Von Hirsch has presented me with a dilemma. As he says, “Proportionality in the Philosophy of Punishment” is a “substantially revised” version of the paper originally prepared for the Jerusalem conference. Its predecessor, “Allocating Penalties”, was in part a response to my “Criminal Desert, Harm, and Fairness”, the paper I prepared for the conference. “Proportionality” is instead (if only in part) a response to what I said at the conference — the “Postscript” cited in its footnotes.

Here is the dilemma. On the one hand: I could leave “Postscript” more or less as I gave it. That would preserve the historical record, but at some cost. I would have missed a chance to advance discussion of important issues. I would also have caused an anomaly in the order of papers printed here. On the other hand: I could rewrite “Postscript”, making it a response to “Proportionality” rather than to “Allocating Penalties”.

Any system of justice purporting to be civilized must pursue two basic principles: (1) that people similarly circumstanced are to be treated equally under the law; (2) that people administering the law are not permitted to act arbitrarily or to prescribe individually the rules governing their actions and decisions. Both of these principles were persistently violated through well over half the twentieth century in the sentencing of people for crimes in the United States. The steady violations were produced by a combination of sentimental good intentions, puritanical severity and irrational misconceptions concerning the effects of punishment and the capacity of those commissioned to administer punishment. As the century wanes, the long course of error has been identified. This is a time of intensive sentencing reform. We are vexed now in a familiar way by doubts about the efficacy and the side effects of the reforms.

In thinking about the sentence-setting process, it is important to recognize the different perspectives associated with the two different levels at which sentencing questions must be addressed. The first is the macro policy level. This is the level of issues faced by a judicial council, a legislature, or a sentencing commission. Such a body must establish a range of permissible sentences from which the individual judge chooses the sentence for any particular case. The policy body must develop principles for establishing those ranges. Most of the discussion in this paper appeals to this policy level.

The second level is the micro level of the individual judge who must choose, from the range of sentences that the policy permits, the particular sentence that is most appropriate for the particular case. As part of its policy, the policy body may also provide guidance to the individual judge on how to choose a particular sentence from within the available range.

The development of criteria for determining a just sentence in criminal cases has been the subject of considerable thought and discussion in recent years. To be regarded just, a sentence must meet criteria of proportionality, humane decency and equality. It may not be excessively severe in proportion to the moral wrong committed by the defendant. It may not be so harsh and cruel as to demean him and deny his humanity. The punishment imposed may not be significantly more onerous than that inflicted on other defendants in similar circumstances.

In this brief paper, I would like to suggest an additional factor by which punishment should be judged. I will call this factor the aptness of the penalty. By this I mean the degree to which the penalty itself — note, I say the penalty, not the act of inflicting punishment — expresses moral criticism of the crime for which it is being imposed. Aptness connotes an observable connection between the crime and the offence such that one feels almost instinctively that the particular penalty imposed is the moral consequence of the particular offence committed.

Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the further question “how much?”. The bulk of this statement will be devoted to this second question, but I will first explain why there is no absolute answer to the issue of judicial discretion in sentencing.

Most legal systems grant the sentencing judge (practically) unlimited freedom to choose among a vast array of dispositions in any given case. Legal standards guiding their decision-making are typically non-directive, vague, or non-existent. The result, not unexpectedly, is a great disparity in sentencing outcomes. This state of affairs can best be explained in terms of unquestioned tradition and judicial self-image.

Thomas Aquinas, in his famous argument on human law, classified the process of sentencing as an art, as opposed to a science. Human law, he argued, or at least good human law, “has the force of law in that it flows from natural law”. And yet, Aquinas further maintained that “commands can be traced to natural law in two ways; one, drawn deductively like conclusions from premises; two, grounded on it like constructional implementations of general directives. The first process is like that of the sciences. … The second process is like that of the arts where a special shape is given to a general idea, as when an architect determines that a house should be in this or that style”. Hence while a proposition such as “you must not commit murder” can be deduced from “you must not commit harm”, no similar deduction can determine the appropriate punishment for the crime: “Natural law pronounces that crime has to be punished without deciding whether this or that should be the penalty; the punishment selected is like a determinate form given to natural law”, concludes Aquinas.

The approach of my good friend Shachar illustrates the saying that uncompromising aspiration to perfection is a hindrance to progress. To me, his approach, whereby “we will only have our personal intuitions to tell us who was judged correctly, but our personal intuitions may be wrong”, is unacceptable, both in itself, and from the point of view of the conclusions to be drawn therefrom under Shachar's central thesis.

A. Ambiguity in Shachar's Thesis

But first, the thesis is not entirely clear. On page 648, he writes as follows: “… I believe that intuitive answers to complex moral questions are not necessarily arbitrary. One choice is probably better or worse than the others, yet it often cannot be rationally and conclusively demonstrated to be so”.

We are inclined to consider “criminal events” as exceptional, events which differ to an important extent from other events which are not defined as criminal. In the conventional view, criminal conduct is considered to be the most important cause of these events. Criminals are — in this view — a special category of people, and the exceptional nature of criminal conduct, and/or the criminal, justify the special nature of the reaction against it.

People who are involved in “criminal” events, however, do not in themselves appear to form a special category. Those who are officially recorded as “criminal” constitute only a small part of those involved in events that legally permit criminalisation. Among them, young men from the most disadvantaged sections of the population are heavily overrepresented.

I found the slogan used as the title of this paper one sunny and cold Sunday morning in winter, 1985, on a vertical steel bar in the middle of the Brooklyn Bridge, above the East River, written with that ugly black ink that has replaced the bright colours of earlier years of graffiti in New York. Still, in contrast to the meaningless scribblings or markings of warrior names usually found in Manhattan these days, the message is nearly a joyful one: there is no point in expecting or demanding a “just society” from a state or other authorities — we will have to look after that ourselves and we can do it. By implication the writer also tells us what popular demands for “justice” really mean: an end to injustice. They are not “positive” demands, but in fact criticisms of some state of affairs or measures taken (or not taken) by the authorities: we know very well what is not just, even though we may not know what a “just” society should look like, and may even be sceptical whether we would like to live in one.

Heinz Steinert and Louk Hulsman represent “abolitionism” — a stream of critical thinking about criminology, crime, criminal law and punishment that has been developing in Western Europe (mainly Holland, Germany, Austria and Norway) over the past two decades. Given that the participants to this Conference are mainly Anglo-American and Israeli academics or lawyers who have been quite insulated from this intellectual movement, it seemed to me that my most useful task as commentator would be to place these ideas in their wider intellectual context. After this, I will select a few general themes from these papers and compare them to the papers by Abel and Galanter in the related session on “Alternatives to Punishment”.

My own position towards abolitionism is that of a sympathetic, but critical fellow traveller: I agree with much, want to believe more but am skeptical about some.

I must begin with several disclaimers, which express not the obligatory protestations of false modesty but the real limitations of this article. First, I am not a criminologist, penologist or philosopher of law but a lawyer and sociologist of law. Second, I inevitably reflect the unique social environment within the United States, which may be very different from that of the other countries represented at this conference. Third, my remarks are impressionistic and synthetic, not the conclusions of a careful empirical study.

My argument is simple. In the contemporary United States, stateimposed sanctions are seen as a central mechanism of social control. (Of course, they also are seen as incapacitation, retribution, and rehabilitation; but most people would view these as secondary justifications.) Indeed, I believe most Americans would view state punishment as the most important mechanism of social control. By state-imposed sanctions I mean both criminal penalties (execution, imprisonment, fine, probation, and community service) and civil damages (compensatory and punitive).

The papers presented in this last session of the Conference — by Marc Galanter and Richard Abel — tend towards a quasi-sociological perspective, emphasizing the limits of the applicability of the criminal law and its implementation, and drawing attention to alternative normative systems — whether extra-penal or extra-legal.

The papers differ, however, in at least two important respects. The first difference is in tone and orientation. While Galanter is essentially pragmatic, Abel's perspective is radical. On this point it is interesting to observe that Abel's radical criticisms are directed primarily at the inadequacies of the law in the context of the protection of the weaker members of society. Until recently, the radical thrust was generally directed at the overuse of the law against the underprivileged. Recently conducted victim surveys have pointed to the victimization of the poor by offenders rather than as offenders, and this information clearly forms part of the backdrop to Abel's analysis.

Discussions of punishment and its role in modern societies often proceed as if punishment is co-extensive with the criminal justice system. Instead, I want to begin with the observation that a large part of punishment as a social institution is outside the criminal law — indeed much of it lies outside the legal system. To understand the working of punishment in our societies and what the law can do with it and about it requires that we examine the entire span of punishment, not just that part which epitomizes it in legal theory.

What is punishment? I hesitate to get into a definitional struggle on what must be well-worn turf. It seems to me that we can identify a core idea of “bad for bad” — i.e., the imposition of a harm, injury, deprivation or other bad thing on someone on the ground of the commission of some offence. The infliction of harm on the offender may be viewed as a goal (or as proximate to a goal of justice) or it may be viewed instrumentally as a means to social betterment, through rehabilitation, incapacitation, deterrence, reassurance, and so forth. Thus, the harm may be thought to redound to the offender's ultimate benefit or that of the society.

I am honoured and pleased to comment on the paper on “Punishment Civil Style” by my good friend Marc Galanter, with whose basic thesis I am in complete agreement. I would take as my starting point and, indeed, emphasize, Galanter's definition of punishment as the “imposition of a harm, injury, deprivation or other bad thing on someone on the ground of some commission of some offence. The infliction of harm on the offender may be viewed as a goal (or a proximate to a goal of justice) or it may be viewed instrumentally as a mean to social betterment through rehabilitation, incapacitation, deterrence, reassurance, and so forth”.

Galanter well points out that, as such, punishment is not limited to the criminal justice system, but is employed also in other societal systems, including that of civil justice.

Yet, I fear that he may mislead us in focusing in his paper so heavily on punitive damages, which he maintains “are the most visible and clearly legitimated manifestation” of the principle of “civil punishment”.