El departamento de comunicación deportiva

Proportionality is central to the idea of communicative theories of punishment but what does it mean to say that a sentence should be proportionate? The principle of

proportionality starts by saying that punishments should show equivalence by virtue of the relation they have to other punishments; referred to as ordinal proportionality. (Von Hirsch, 1993) Ordinal proportionality needs to happen in three ways. Firstly offenders should be

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punished at least as severely as other offenders who have been punished for the same type of offence. Punishing offender A more leniently than offender B for the same offence, in communicative terms would be to say that offender B is somehow more blameworthy than offender A. Offender A has committed a petty theft and is found guilty after a fair trial, she receives a fine of £100. Offender B has also committed petty theft and following a guilty verdict at trial receives a sentence of 1 year imprisonment. The message that this conveys to the offenders in question, to the victims of the crime (if there are any) and to the rest of the community is that offender B is somehow more blameworthy, has committed a more serious crime than offender A (so has either caused more harm or is more culpable). If the offender is neither more culpable nor causes more harm, then the sentence for offender B seems to run counter to our intuitive notion of fairness and justice.

It seems to be an essential element of natural justice that if offender A and offender B have committed the same type of offence and are equally culpable and have caused equal harm, then they should receive the same severity of punishment. The level of censure expressed and communicated to both offender A and offender B should be the same because both offenders have committed the same sort of offence. I will consider later how offender B could actually be more blameworthy than offender A, even if they have

committed the same offence.

Secondly, the punishment should reflect how the community via the justice system, views the seriousness of the crime committed. The harshness of the sentence is a visible and public embodiment of the seriousness of the wrong that has been committed. (Duff, 2001) The state has made clear through the law that certain actions are prohibited, in undertaking such an action the offender is punished according to the law and the

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seriousness of the punishment gives a clear signal to the community that tells us how seriously the state takes the commission of such an action. Therefore the more serious the offence, the more severe the punishment and so the greater the censure expressed and the more seriously the state and the community views that offence. The idea that the more serious the offence the more serious the punishment is embedded into our societal view of justice. What if it was discovered that offender A not only committed a petty theft but in the commission of that crime also stabbed and killed the shop assistant from whom she was stealing. Following the trial process offender A receives a £100 fine for both offences. The sentence of a fine very obviously does not reflect the seriousness with which as a society we view the crime of murder. (Duff, 2001 p133) The sentence of a fine will show to the

community that the crime of killing a shop keeper during a theft is not viewed as a very serious crime, as it is has not attracted an appropriately harsh punishment.

Conversely what if offender B receives a 5 year prison sentence for a petty theft alone? This sentence also seems to be grossly disproportionate in relation to the

seriousness of the crime that has been committed and in addition to being disproportionate to the sentence that has been received by offender A for killing the shop keeper. Again, the harshness of the punishment does not match an intuitive perspective of the level of

seriousness of the crime. The punishment needs to have some proportionate relationship to the view of the community, via the state, as to the seriousness of the crime. In the case of nations that practice participatory democracy this is entirely appropriate and just, but such a view of proportionality could be less appropriate in oppressive states.

There needs to be some sort of mechanism which enables the seriousness of the crime to be reflected through the seriousness of the punishment. This is essential for the

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communicative theory of punishment because the punishment is communicating censure to the offenders; a sentence which is proportionate to the crime communicates the right amount of censure to the offender and reflects the seriousness by which that crime is viewed by the community and state. It is only through this that the offender will be afforded the ability to reflect on the seriousness of their actions, if the punishment is not

proportionate then the offender will not be able to effectively engage with the process of repentance, reconciliation and reform, (Duff, 2001 p107-112) because the blameworthiness of the offender will not have been conveyed through the punishment.

Finally, proportionate sentencing requires that there should be appropriate spacing between rank orders of punishments and crimes. (Von Hirsch, 1993 p18-19) The gaps between the seriousness of the punishments are sufficient to reflect the variations in the seriousness of offences. (Duff, 2001 p133) If we think about the aim of the punishment, to communicate deserved censure to the offender, then there has to be suitable spacing between punishments of varying seriousness. Offender A has been found guilty of murder and receives a life sentence for the crime and offender B is found guilty of common assault and receives an 11 year sentence for the crime. The spacing between the 11 year sentence for common assault and the life sentence (commonly a 14 year sentence according to the system in the UK), does not seem like an appropriate gap between the harshness of the sentences in a way that reflects the variance between the seriousness of the crimes. An ideal proportionate system of sentencing could seek to rank the seriousness of offences in order to apply the appropriate and proportionate sentence. (Von Hirsch, 1993 p6; Von Hirsch, 1987) It would seem correct to rank murder as a more serious crime than assault but there also needs to be a suitable reflection, through the sentence, of how much more

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serious murder is than assault. (Von Hirsch, 1993) Meeting all these three requirements when sentencing ensures that sentences are relatively (ordinally) proportionate.

Meeting the requirements of ordinal proportionality is evidently a requirement for communicative theories. Ordinal proportionality in itself, however, does not give a view as to what a proportionate sentencing system is or what a justice system that adhered to the principles of proportionality would look like. The principles of proportionality as outlined so far could result in a system of punishment which although was clearly ordinally

proportionate internally, did not represent a fair and just system. The requirements of ordinal proportionality could be met within a system that punished the least serious

offences, such as parking offences with a 1 year prison term and the most serious offences, such as murder, being punished by the death penalty. As long as the same types and seriousness of offences were punished by the same severity of sentences and there were appropriate spacing between those sentences then the principles of ordinal proportionality would be broadly met. Such a system would be proportionate in an internal sense, relative to itself but would not necessarily be just or fair to citizens, including offenders. In order for the criminal justice system to avoid this type of system there needs to be some

methodology which matches sentences and offences in a way that sufficiently reflects the seriousness of the offence and the seriousness of the sentence which is also viewed as fair and just. One way of doing this is to create an anchor point for sentencing. (Von Hirsch, 1993 chp2) If a fixed point can be determined for one or more offences then other

sentence-offence matches can be made, as long as that fixed point is reflective of notions of justice and fairness. This requires what is known as cardinal proportionality and is the notion that a punishment is directly proportionate to the crime not merely proportionate in the

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sense that it is relative to other punishments, crimes or offenders, rather that the sentence and appropriate crime have some sort of direct relationship. (Von Hirsch, 1993 chp2)

The obvious question to consider when looking at how to achieve cardinal proportionality is of course, where do we place that anchor? Duff, in Punishment,

Communication and Community, suggests that in a general sense the community does have

some intuitive notions, as rational moral agents, about what a fair sentence would look like and this could be a starting point for creating the beginnings of a loose rank order of

sentence-offence matches. As with the example of offender A and B earlier it seems intuitively unfair for offender B to get a year in prison for petty theft and equally a justice system that handed out a fine for a murder would look like unjust. Examples such as these would surely be disproportionate in any system, even if they were relatively proportionate to other sentencing decisions. (Duff, 2001 chp4, 1.1) This begins to show us what sorts of sentences that would be disproportionate, what they do not do however, is give us a definite idea about what the fixed anchor point would be.