Proportionality Essay

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The principle of proportionality is based on the fundamental foundation of balance and fairness in the legislation, interpretation, and application of law. As it relates to criminal law, the principle of proportionality holds that a sanction or punishment imposed on one found guilty of committing an offense must be proportionate to the seriousness of the offense. Stated otherwise, the punishment must fit the crime. The principle of proportionality has particular applicability to the administration of criminal justice considering that the terms justice and proportionality both infer fairness, a goal that is not always realized. Disparities within the U.S. criminal justice system exist when two offenders who commit the same offense receive different sentences, thus raising many ethical concerns about proportionality in justice.

Historical Origins of Proportionality

Dating back to the philosophical writings of Aristotle, the principle of proportionality has been applied in common law, civil law, criminal law, military law, and a host of other venues. The historical and philosophical evolution of proportionality has over time been refined from Aristotle’s advocacy of justice toward one of achieving the right balance, proportion, or ratio between two parties. The Code of Hammurabi, influenced by uncodified laws and practices, gave prominence to the retributive principle of lex talionis (an eye for an eye), which, too, was based on the principle of proportionality.

Conceptually, and later in practice, the principle of proportionality was applied in the use of self-defense. It was argued that there are conditions that must exist for the use of force to be just, and that the use of force, when necessary, must not be excessive; rather, it must be proportionate to the use of force to which it is responding. In 1215, the principle of proportionality was incorporated into England’s Magna Carta,  which 200 years later, served as the philosophical template for the U.S. Constitution, in which the principle of proportionality underscored the rights of citizens to be protected from cruel and unusual punishment as stated within the Eighth Amendment.

Proportionality and Case Law

A landmark case that addressed the principle of proportionality as it related to the Eighth Amendment’s protection against cruel and unusual punishment was Solem v. Helm (1983). The case involved a defendant who was sentenced to life in prison for issuing a bad check in the amount of $100, a crime that carried a maximum sentence of five years in prison.  Notwithstanding that the defendant had six prior convictions the court overruled the sentence citing the principle of proportionality. It held that when the framers of the  Constitution addressed  the  matter of cruel and unusual punishment in the Eighth Amendment, the  principle  of  proportionality was implicit.  The court  further  held that  the analysis of proportionality should be guided by objective criteria, namely (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or to less serious penalties; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Other notable cases that address the principle of proportionality have included Tison v. Arizona (1987), Pulley v. Harris (1984), Enmund v. Florida (1982), and Coker v. Georgia (1977).

Proportionality and Punishment

Proportionality in law ostensibly suggests that the consequence or sanction for violating society’s laws should be proportionate to the seriousness of the offense. More specifically, the principle suggests that the severity of sanctions imposed on offenders is of equal severity. The criminal law, often referred to as the penal code, infers that those who violate the law will be punished. When examining the criminal law, the law not only proscribes and prohibits illegal conduct, but also prescribes or assigns punishment. The principle of punishment embodies not just its purpose, but also its proportionality in terms of the nature and amount of the punishment in relationship to the person and seriousness of the violation. Criminal punishment encompasses four components: (1) that it is prescribed by law, (2) that it is intentionally administered, (3) that it is administered by the state, and (4) that it involves some form of pain or unpleasant consequence.

“Pain and unpleasant consequences” is inherently subjective as the law does not define the kind and amount of pain. More so, pain or an unpleasant consequence  is a relative construct given that it is realized differently by individuals. This becomes even more evident when discerning whether a sentence is intended to punish, treat, or rehabilitate an offender.

Herbert Packer, renowned for his treatise The Limits of Criminal Sanction, makes a clear distinction between the intent and application of the law as it relates to punishment and proportionality. He writes that “it is all very well to insist on adherence to doctrine in the legislative proscription of criminal conduct; but doctrine in the books is not doctrine applied,” calling into question, “who will apply it, and by what standard?” While the ideological intent of proportionality is to achieve balance and fairness, the role of judges, prosecutors, defense attorneys, victims, and society at large can adversely influence the administration of justice, and consequently can lead to disproportionate sentencing. While the principle of proportionality within a criminal justice context relates to sanctions  and punishment, it is important to recognize that many other factors can influence the ultimate finding of guilt, and consequently an offender’s sentence.

Decisions on the part of prosecutors to even take a case to trial are predicated on a number of factors such as the probative force of the evidence, how it will sustain cross-examination, and ultimately, whether the case can succeed in meeting the standard of proof of guilt beyond a reasonable doubt. As Packer points out, “[T]his prediction, itself an assessment of probability, will be differently made by different  prosecutors, depending  upon  factors ranging from sanguinity of temperament and degree of conscientiousness to the importance of the case and pressure from the public.” It is these same considerations that influence sentencing and thus the imposition of punishment, which in effect are contrary to the principle of proportionality.

Proportionality, Fairness, and Ethics

While the principle of proportionality is to provide for balance and fairness when administering sanctions  or punishment, the notion  of justice (fairness) is inherently subjective, which raises an array of ethical considerations regarding  what, if any, other factors should be considered when determining the sentence of one convicted of committing a criminal  offense. While equality is defined as the state or quality of being equal, equality  as related  to proportionality may not always be perceived as fairness depending on the perspective or experience of the offender, the victim, the criminal justice system, and society at large. While some victims may subscribe to retribution and punishment, others may advocate restorative justice and leniency—an approach in which a simple apology and some expression of remorse may suffice.

It can further be argued that mitigating and aggravating  circumstances  involving  a  crime should also be taken into consideration. By doing so, the importance of exercising common sense and good discretion is considered, thus advancing the goal of justice. Conversely, deviating from standard and proportionate sanctions irrespective of circumstances and the position and attitude of the victim can equally undermine the principle of proportionality and the notion of fairness. This is exemplified with legislative attempts to provide for determinate and indeterminate sentencing. While determinate sentencing provides for fixed sentences of imprisonment, which the presiding judge must impose irrespective of facts and circumstances,  indeterminate  sentencing  affords a presiding  judge the option  to exercise some degree of discretion within a prescribed range of minimum and maximum prison sentences. While indeterminate sentencing underscores the value of judicial discretion  that takes into consideration the totality of circumstances involving the commission of the crime, doing so is contrary to the principle  of proportionality and  consequently, can raise a range of ethical concerns related to variables related to gender, age, race, religion, ethnicity,  culture,  affluence, education, geography, associations, and access.


  1. Engle, E. “The History of the General Principle of Proportionality: An Overview.” Dartmouth Law Journal, v.10/1 (2012).
  2. Gardner, T. J. and T. M. Anderson. Criminal Law. 11th ed. Belmont, CA: Wadsworth, 2011.
  3. Packer, Herbert L. The Limits of the Criminal Sanction. Palo Alto, CA: Stanford University Press, 1968.
  4. Samaha, J. Criminal Law. 11th ed. Belmont, CA: Wadsworth, 2013.
  5. Schmalleger, Frank. Criminal Justice Today. 12th ed. Upper Saddle River, NJ: Pearson, 2013.

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