Punishment and Personal Responsibility

93
interpretation of proportionality if we believe that 20, 40 and 80 are in
themselves appropriate punishments for the respective acts. We may for
instance believe that murder is a crime that is to be punished by death.
That is, we believe the death penalty is the proportionate punishment for
murder – a view that, according to the absolute interpretation, may hold
regardless of whether the set of punishments in question contains capital
punishment or not. In this sense proportionate punishment means that
the punishment is as severe as the crime in question objectively merits. If
C ought to be punished with 10, but C is de facto punished by 20, then a
retributivist will conclude that the punishment is out of proportion as it
is too severe.
The absolute approach, which holds that wrongful acts have a value
that should be codified in the state’s penal regime, is probably the more
common retributive approach. But one could also think along different,
more relative lines. A relative interpretation of proportionality does not
care whether a set of punishment is tough or not as long as ordinal (and
ideally cardinal) proportionality is upheld. Suppose a state punishes C
with Mild(20). Assume furthermore, as we did above, that A is twice as
bad as B and B twice as bad as C, so that B is punished with Medium(40)
and A with Severe(80). This is a scenario consistent with PP. 110 But now
assume that we shift the entire set of punishments in a less severe direction,
so that Mild is 10, Medium 20, and Severe 40. In a relative sense, we
would still obtain cardinal proportionality. Given that A is twice as bad a
B, which is twice as bad as C, and given that we cannot say conclusively
for any of the acts {A, B, C} that they objectively deserve such-and-such
punishment, the situations below – one called “Soft on crime” and the
other “Tough on crime” - may be said to be equally proportionate.
110 It is consistent with PP in a formal sense at least. In the scenario above, we
might still disagree with the order of the crimes, i.e. disagree with the notion that
A > B > C. We might also reject the notion that one or more of the punishments
are appropriately severe. Finally, we may contest the idea that there is an equidistance
between A and B and B and C.