valuable in other ways as a result of punishment. Punishment might
lead him to produce the good by encouraging him to lead a more productive life.
Of course, there are reasons to doubt that the criminal justice system does much
good to offenders. Perhaps if it were substantially reformed it might improve its
record on this score24 (though as I suggested in chapter 5 we should not be
optimistic about this).
At rst blush it seems plausible that the goods that are produced by the offender
himself can count in our judgements about whether punishment is proportionate.

24
See J Hampton The Moral Education Theory of Punishment (1984) 13 Philosophy and
Public Affairs 208.
re hab i l i tat i on and pate rnal i sm 355

But upon reection, we might doubt that this is true, or at least that it is very
signicant in helping to justify punishment. Paternalist theories of punishment have
long been criticized on the grounds that aiming at the moral improvement of
offenders by making them suffer involves a failure to respect them. Think about it
this way. One very important aim of punishment, for paternalists, is recognition
by the offender that he has done wrong. The fact that a wrongdoer comes to
recognize that she has done wrong, they might think, is a great good. I agree that
this may well be a great good: the offender comes to know herself, and
self-knowledge may well be good in itself. But, in general at least, it is wrong to
harm a person in order to get them to recognize the moral truth. Suppose that a
person has a vice; say they are selsh or greedy. I try to persuade that person that they
shouldnt be so selsh or greedy and I fail. I can get them to recognize that they are
selsh or greedy, however, if I imprison them. Perhaps if I impose suffering on them
they will come to recognize more acutely what suffering is like and this will lead
them to focus more on the suffering of others. Surely it is wrong for me to do this.
Why is it wrong? In doing so I would bypass the persons moral autonomy in
attempting to force them to accept the moral truth. A person has moral autonomy if
they have the capacity to accept moral norms and values through their own critical
judgement. We might doubt that recognition of the moral truth is truly valuable
when it is achieved through suffering because if they accept the moral truth they
dont accept it through the autonomous exercise of their own critical judgement.
But even if recognition of the moral truth by the offender retains its value when it
comes about through suffering imposed on them by others, it shows inadequate
respect for them as a person that they are made to suffer by another person to
encourage them to grasp the truth.
The constraint on making a person suffer for their own good, we can conclude, is
grounded in respect for them as a morally autonomous person. It is objectionable to
harm a person for their own good, for that interferes with their ability to determine
and achieve their own good themselves. If that is true, it seems equally true of
offenders. The offenders self-knowledge is a value that is worth pursuing. But there
is a constraint on the pursuit of that value grounded in the persons status as a
morally autonomous person. It is difcult to see why the fact that a person has done
something wrong can make any difference to the existence of that constraint.
None of this is to say that recognition is not a proper aim of punishment. As
I argued in chapter 5, the victim of the crime may well have a right that the offender
recognizes that what he has done is wrong. That right might make it permissible to
harm the offender in order to bring about recognition. In that case, we are focused
not on the offenders good, but rather on what he owes to his victim and to others.
The question is how important this is in ensuring that the punishment is propor-
tionate. Ensuring recognition is much less important than preventing harm, and so
in the case of complete crimes we may well expect that this aim of punishment is
more or less swamped by the aim of general deterrence.
356 p rop ort i onate p un i shm e nt

As I noted in the previous chapter, recognition may well have more signicance
in relation to some inchoate crimes. For some, but not all, inchoate crimes have
particular victims who may have a right to recognition. For example, if I attempt to
shoot you but I miss you have not been harmed. But I have attacked you. My
interests do not gure in the proper way in your judgement, and that manifested
itself in action, albeit a failed action. If the argument in chapter 5 is right, you now
have a right that I recognize that I ought to respect your moral status and it may be
proportionate to punish me to bring about recognition.
Even if recognition plays a less signicant role in determining whether punish-
ment is proportionate, it can make a difference in determining how offenders should
be punished. Where we have two different ways of ensuring that an offender carries
out the duties that he has incurred through his wrongdoing, we have good reason to
use the method that is most likely to benet offenders. In that case, we do not harm
the offender in order to bring about his good. The harm that we do to him is
justied for other reasons. It would be perverse to refuse to select a method of
punishment that might do him good where that is available. If some punishments do
better than others in beneting offenders, we may select those methods for that
reason, as long as no additional harm is inicted on the offender.

VII. Is the Harm We Impose on


Family Members Proportionate?
So far we have focused on the extent to which goods that punishment might
produce, in contrast to harms that it might prevent, can contribute to its justica-
tion. Now let us focus on the other side of the scales. To what extent can the harms
that punishment produces erode its justication?
One important kind of harm that punishment does is the emotional, practical,
and economic harm that it does to those people who are related to the offender.
When we punish a person, we often make their family members suffer. Their
suffering may be emotional, but it may not be restricted to that. The person
punished may be the main provider for his family and imprisonment may end his
career. A ne that is imposed on a parent will also deprive his children of resources
that may be important for their well-being. It is true that we do not directly intend
to impose these costs on family members; they are side effects of the harms that we
intend to impose on offenders. But costs imposed as a side effect of our intentional
actions are still signicant in determining whether the harm that we impose on the
offender is proportionate in the wide sense.
What role can the suffering of family members play in discussions of proportion-
ality in punishment? It might be argued that it would be wrong to think that these
harms are signicant in undermining the justication of punishment. The reason
is the harm we im p ose on fam ily m e m b e r s prop ort ionate? 357

that might be given is that to focus on these harms would involve us in failing to
respect the moral status of offenders. Our decisions about whether to punish the
offender would be grounded not in what we do to her alone but in what we do to
others through doing something to her.
In a different context, Frances Kamm argues that it is impermissible to take these
kinds of harms and benets into consideration when determining whom to save
from death. Kamm argues as follows.25 Suppose that we have a drug that we can
give to A or to B but not to both. The person who does not get the drug will die. If
we give the drug to B, B will be able also to save C from death. A is not able to do
that. Kamm thinks that it is wrong to take Bs ability to save C into consideration in
deciding to whom we must give the drug. When we consider whether to save one
person or another, we ought not to take into consideration the usefulness that the
person would have for other people. That would, she thinks, violate the injunction
against treating a person as a means. A is not saved on the grounds that he is not
useful.
This argument is not convincing, at least if it is generalized beyond the context of
rescue to the context of deciding whom to harm. We can see this very clearly by
considering some examples. Suppose that yet another trolley lled with explosives is
heading towards a junction. If I do nothing the trolley will explode and many
people will be killed. If I divert it down the track to the left there is one person on
the line. If I turn the trolley to the right there is another person on the line. But the
person on the line to the right is a climber who is holding a rope and there is another
climber on the other end who is halfway up a cliff face. If I turn the trolley to the
right the person on the track will be killed and the second climber will fall to his
death. In this case, it seems clearly permissible to take into account the fact that the
rst climber is the means sustaining the life of the second climber.
Or imagine that a terrorist has hijacked a bomber. He has gassed a number of
innocent civilians whom he has taken hostage and who are unconscious in the back
of the plane. The hostages are otherwise unharmed. The terrorist is ying over an
airbase that he intends to bomb. We have managed to evacuate most of the people
from the airbase, so there are fewer people in the base than there are on the plane.
I can shoot the pilot in the head with my high-powered rie. But if I do that the
plane will crash into the sea and the hostages will die. If I dont do it, the airbase will
be bombed. I will then be able to kill the pilot and rescue the hostages. The lives of
the hostages are very signicant in my judgement about what to do. Perhaps I may
shoot down the plane in this case, but that is not because the lives of the hostages are
irrelevant to my decision.
If my judgements about the previous two examples are right we have good
reason not to harm a person if harming that person will interfere with that persons

25
See Morality, Mortality vol.1 11011.
358 p rop ort i onate p un i shm e nt

ability to prevent another person from being harmed. This does not violate the
injunction that we must not treat people as a means. However, there are two ways
in which this conclusion must be qualied. The rst returns us to the discussion of
counterfactuals that I considered above. The two cases that I have discussed involve
duties that the person harmed has towards others. The person holding the rope has
an obligation not to let go and the pilot has an obligation to keep the plane in the
sky. If we decide not to harm the person, that person would be required to sustain
the lives of other people. And the fact that we would prevent them from fullling
this duty by killing them means that the harm is signicant in proportionality
calculations.
It is more plausible that, in determining whether punishment is permissible, we
need not be concerned that we prevent the person punished from doing good
things that they otherwise would have done, but that they would have no obliga-
tion to do. Suppose that the offender is a great artist. As he has no obligation to
produce great art, the fact that we would prevent him from doing so by punishment
may not matter in determining whether his punishment is proportionate. In punish-
ing the offender we deprive him of a resource. And perhaps, as before, in determin-
ing whether it is proportionate to do so we must consider the minimum value that
the resource has, consistent with him acting permissibly. We might think this on the
grounds that although great art is a good it is not a good that others are entitled to
receive. But if the offender has an obligation to provide for his family, the fact that
we prevent him from fullling this obligation by punishing him is signicant in
determining whether punishment is proportionate. What matters is whether we
interfere with the ability of offenders to full other duties that they have.
Secondly, it may be that the strength of a persons objection to being harmed is
reduced if that harm comes about as a result of harm that is caused to a liable person.
Why might this be so in the cases we have considered? Perhaps we might think that
the passengers in the plane, whose lives are being sustained only by the terrorist pilot
continuing to y the plane, count for less than the people on the airbase. Perhaps we
might argue for that on the grounds that we could avoid being held hostage simply
by declining to y. When we y, the strength of our complaint about being harmed
in order to prevent the aircraft in which we are ying harming others is to some
degree weakened. But this provides at most only a very weak reason to prefer
people on the ground to people on the plane.
Now let us return to the case of punishment. When a person is imprisoned,
members of that persons family, friends, and work associates may suffer. If what
I have said is right, we must take their suffering into consideration in determining
whether punishment of the person is proportionate. The benets of punishment
must be sufciently signicant to justify harming both the offender and, indirectly,
these other people. And even if retributivism were true, so that the harm to the
offender counted in favour of punishing him rather than against it, the benet of
conc lu si on s 359

punishment would have to be sufciently great to justify imposing these costs on


others.26
But we might think that some of these people have less complaint about being
harmed than victims of crimes that would be committed if we refrained from
punishing offenders. This might be justied on the grounds that at least some
people who have voluntarily associated with the offender and now rely on him
could have avoided being harmed in this way. For example, if Harry marries Sally
and there are good grounds for Harry to believe that Sally is defrauding the
company for which she works, the strength of Harrys complaint about being
harmed when Sally is punished for her fraudulent behaviour is signicantly dimin-
ished. He had plenty of opportunity to avoid relying on Sally in that case. And even
if, given the ways of the heart, his opportunities were limited, we might think that
accepting harms of this kind is what relationships are all about; perhaps that is what
the for richer or poorer part of the marriage vow really means.
That will not be true of all friends, family members, and work associates though.
First, it may be very difcult to know that a person is at risk of offending. Secondly,
we might wish to reduce the extent to which people take the risk of a person
offending in their decisions to form relationships. And thirdly, some people, most
obviously the children of offenders, can do nothing to avoid relying on their
offending parents. Of course, being separated from ones family members is not
always a very grave harm. It is not always harmful at all. And it is also a harm that we
can ameliorate, for example by improving the rights of family members to visit
offenders or providing them with compensation. These possibilities may be impor-
tant in helping to ensure that punishment is proportionate.

Conclusions
We have considered a number of factors that might be signicant in determining
whether our punishment practices are proportionate. We should not expect hard
and fast rules to emerge from a discussion like this. For some people, this will be
unsatisfactory. They want philosophers to outline simple principles that can be used
to scrutinize and critique government policy without having to rely on empirical
considerations. That is one of the reasons why retributivism is thought to be
attractive: it does not require one to know much about the real world to determine
whether the right policy in sentencing has been adopted.
But there is a limit to what we can expect from a philosophical investigation of
the criminal law in determining whether some practice is morally permissible or
not. What we can do is to help to isolate the relevant factors that would need to be
taken into consideration in shaping punishment policy. This will often lead us to

26
See also ch.2.
360 p rop ort ionate p un ishm e nt

doubt government policy, guided as it often is by a simple-minded consequential-


ism, or populist vindictiveness. But in determining whether we are sentencing too
harshly or too lightly we must rely on empirical as well as normative investigation.
In the light of this, I want to end by pointing to a very important practical reason
why those advocating the duty view are unlikely to advocate harsh penalties. The
reason is that the marginal deterrent effects of punishment are very likely to decrease
substantially as the level of punishment increases. Why might this be so? Because
many people know very little about the gravity of punishment that they will face if
they violate the criminal law, and even if they do know they are unlikely to be
motivated not to offend by any harsh sentence that they would receive.27 There is
every reason to be sceptical about the effectiveness of harsh punishments. They
cause great harm, they cause it intentionally, and they achieve very little that is
good. We should baulk at harsh sentences, not because they are not tting, but
rather because they do a great deal of harm for no purpose whatsoever.

27
See, especially, P Robinson Distributive Principles of Criminal Law: Who Should be Punished
How Much? (Oxford: OUP, 2008).