Proportionality and Crime Suppression by Christopher G. Moore

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Punishment is the term often used by lawyers, judges, prosecutors and the police to describe a sentence ordered by the State on someone found guilty of committing a crime. The idea of proportionality is that the amount of punishment inflicted should be measured against the damage or injury caused by the wrongdoer. The gravity of the punishment should fit the gravity of the crime. We don’t sanction the death penalty for shoplifters even such a penalty might have the support of retailers, shopping mall owners, Walmart and the rest. Even though it might indeed be an effective deterrent to shoplifting, no Western country would enact such a law.

We shouldn’t think that modern sensibilities and normative values have always defined what punishment is proportional to a crime. Our ancestors had much more capacity for the State spilling the blood of its citizens. For long periods of history, a high level of State violence was normal.

In 18th century England there were 220 ‘crimes’ for which the convicted felon was hanged. Robbery, burglary as well as murder invited the hangman’s rope. Britain no longer has a death penalty. From the gradual dwindling of capital crimes from 220 to zero is a political and social development that indicates the majority of the population accepts the idea that capital punishment is disproportionate to any crime. Ninety-five countries have abolished capital punishment.

In places like China, North Korean, Yemen, Iran and the United States capital punishment remains a penalty imposed by the State against its citizens convicted of certain crimes.

The BBC carried a story from Saudi Arabia of the beheading of a ‘witch’.  Fortunetellers and faith healers once risked the death penalty in the West. In Europe and elsewhere, heretics and blasphemers were burnt at the stake, nailed to crosses, torn apart on wheels, drown and no one—at least no one who had any real voice—thought these methods were cruel or unusual. Capital punishment often came after the person was tortured. We shudder when thinking about such public demonstration of cruelty. But we’d be wrong to think that human nature has largely overcome its capacity to inflict horrific violence if the stakes are deemed high enough.

What you need to have done to be burnt at the stake is one issue, the other is burning people at the stake for any crime. What we find is that how a State carries out capital punishment also has changed over time. The electric chair and hanging have given way to lethal injection giving a quasi-medical procedure appearance to the sentence. Our modern sensibilities no longer accept state sanctioned death by beheading, hanging, shooting and stoning. In 2010 there were ten women and four men who remained under sentence of death by stoning in Nigeria, Pakistan and Iran. And along with the more graphic, cruel means of death, the idea of using torture on citizens has moved from commonly accepted to the category of a taboo. That is why in the Bush Administration convoluted arguments were made that ‘water-boarding’ was an enhanced interrogation technique rather than torture. Much the same could have been said about the medieval rack.

Notions of universal fairness and equality also define proportionality. A punishment that is disproportionate to the crime raises issues of legitimacy of the State. In other words, the State in maintaining law and order is considered to be under constraint in how it inflicts punishment on its citizens.  People in the West would be shocked if a faith healer as a convicted witch were beheaded in a public square in London or New York because the sentiment about what conduct is criminalized changed long ago. Similarly the State is required to control the rage and anger a vast majority of people may have toward an ethnic group or a class of people.

In 2003 the Thai government policy to invoke a war against drugs led to the extrajudicial killing of at least 2,500 ‘suspected’ drug dealers. The campaign had overwhelming public support. Even though there was evidence a large number of these people were not drug dealers, the campaign was deemed a success. Given the nature of the crime and the extrajudicial punishment inflicted the concept of proportionality was violated.

The idea of severity in terms of matching punishment to a crime shifts from one culture to another. Iran hangs children. The nature of what is a crime is fluid as well. And of course, there are the ‘victimless’ crimes such as gambling, prostitution and drug use where the State seeks to regulate and control a range of behavior they believe are adverse to the public interest, immoral, or violate a social norm.

So far I’ve looked at individuals who have committed acts that have harmed other individuals. Part of the function of a State is to stop revenge and feuds arising to settle the score. The Goldilocks Principle of not too hot or not too cold is a measured why to satisfy the victim and his/her family and to deter others from committing the same crime. But proportionality also applies, as a principle, to actions by the State against foreigners in the case of war and against its own citizens in the case of suppression of certain kinds of conduct.

In the case of war, the armed combatants are under a duty to tailor their military actions to cause minimal damage to civilian populations. There is a vast literature detailing what amounts to the transgression of proportionality rule in the time of war. The main message is that States waging war can’t ignore the damage caused to civilian populations in their quest for military victory. The current UN war crime trial in Phnom Penh where three members of the Khmer Rouge leadership are in the dock for crimes against humanity, a crime that enshrines the notion of disproportional violence against a civilian population.

Historically the institutions of State have reacted with disproportionate violence against its own citizens who have challenged its legitimacy, authority, sanctity, or rulers. Threats, real or perceived, by the State as being against its own interests can easily descend into repression. Imprisoning people for political or religious opinions contrary to the myths, legends, or official positions has a long history. Often the punishment in these cases is swift, severe and serves as a warning to others to fall into line with the official position.

When people fail or refuse to do so, we see the State intervene to preserve its authority, to suppress those challenging authority. Recent examples include police actions against OWS demonstrators in the United States, the use of the military to repress demonstrators in what is called the Arab Spring in the Middle East, and the use of harsh penalties in Thailand to restrict political expression.

The reaction to the security services in these countries has highlighted, that when the elites of a State feel an existential threat, the first casualty is proportionality in striking back. The modern State has been credited as civilizing the general population, reducing dramatically citizen-on-citizen acts of violence. The UN has sought to play the role as the civilizing influence on States themselves when they use violence against their own citizen.

The reality is the UN can use war crime trials such as the one going on in Cambodia is a warning about the limits on State violence. But does it actually deter the action of the State? From the action of many State players in modern times, the leaders have concluded that a lot of violence can be employed against citizens before they are hauled off to a UN war crime tribunal. These players don’t think of themselves as ‘criminals’ and that is part of the problem. Institutions that believe in the legitimacy of their action under law are carrying out the excess of violence.

We live in a time when officials who are responsible for violence don’t believe that proportionality doesn’t apply to them or their actions. The next great awakening in criminal justice will be that State actors can’t be trusted to use measured responses when they feel threatened. Who will civilize the State? And who will punish the State? We are still in the 18th century when it comes to addressing those questions. It may take another 200 years before the answers appear. The way forward will be to bring the proportionality principle as the first line will be to define more clearly how to monitor what justifies a State from using its armories to inflict violence against its own people.

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