Punishment, Proportionality, and Aggregation

Abstract

Criminal theorists struggle to account for the “totality principle”—the idea that no matter how many small crimes you commit, your punishment should not exceed that for a more serious offense. Andrew Ashworth, for instance, argues that “overall proportionality” should be preserved but that this is a “pragmatic” solution. This paper argues that a retributivist can accept overall proportionality without abandoning her retributivism. I offer two lines of defense. The first is to show that the unit that we are aggregating may be more complex than first appears. The second relies on insights from the headaches versus lives literature, and how we should rescue one person dying before preventing one million people from headaches. The harms that we impose on others, and the harms that defendants suffer because of punishment, do not exist on one single scale. Hence, the true problem, I maintain, is not how culpability functions, but how our particular mode of punishment does. When we only have one primary mechanism to punish (particularly once we start aggregating)—put people in prison—then aggregating offenses appears as though it must quickly lead to numerous acts of littering being punished more than arson. With a more nuanced punitive response, we can punish minor offenses every time without surpassing the kinds of punishment we impose on more significant offenses.