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Course: Wireless Philosophy > Unit 8
Lesson 9: Proportionality in punishmentProportionality in punishment
In this wireless philosophy video, Barry Lam (Vassar College, Hi-Phi Nation podcast) discusses several alternative approaches to determining how severely offenders should be punished for the crimes they commit.
View our punishment learning module and other videos in this series here: https://www.wi-phi.com/modules/punishment/. Created by Gaurav Vazirani.
Video transcript
[Music] Hi, I’m Barry Lam, associate professor
of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy
that turns stories into ideas. In this video, we’ll discuss different
approaches to figuring out how severely the government should punish
offenders for the crimes they commit. In 2004, a 39-year-old
man was caught shoplifting two Michael Jordan
jerseys worth a total of $120. In Louisiana, thefts
over $100 are felonies. Because he committed a felony, the man is now serving a sentence
of life without the possibility of parole. This doesn’t seem just, but how do we determine the proper length
or severity of a punishment for a crime? The answer to this question depends on what you
think justifies punishment in the first place. If the purpose of punishment is to promote the greatest social good, or to prevent a lawbreaker
from reoffending in the future, then it’s a wholly empirical matter
how to punish a particular crime. So, what does the research show? It turns out that, statistically, the typical murderer is someone who
kills a close family member or acquaintance in the heat of the moment. Given the nature of this crime, the risk of punishment doesn’t
seem to effectively deter it. And no punishment, no matter how severe, prevents these offenders from
committing similar crimes later, because it’s rare for them
to reoffend like this anyway. So, as a means to social good
or the prevention of future crime, the punishment for murders of
this kind shouldn’t be very severe, and may not be justified at all. On the other hand, imagine a serial candy thief who
can’t or won’t change her behavior even though she keeps getting
increasingly long prison sentences. If it turned out that the
only effective method of preventing her from
reoffending is something extreme, like amputating her arms or
lobotomizing a certain part of her brain, then that would be an empirically
tested and thus justified punishment, according to this view. But neither of these
punishments seems fitting. Punishments that seem
too extreme or too light relative to the crime are
seen as unfair and unjust. This leads philosophers
to conclude that underlying our judgments about what counts as just punishment are judgments
of what someone deserves rather than what will best
promote social good or deterrence. We want murderers and thieves to get
what they deserve, no more and no less. The empirical considerations as
to what does or doesn’t work for deterrence or rehabilitation are
secondary, if they’re relevant at all. Giving someone what they deserve means being guided by moral
considerations of proportionality. The punishments must fit the crimes. And there are two ways justice systems try to
determine which punishments fit which crimes. The first what is what
guides some societies to judge that the death penalty is a fitting
punishment for the crime of murder, or that caning is a fitting
punishment for unjustified assault. Inflict on the perpetrator a harm proportionate to the harm
they inflicted on their victim. This attempt to directly fit the punishment to the specific crime is called
“cardinal proportionality.” Justice is a matter of inflicting
proportionate harm on the offender. The problem is that, for many crimes, returning proportionate harm seems
deeply unjust, or simply makes no sense. For instance, punishing a
kidnapper by kidnapping their child does not strike many people as
justly proportionate punishment. And it’s not clear what exactly it
would mean to return comparable harm to the offender for crimes like jaywalking or illegally assembling on public property. The second way to calculate
proportional punishments is called “ordinal proportionality.” These theories begin by ranking crimes on
a list, from most to least morally heinous. There’s widespread
agreement, for example, that murder is worse than assault,
which is itself worse than candy theft. Once there’s agreement
on the ranked list of crimes, the government can set
punishments for these crimes by making sure that the relative severity of each punishment follows the ordering of crimes on the list. If murder is twenty times
worse than candy theft, then the punishment for murder better be twenty times more
severe than for candy theft. This is very close to how
punishment actually works in the US. There are groups of people, called
sentencing commissions, who get together, take rankings of crimes and lengths
of prison time, and try to calibrate them. Then they send out those guidelines
to judges to use in sentencing. But at each step in setting up ordinal
proportionality, misjudgments can lead to injustice. We might get the ranking of crimes wrong. Or we might be too harsh in setting up
a punishment for one crime on the list, say, 10 years in prison for
shoplifting a ten dollar t-shirt. Once that happens, we’re committed to being even
harsher for crimes higher up on the list, leading to absurdly disproportionate sentences
like life in prison for stealing two jerseys. More generally, any system of punishment
that focuses solely on giving offenders their proportional deserts --
whether cardinally or ordinally -- ignores considerations of social
goods like deterrence and rehabilitation, thereby exacerbating the social,
moral, and monetary costs of crime. Consider the debate over providing free
books and education to the incarcerated. These are empirically
the most effective means to rehabilitate the incarcerated and
prevent their future involvement in crime. Many state legislatures, and a
significant portion of the public, oppose these programs
because they believe that inmates do not deserve these opportunities. Even law-abiding citizens, they argue, who are far more deserving
don’t get free books and education. What inmates deserve is the
opposite, the withholding of these goods. Judgments of what people
deserve in this case directly conflict with what is best for society at large. So, while it can be challenging to figure
out what punishments fit what crimes, often the harder
question societies face is: What social goods are we willing to give up to ensure that offenders
get their just deserts? What do you think? [Music]