Revenge, Justice, and the Law

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18 THE WAYNE LAW REVIEW [Vol. 50:4 sole justification for imprisonment would suffice, since one could argue that if all we are concerned with is that society be protected, that end could be met by less drastic, and less costly sanctions. For instance, the offender could be fitted with an electronic bracelet which would monitor his travels, be placed in a secure half-way house, and prohibited any contact with minors. If such a plan, or any other one, would be found to adequately protect society, the goal of incapacity would be met. But would such a plan be an adequate, and thus just punishment? I would argue that it would not, because of the lack of proportionality between the crime and the punishment. Society, through its laws has recognized that for the crime of sexual abuse on a minor, a proportional punishment must include more than a relatively slight abridgement of one’s freedom of travel. 68 And yet, electronic monitoring would only fail the proportionality test if we include within the standard of measuring proportionality the requirement of suffering. Indeed, the whole concept of proportionality of punishment is based upon the assumption that punishment includes suffering. Proportionality weighs the seriousness of the crime to the severity of the punishment. 69 68. See, e.g., TEX. PENAL CODE ANN. § 12.32 (Vernon 2005) (punishing first degree felonies, which includes aggravated assault of a child pursuant to section 22.021, with no less than five years and not more than life imprisonment); VA. CODE ANN. § 18.2-61(C) (Michie 2005) (punishing rape with no less than five years and no more than life imprisonment); LA. REV. STAT. § 14:42(D)(2) (punishing aggravated rape of a victim under twelve years old with life imprisonment or death). 69. See generally HART, supra note 59, at 160-70; Wilson, supra note 52, at 284-87. Some critics of Retribution fault the imprecision of proportionality as one of the theory’s flaws: Retributivists very commonly direct us to make punishments ‘proportional’ to crimes. . . . Unfortunately this prescription by itself cannot tell us what punishment any particular crime deserves even if we could rank every crime in a single scale from least to most serious. For the prescription requires only that we assign greater penalties as we ascend the scale of crimes, without either supplying a starting point (the penalty for the least serious offense) or telling us by how much to increase the penalty as we move from one crime to the next in the scale. David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. REV. 1623, 1636 (1992) (emphasis added). See also Wilson, supra note 52, at 284 (“Although balancing the punishment and the injury is conceptually simple, determining the specific nature of the punishment to be inflicted presents a more difficult issue.”). Generally, I find such arguments against proportionality not to be very persuasive. Once a criminal justice system moves away from a strict “eye for an eye” approach to
2005] VICTIM’S DESIRE FOR VENGEANCE 19 Without requiring the wrong doer’s suffering as an essential element of punishment, what would the seriousness of the crime be balanced with? The level of rehabilitation, deterrence, incapacity? It is only when the guilty suffers through his punishment, can we engage in the calculus of proportionality. One could, I suppose, argue that suffering is irrelevant to punis hment; that any suffering caused by punishment is unintentional and merely incidental to the attainment of one or more of the Utilitarian goals. If so, then it would follow that any level of punishment would be permissible in order to achieve the goals. For example, why not inflict the death penalty for driving while intoxicated? Such a penalty would probably significantly reduce highway fatalities. But clearly, such a level of punishment would be unjust (and unconstitutional), because the severity of suffering would be deemed to be disproportionate to the crime. Thus, level of suffering is always relevant to the extent of punishment. In addition, one would have to question a legal system which would permit punishment to cause suffering, but would not accept the morality of allowing such suffering. B. The Morality of Punishments Which Seek To Cause Suffering A common response to the proposition that for a punishment to be just, punishment, and thus no longer requires the identical punishment for the wrong committed, it must, of necessity engage in relative comparisons, unless it opts for eliminating punishment altogether. Exact precision and uniformity are no longer possible. However, some seem to be too forgiving when they argue that the legitimacy of proportionality is only dependant upon what “society at that time considers proportional to the seriousness of the offense.” Stephen J. Morse, Justice, Mercy and Craziness, 36 STAN. L. REV. 1485, 1493-94 (1984) (reviewing NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW (1982)). (“This is then the deserved punishment at that time and in that place.”) Id. Such a blanket defense would appear to countenance any level of punishment, so long as society, at that time considers it to be proportional to the crime. Putting aside those instances where society has, with no moral basis, criminalized behavior, such as torturing and killing of individuals based purely upon their religious beliefs, affording such deference to societal standards could also result in unjust punishments for behavior which could morally be defined as criminal. For instance, what of a society, which through its legal system, permits extreme physical punishment for very slight offenses. Even while recognizing the problem of defining what is a “slight”offense, I question a definition of proportionality which rejects the setting of any limitation upon what any society, at any given time, may consider just punishment.
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