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Against Proportional Punishment

PDF · Adam J. Kolber · May-23-2013 · 66 Vand. L. Rev. 1141 (2013)

The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished.

Crediting time served conflicts with the commonly held view that punishment should be proportional to blame. Offenders who deserve to be punished by a year in prison but spend a year in pretrial detention may be released immediately at sentencing and technically receive no punishment at all.

One way to solve the mystery of credit for time served is to recognize that people don’t care about proportional “punishment” in the narrow way the Supreme Court and many theorists use the term. Rather, they seek to dispense proportional “harsh treatment.” Even though pretrial detention is technically not punishment, it is harsh treatment inflicted by the state, and most believe offenders deserve credit for it.

Shifting focus to proportional harsh treatment, however, solves one problem at the expense of several others. For if state-inflicted harsh treatment before conviction counts for purposes of assessing proportionality, then surely state-inflicted harsh treatment afterward should count too. While we could try to salvage proportionality by better measuring harsh treatment, I explain the sometimes absurd consequences of doing so.

Even though retributivist notions of proportionality are central to sentencing systems around the world and are widely thought to undergird core notions of criminal justice, both proportional punishment and proportional harsh treatment have profoundly counterintuitive implications. When the weaknesses in retributivist proportionality are revealed, consequentialist punishment theories look correspondingly more appealing.



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