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3 - Proportionality

Recalibrating the Desert Calculus

from Part II - Paradigm and Principle

Published online by Cambridge University Press:  26 July 2025

Louise Kennefick
Affiliation:
University of Glasgow

Summary

Chapter 3 expands on the moral deficit introduced in Chapter 2, engaging the principle of proportionality to show how the dominant account of rational agency leads to the disproportionate delivery of desert in two ways: by maintaining an overly narrow basis of the desert calculus, and by failing to recognise degrees of moral blameworthiness. It draws on key findings from social psychology to understand the lag between doctrinal expectation and the reality of human behaviour, and to show how proportionality can be reinvigorated at culpability evaluation by aligning it with a clear social justice objective. Applying the Real Person Approach (RPA), the moral deficit is exposed as a failure to recognise inherent and situational vulnerabilities, and a recognitive doctrinal response is offered as a means of legitimising the Universal Partial Defence. The chapter also reconciles the RPA with retributivism, as the hegemonic approach to culpability evaluation.

Information

Type
Chapter
Information
The Boundaries of Blame
Towards a Universal Partial Defence for the Criminal Law
, pp. 79 - 106
Publisher: Cambridge University Press
Print publication year: 2025

3 Proportionality Recalibrating the Desert Calculus

Introduction

So far, we have clarified that a key part of the state’s duty to those it blames involves the advancement of social justice. Chapter 2 explored the substance of this duty: it identified the narrow understanding of, and the weight afforded to, the rational agency paradigm as a core barrier to social justice, and it provided a toolkit for its advancement at the site of culpability evaluation, in the form of the Real Person Approach (RPA). The purpose of this chapter and the next is to explain in greater detail the moral and social justice deficits to which the RPA responds, with a view to mapping out a clear justification for the Universal Partial Defence (UPD). These chapters are also central to the task of legitimising and guiding the reform proposal through showing how the RPA can be applied to culpability evaluation at a paradigmatic level.

This chapter is concerned with the moral deficit. The first part engages the principle of proportionality to show how the current approach to the rational agency paradigm leads to the disproportionate delivery of desert in two key ways: by maintaining an overly narrow basis of the desert calculus, and by failing to recognise degrees of moral blameworthiness. In so doing, it draws on key findings from social psychology to understand the lag between doctrinal expectation and the reality of human behaviour. Attending to the psychological forces underpinning the structure of doctrine at culpability evaluation is an important step in providing a richer account of rational agency as the dominant basis of criminal responsibility attribution, and recognising the ways in which it can be undermined. The middle section of the chapter shows how the principle of proportionality can be reinvigorated at the site of culpability evaluation by aligning it with a clear social justice objective. In applying the RPA, we can expose the moral deficits pertaining to disproportionate blame as a failure to recognise inherent and situational vulnerabilities that may bear on a person’s responsibility for actions. Armed with this understanding, from a recognitive justice perspective, we can set an expectation for how the law ought to respond to those who offend, through its doctrine, as a means of legitimising the case for the UPD.

In keeping with the feasibility feature of the RPA, any recommendation for reform at culpability evaluation must engage with retributivism as the overarching approach at present. As such, the latter part of the chapter argues that the elimination of retributivism is untenable and not necessarily preferable. Rather, there is scope to attune retributivism to a more morally justifiable position by loosening the hold of individualism at this site and allowing space for recognition of vulnerable agency. As such, the chapter supports a pared-back version of retributivism, one that is supplemented by a broader construct of agency guided by the RPA. Finally, the chapter makes the point that proportionality, as a conceptual tool, has the potential to be aligned with and reignited by the RPA while, conversely, granting the RPA not just feasibility but also a form of ready-made legitimacy, given the principle’s central place within the criminal law of a liberal democracy.

Proportionality and Just Deserts

The premise of this chapter is that responsibility for crime is being disproportionately applied to those who offend at the point of culpability evaluation (the moral deficit). At first glance, this charge might suggest a failure on the part of the principle of proportionality to deliver proportionate blame. However, later, we discuss how the reason for this disproportionate outcome has more to do with the hegemonic status of a narrow version of rational agency as the basis of the desert calculus, than with the principle of proportionality itself. Before setting out the moral deficit, however, it is useful to explain the significance and meaning of proportionality for present purposes, and to clarify its relationship with the idea of just deserts, in order to emphasise its centrality to criminal responsibility and its largely independent quality in terms of the overall purpose of the law.

Proportionality holds significance owing to its intrinsic relationship to the notion of fairness underpinning the criminal law, as recognised by the idea that blame and punishment ought to be delivered in proportion to criminal culpability.Footnote 1 This idea of fairness matters because it upholds the legitimacy of the criminal law by presenting it as a civilised and objective authority that strives for accurate assessments of blame. Indeed, for Billis et al., its significance cannot be underestimated:

[N]ot to assign proportionality its proper weight – symbolically and pragmatically – as both a temperate … method of controlling public power and a rational factor of social legitimacy, means not only to compromise traditional criminal law principles and human rights policies but also to jeopardise the functionality of legal systems in the long term.Footnote 2

The import of proportionality also lies in its use in defining penal theories. Von Hirsch explains that though penal rationales differ, they can be characterised as differing to the extent that they give credence to the principle of proportionality: a desert-based approach giving it most credence and something like a consequentialist account affording it less (e.g. crime control).Footnote 3 However, on closer examination, we can see that this assessment suggests a somewhat monolithic understanding of the concept that, though emphasising the importance of the principle, does not fully capture the nuance and complexity of its use as a scholarly measuring tool.Footnote 4 For instance, we might say that the two approaches take account of proportionality in different ways, rather than to different extents: what matters to consequentialists is a prospective proportionality of present means to future ends, whereas for retributivists what matters is a retrospective proportionality of present blame and punishment to past offence.Footnote 5 In this vein, Berman suggests that the version of proportionality adopted by a particular scholar tends to shift according to the objective they wish to achieve. He writes, ‘a principle of proportionality that best fits a positive retributivist justification of punishment will differ in function and content from one that fits a classical utilitarian justification (if one does)’.Footnote 6 Therefore, it is more accurate to speak of ‘principles’ of proportionality, given the rich and vast body of work seeking to define and understand its many forms, both in criminal law and justice studies, and most notably in the context of punishment and sentencing.Footnote 7

For the purposes of the RPA, the version of proportionality adopted maps an understanding of the concept in punishment literature, as a form of ‘side-constrained pluralism’Footnote 8 or ‘responsibility-constrained pluralism’.Footnote 9 Berman describes the latter as follows: ‘that punishment can be morally justified by pursuit of, or conformity with, a plurality of goods and reasons, but only if constrained by principles of distribution … that respect differences in one or another aspect of the offender’s “responsibility” for the offense’.Footnote 10 The concept of proportionality adopted in this chapter (and for the purposes of ascribing criminal responsibility), therefore, holds that in pursuing order in a way that advances social justice, the law must attend to the particularities of the accused in its assessments of culpability.

Within the confines of that assessment, key debates on the application of proportionality address a range of concerns; from differences in the target of proportionality (as between the severity of the offence and the culpability of the person who offends), the range of proportionality in terms of whether the principle also applies to leniency and not just excess, whether or not the concept ought to be understood in a positive or negative way,Footnote 11 and the perceived accuracy of the measure itself.Footnote 12 To gain a foothold on proportionality for the purposes of this chapter, the discussion relies on certain conclusions in relation to these discourses, as developed by Berman, on the basis that this understanding aligns with responsibility-constrained pluralism and targets penal excess. In particular, Berman proposes a version of proportionality ‘grounded in the principles of humanity’, in that it opposes punishments that are ‘excessively severe’ (i.e. it constrains punishment that is excessive, and is not concerned with punishment that is too lenient), in ‘absolute (though contextual)’ terms (such that it does not require comparison with other punishments imposed in other cases), and relies on a measure of excess relating to the individual’s ‘culpability in regard to wrongdoing’.Footnote 13 Therefore, for the purposes of this chapter, proportionality targets the culpability of the person who offends because it is focused on excuse as a means of advancing social justice in a doctrinal sense. It is also more concerned with avoiding penal excess and less so with the concept of applying too little responsibility, for reasons discussed in Chapter 4 in more detail relating to the harm created by even the lightest criminal justice intervention, and the fact that the site of culpability evaluation is already prone to punitiveness. Finally, the chapter takes seriously the accuracy of the measure of proportionality at culpability evaluation by emphasising its scalar quality.

On the question of accurate measurement, proportionality tends to be positioned as central to retributivism,Footnote 14 because it is seen as the gauge for determining backward-looking responsibility and punishment,Footnote 15 and particularly in the context of discourses on just deserts.Footnote 16 The end of this chapter is concerned with reconciling the RPA with retributivism, and so it is useful to clarify the relationship between proportionality and just deserts here. As mentioned previously, proportionality is often invoked to define or constrain retributivism in different ways.Footnote 17 But beyond a mere restraint on state condemnation, proportionality can also be perceived in a more positive sense, as giving normative content to the responsibility constraint.Footnote 18 Such content relays that it is wrong to condemn those who are innocent, and that those who are found guilty should not be condemned more than they deserve.Footnote 19

What people deserve from the state when they offend, then, is an important component to which proportionality relates in a retributivist context. This sentiment is echoed by Brink when he writes: ‘[Retributivism] invokes the idea that blame, sanction, and punishment are fitting responses to an agent who is culpable or responsible for wrongdoing and that culpable wrongdoing deserves or merits these responses.’Footnote 20 State punishment may be sanctioned only to the degree that it is proportional to what someone deserves. Desert in this sense speaks to two distinct factors, the harm or wrongness of the act itself and the culpability of the individual who committed it. Brink puts it thus: ‘[P]unishment should be proportional to desert, which should be understood as the product of two independent variables, wrongdoing and culpability or responsibility.’Footnote 21 As such, the principle of proportionality adds an extra layer of legitimacy to the retributive computation by claiming that the level of blame and punishment deserved must map the level of harm done, and the culpability of the accused. Excuses assume the wrongness of the act and so are largely concerned with the question of culpability. Blame and punishment must be proportional to that culpability assessment to be legitimate.Footnote 22 It is the position of this chapter that proportionality, on this understanding, is worth maintaining, but that it can be understood as accommodating more than blame, sanction, and punishment as ‘fitting responses’ to culpable wrongdoing.

For, there is an argument to say that the principle of proportionality is failing to deliver on in its core task of preventing disproportionate responses at the site of culpability evaluation. The problem does not lie with the principle itself, however. Rather, it is the doctrinal scaffolding at this site that prevents the principle from operating more justly, and it does so in two respects: first, it restricts the basis of desert and, second, it fails to facilitate degrees of desert.

The [Dis]Proportionality Problem at Culpability Evaluation: (i) A Narrow Basis of Desert

We have explored how the moral blameworthiness of the accused is a key element to which desert relates in the rendering of proportionate justice. Once the positive elements of the offence are established, excuse doctrine is centrally concerned with evaluating the culpability of the accused. The core claim of this section is that excuse doctrine is too narrow, which means that the basis of the desert calculation is at risk of assigning criminal responsibility disproportionately, because not all relevant factors are given credence in assessments of blameworthiness. The reason excuse doctrine maintains its restrictive structure is due to a bounded understanding of the rational agency paradigm, and the weight it is afforded beyond other potentially relevant factors and circumstances.Footnote 23

Excuse doctrine is restricted in the sense that attempts to introduce new defences are rare,Footnote 24 and rarer still are such attempts found to be successful.Footnote 25 Excuses are further restrictive in that they are only made available on the basis of a particular view of the person built upon a narrow, compatibilist account,Footnote 26 such that, short of complete absence of reason or an overwhelming external subjugation of will, the law does not entertain claims to extenuating circumstances prior to conviction.Footnote 27 (While a wider array of factors may be taken into account at sentencing, Chapter 5 argues the case that they should be dealt with at the pre-verdict stage owing to the moral significance of this site.) Moreover, though justifications for actions tend to be more generously applied, the jurisprudence on full excuses indicates a markedly restrictive trend in the courts.Footnote 28

The excuses that are recognised are tightly drafted and tend to be narrowly understood.Footnote 29 For instance, in England and Wales, the M’Naghten RulesFootnote 30 set a high bar in terms of showing lack of rationality.Footnote 31 In particular, the knowledge requirements of the test (pertaining to the defendant understanding the ‘nature and quality’ of the act or its ‘wrongness’) are based on an evaluation of cognition, and do not extend to volitional or emotional capacities.Footnote 32 Recently, the wrongness limb of the test has been made even stricter by the requirement that it include an unawareness of both legal and moral wrongfulness of the act on the part of the accused,Footnote 33 when previously the test required unawareness of legal wrongness alone.Footnote 34 The consequence, as Mackay notes, is that ‘any knowledge of wrong, whether legal or moral, will ensure that D is outside the M’Naghten Rules’.Footnote 35 Moreover, the ‘defect of reason’ requirement must be of an extreme nature in order to be considered by the jury, further restricting the availability of the defence.Footnote 36 Even in the case of more generous definitions, (for instance, in Ireland, which allows a volitional component to the test), the reality is that the defence is seldom invoked and rarely successful.Footnote 37 A similar complaint may be made against the defence of duress.Footnote 38 In the context of mental health conditions, in particular, however, the restrictive nature of the insanity defence, and the fact that diminished responsibility only applies in the context of homicide offences, sits uneasily alongside figures that point to the high rate of people with a mental disorder in prison.Footnote 39 This is not to say that everyone with a mental disorder ought to qualify for a defence or partial defence.Footnote 40 Rather, it is to point to the potential of such instances bearing on someone’s reasons for acting in the context of the particular crime. For if it is accepted that post-verdict recognition of factors that undermine culpability is insufficient,Footnote 41 then what is required of the law is to recognise and respond to this deficit at the site of blame, as an integral point of moral interaction between person and state.

In the context of partial excuse, in particular, Chapter 6 takes the example of diminished responsibility in England and Wales to provide greater detail on how the present definition of the defence is overly narrow owing to a reliance on a medicalised reading stemming from a restrictive understanding of the rational agency paradigm. Interestingly, in this context, an analysis of the law in practice shows the efforts of the court, at times, in seeking to circumvent such a restrictive understanding, in order to meet the justice requirements of a given case. The apparent tendency of courts to be more flexible with applying diminished responsibility, as compared with the insanity defence, may have to do with the fact that a successful partial excuse still results in a conviction for manslaughter, whereas a successful insanity defence provides an acquittal.Footnote 42 Chapter 6 argues that such moments of flexibility in interpretation are better reflected within doctrine itself, as representing a more authentic and generous account of personhood that ought to apply across all offence categories. For now, however, it is sufficient to note that on the aforementioned reading of doctrine, the retributive desert calculus is bounded by a narrow understanding of rational agency, because the present law restricts the information deemed relevant to forming the basis of the question regarding what it is that people deserve when they offend. Desert rests upon an assumption that a specific culpable act is attributable to a very particular view of the person, and one that, this chapter argues, is no longer appropriate.

It is important to acknowledge that the central conceptual concern with expanding excuse doctrine lies in a presumption that doing so would unleash unwarranted leniency for those who may be excused from crime. There exists a real and deep fear of people who have committed wrongful acts not being held accountable. This sentiment bears out in criminal law scholarship with a palpable mistrust of causal theories of excuse. For instance, in contemplating the scope of excuses, though Dressler admits to there being value in the expansion of defences, he avoids condoning the introduction of new excuses, citing Fletcher’s cul-de-sac of determinism.Footnote 43 Therefore, little progress has been made in reforming excuse doctrine due to the age-old dilemma of determinism versus free will. Given the strength of this view, and its restrictive (and, I argue, unjust) consequences, this concern is worth taking seriously and, indeed, forms the basis of the discussion in Chapter 7. The core aim of that chapter is to resolve the problem of causal explanation and responsibility for the purposes of introducing the UPD, through a revised rationale for the doctrine of partial excuse in the form of a bounded causal theory.

In the meantime, this section is concerned with providing the impetus to revisit the causal question explored in Chapter 7, and to further justify the UPD proposal, on the basis that the exclusion of wider circumstances for consideration in the context of excuse doctrine (as the grounds of the just deserts calculus) is no longer defensible because current excuse doctrine is constructed with a core dispositional bias that results in disproportionate blame. The restricted conception and hyperfocus on rational agency under the present dominant paradigm skew the lens through which culpability is assessed, leading to the exclusion of circumstances and conditions (vulnerabilities) from explanations for action, that have a bearing on questions of culpability.

Uncovering the underlying psychological explanations for this position emphasises the flawed nature of how we presently blame people, and foregrounds the need to respond in a way that recognises (in as much as we can) the reality of human behaviour, rather than the ideal, particularly when the consequences result in criminal condemnation. This section provides an overview of established findings in social psychology as a key evidence base to inform change through the application of the RPA.

How Real People Perceive Behaviour: The Fundamental Attribution Error

Chapter 2 has already argued that individuals are heavily influenced by situational factors, and the point is well established in relevant social psychology literature.Footnote 44 Here, we explore this idea in more detail, highlighting how the position of the person as subject of culpability evaluation/moral judgement bears on the meaning of doctrine, and how it is interpreted through a situational lens. Indeed, there is an extensive literature on causal attribution in the field of social psychology, concerning ‘the persistent search for the meaning of behaviour, and the effects of the active involvement of the perceiver’.Footnote 45 As Heider notes,Footnote 46 humans typically explain behaviour as either dispositional, whereby a behaviour or occurrence is perceived as being due to personal factors such as character, capacity, or emotion; or situational, where a behaviour or occurrence is perceived as having an external explanation. Though individuals, particularly those in an official role, tend to believe that they are objective and balanced observers of the behaviour of others,Footnote 47 attributional studies have established that we are predisposed to making external attributions about our own behaviour, and internal attributions about the behaviour of others. In other words, we tend to blame our own poor behaviours or outcomes on matters external to us, but the bad behaviours of others on themselves. We are less likely to recognise both internal and external aspects as explanations for behaviour. Lee Ross was the first to term this tendency the ‘fundamental attribution error’,Footnote 48 with a view to capturing the inherent shortcomings of the lay psychologist, that is, someone who ‘seeks to explain behavior and to draw inferences about actors and their environments’.Footnote 49 He defines the error as a ‘general tendency to overestimate the importance of personal or dispositional factors relative to environmental influences’.Footnote 50

The literature asserts a number of explanations for why perceivers are subject to dispositional bias when evaluating another person’s behaviour. A detailed analysis is beyond the scope of this discussion, suffice it to summarise that the tendency to focus on agents as causes stems from a number of potentially overlapping factors,Footnote 51 such as the presence of an observable actor, and the need to make sense of circumstances in order to assuage anxieties.Footnote 52 More recently, Berry and Frederickson put forward a unifying theory of the fundamental attribution error, drawing on a combination of the interaction between theory of mind and findings from cognitive science that point to a strong tendency to overestimate the existence or role in events of human (or human-like) intentional agency.Footnote 53

The fundamental attribution error warrants attention more broadly because it has relational implications that bear on factors concerning justice, such as bias and prejudice,Footnote 54 and moral judgement.Footnote 55 Its implications for law have been the subject of rigorous investigation and debate in recent times,Footnote 56 though the practical impact of such efforts has borne less fruit.Footnote 57 Understanding how such psychological barriers operate at culpability evaluation allows us to capture its significance for the purposes of justice (in terms of shortcomings and decision-making/judgement biases) and to work towards offsetting the effect, as recognised through the features of the RPA.

From a doctrinal perspective, dispositional bias is heavily imprinted on the nature and dominance of the rational agency ideal,Footnote 58 which underpins retributivism at the culpability evaluation stage of the criminal law, and amounts to what Dripps terms, the ‘fundamental retribution error’ [emphasis added].Footnote 59 Excuse doctrine, in particular, encapsulates the tension between dispositional and situational attributions. For, as Snyder and Higgins remark, excuse making is ‘the process of shifting causal attributions for negative personal outcomes from sources that are relatively more central to the person’s sense of self to sources that are relatively less central’.Footnote 60 The influence of the fundamental attribution error therefore reveals itself in doctrine and principle through the limited capacity of the criminal law to allow for excuses or explanations, beyond the ‘free choice’ of the person. In particular, Dripps distinguishes between excuses that derive from situational factors, and those that may be attributed to third-party wrongdoing (e.g. provocation), noting the tendency of legislators, courts, and juries to set an overly restrictive scope for excuses which derive from the former category, in particular.Footnote 61 Further, attempts throughout the years to introduce broader grounds for excuse, such as those relating to poverty and deprivation, have failed despite the evidence that such circumstances can act to undermine the cognitive, volitional, and emotional capacities of those who offend.Footnote 62 Social psychology and cognitive psychology reinforce our scepticism about the narrow interpretation of excuse in criminal law, and its tendency to responsibilise the most vulnerable in our society: ‘When the defendant points to situational factors other than wrongdoing by another human being, the law’s understanding turns into condemnation.’Footnote 63

In addition to the doctrine itself, it is worth noting that the fundamental attribution error is also reinforced by the real-world interactions taking place at culpability evaluation. For instance, in 1977, Ross signalled the greater significance of errors of attribution in the context of ‘role-constrained’ encounters,Footnote 64 such as that between legal decision-maker and defendant. In such instances, he highlights how formal (and even informal) roles can impede interactions, and therefore bias both the data available to the decision-maker and the judgments that supervene such information.Footnote 65 More recent studies have shown how other factors relevant to criminal blaming practices tend to exacerbate the impact of the fundamental attribution error on decision-making practices. For instance, Kubota et al.’s study on person attributions and stress found that decision-makers under acute physiological stress have less cognitive capacity to analyse the impact of situational factors on a person’s behaviour, and so are more likely to overemphasise dispositional factors when attributing responsibility. This tendency is evident in the context of everyday decision-making and is even stronger in those making judicial decisions about criminal behaviour, where the consequences are particularly significant.Footnote 66

Another line of research demonstrates how the nature of the behaviour or event in question can impact the mindset of the decision-maker. In particular, a dispositional mindset is reinforced where the decision-maker perceives that the behaviour or event in question is a threat to society. Research by Tetlock et al. supports the contention that a sense of threat to social order tends to activate a ‘prosecutorial mindset’ which is identifiable by ‘a correlated cluster of attributions, emotions, punishment goals and punitiveness’Footnote 67 and which is motivated towards reasserting civil order.Footnote 68 Therefore, those in a position of seeking to impose order are predisposed to identifying disruptive behaviour and attributing it to the personal disposition of the actor. Furthermore, the fundamental attribution error holds particular import within the context of criminal culpability evaluation because of the implications faced by the accused. In a procedural sense, Shaver highlights this aspect in terms of the ‘attribution of causality’ asked of the jury.Footnote 69 She notes:

[T]he defendant’s fate depends on the attribution that is made, with a personal attribution leading to a guilty verdict and an environmental attribution (such as justifiable self-defense) leading to acquittal. It is less apparent though equally true that … the personal characteristics of perceivers (here, the jury) can affect the resulting attribution. … [E]ven in situations which emphasize objectivity in interpersonal evaluation, perceivers bring with them attitudes and values that can affect their decisions.Footnote 70

Taking these findings together, as an institution underpinned by a restrictive rational agency paradigm, the law’s inherent bias results in a systematic distortion of blame by failing to create a means of giving due credence to situational factors with a view to at least attempting to offset the dispositional bias of criminal doctrine and criminal justice decision-makers. Based on the rigour and cogency of the research just highlighted, Ross’ observation almost half a century ago suggesting the implied effect of attribution error on social justice outcomes seems more relevant than ever:

Individuals who enjoy positions of power by accident of birth, favorable political treatment, or even their own efforts also tend to enjoy advantages in self-presentation.Footnote 71

More recently, he has been joined by others, like Dripps, who argues that an understanding of the fundamental attribution error, and its consequence for the accused, ought to inform policy changes and reform within the criminal law in order to account more accurately for the fact that those who are involved with the justice system have already been subject to dispositional bias. On a theoretical level, Dripps further notes that the fundamental attribution error complicates efforts to institutionalise retributive theory, which results in a systematic over-assessment of blameworthiness.Footnote 72 For him, this puts an impetus on the law to ‘account for the risk that decision makers will overestimate personal as opposed to situational factors’.Footnote 73

The [Dis]Proportionality Problem at Culpability Evaluation: (ii) Failure to Recognise Degrees of Desert

A related point that brings into question the desert calculus at culpability evaluation pertains to well-established findings in cognitive science relating to rationality and reason. The capacity to reason and reasons responsiveness underpin doctrines of responsibility, and there is a commonly held perception that rationality plays a dominant, if not exclusive, role in such reasoning.Footnote 74 However, findings from cognitive science suggest that reliance on rationality/logic alone does not reflect an accurate account of human reasoning. For, reasoning is highly error-prone and subject to a number of heuristics and cognitive biases.Footnote 75 In particular, reasoning and decision-making have been found to be largely automatic and inherently driven by social context,Footnote 76 rather than deliberate, and logical. As such, our behaviour comes about less by conscious decision-making and more by mental processes ‘put into motion by features of the environment … that operate outside of conscious awareness and guidance’.Footnote 77 Further, studies have shown how people are generally poor at discriminating the motivation/reason for their behaviour and tend to generate rationales post hoc.Footnote 78 Thus, how we make decisions is fluid, not fixed.

These findings raise questions about the legitimacy of relying on concepts like rationality and reasoning as the central basis for ascribing criminal responsibility. As Morse and Brink have recognised, such insights reinforce an understanding of culpability as scalar in nature, which warrants a more tailored response when attributing desert proportionately. For Morse, the present structure of excuse doctrine is unjust because it results in people being punished more than they deserve,Footnote 79 due to the fact that the narrow account is at odds with the range of cognitive and volitional capacities evident in the human psyche.Footnote 80 Similarly, Brink is of the view that retributive justice requires that blame (and punishment) ought to be rendered in proportion to culpable wrongdoing in order to avoid the normatively dubious outcome of ‘treating many cases of partial responsibility as if the individuals were fully responsible’.Footnote 81 The point is developed further in the context of excuse theory in Chapter 7. For now, it suffices to note that the failure of excuse doctrine (for the most part) to reflect partiality of desert contributes to moral injustice through the delivery of disproportionate blame.

Using the RPA to Reframe and Respond to Moral Injustice

The aforementioned problems highlight the need to address the hegemony of rational agency in order to provide a broader basis from which the principle of proportionality may operate, and to recognise the nature of rational agency (and therefore, responsibility), as scalar, and not fixed/binary. As such, the RPA seeks to reinvigorate the question of proportionality by aligning it with the positive objective of advancing social justice at the site of blame. It argues that proportionality will operate more effectively where it engages with a more authentic account of personhood as its basic paradigm. Conversely, ensuring that proportionality is inherent to the features of the RPA lends it legitimacy as a new, but grounded, way of viewing the penal subject. Further, the task of the RPA here is to reframe the moral problem as a social justice one – in other words, to alert the criminal law to its duty in relation to the person at the site of blame, and to provide guidance on how it ought to respond through the promulgation of recognitive justice.

Disproportionate Desert as Failure to Recognise Vulnerability

Applying the RPA to culpability evaluation lends a social justice frame to what is usually conceptualised as a moral problem,Footnote 82 by fore-fronting the significance of inherent and situational vulnerability to assessments of past behaviour. In so doing, the RPA aims to facilitate a more psychologically accurate and contextually aware desert calculation, thereby offsetting the moral deficit outlined earlier.

As discussed in Chapter 2, the view of personhood underpinning the RPA is reliant on the concept of vulnerable agency. Through this lens, the law’s proportionality problem can be characterised as a failure to account for autonomy-related vulnerabilities specific to the person undergoing culpability evaluation, as a result of the dominance of a particular conception of the rational agency paradigm. As Mackenzie notes, acknowledging the experience of vulnerability as particular to and inherent in the individual pushes back against a view of personhood enthralled by liberal agency.Footnote 83 When blameworthiness is determined pre-verdict, the narrow basis of desert amounts to the exclusion for consideration of circumstances and conditions that are innate to a more authentic account of personhood.Footnote 84 Moreover, the failure of doctrine to acknowledge the scalar nature of rational capacity at a greater level (beyond existing partial excuses, and at the guilt phase) is tantamount to the state’s misrecognition of the psychological reality of the subject that it is bound to protect.

The proportionality problem can also be framed as a misrecognition of situational vulnerability whereby environmental and structural factors that compound inherent vulnerability are ignored at culpability evaluation, again, due to the narrow focus of the rational agency paradigm. Rational capacity and reasoning are situated phenomena meaning that realistic understandings of autonomy ought to take account of external factors as impediments to agency.Footnote 85 The findings discussed previously, regarding the individual as moral object at the mercy of heightened dispositional biases at decision-making within responsibility ascription, also signifies the role of pathogenic vulnerability.Footnote 86 Culpability evaluation is a key point of interaction at a site of uneven power dynamic as between person and state, with the potential to impede autonomy and generate new forms of harm. This point is discussed further in Chapter 4 which shows how the attitude underpinning doctrine at this site reinforces broader punitive responses that may be framed as social injustice through misrecognition.

Ultimately, then, employing the RPA allows us to characterise the narrow construct and application of the present paradigm as excluding consideration of inherent and situational vulnerabilities that bear on people’s autonomy.

Responding with Recognitive Justice

The presence of such vulnerabilities ground the case for a recognitive justice response. As a key feature of the RPA, recognitive justice has a role to play in affirming the reality that respecting personhood demands particular institutional responses to safeguard autonomy and offset harms arising from vulnerabilities, as outlined earlier. As recognised in Chapter 2, though there is a limit to the role doctrine can play in attenuating harm, there remains an obligation upon it, as an integral form of normative scaffolding, to acknowledge the social context of crime, and the role of legal principle in influencing autonomy-related outcomes of those who offend.

Through deploying the tools of excuse theory, recognitive justice at culpability evaluation may be realised through the following measures. First, to offset inherent and situational vulnerability, it is necessary to facilitate consideration of prior factors and circumstances that may bear on culpability beyond the confinement of the rational agency paradigm. This is a controversial point, and the obstacles to deepening the basis of culpability evaluation are considered in detail across Chapters 5 and 6, which inform the development of a bounded causal theory of partial excuse in Chapter 7. Second, acknowledging a realistic account of human psychology that has established the contingent and scalar quality of rational agency and the imperfect nature of moral reasoning wholesale requires the extension of doctrine to facilitate recognition of degrees of desert through the introduction of a partial excuse that applies to all offence categories. This is a complex proposal, and the challenges facing such a development form the basis of the discussion in Chapter 5, and the defence itself is considered in Chapter 8. In the meantime, Chapter 4 elaborates on how recognitive justice generates a duty to offset pathogenic vulnerabilities of the person at the site of culpability evaluation by creating space for broader situational factors to be considered in order to promote autonomy at the point of blame.

Feasibility, and the Role of Retributivism in the RPA

The feasibility of the RPA lies in the fact that, though it is critical of the rational agency paradigm, it is not calling for its demise nor proposing a completely novel paradigm, either. Rather, the RPA, as a guiding conceptual framework, seeks to retain alignment with, and reinvigorate, core criminal law principles (proportionality and parsimony), as well as the necessary flexibility to work with both retributive and non-retributive accounts of criminal law. On this point, the RPA might be described as indifferent to the presence of retributivist goals, provided there is some level of accountability required of the person (which may or may not be classified as retributive) and only to the extent that the version of retributivism in question does not contribute to a greater punitive logic, as discussed in detail in Chapter 4. For present purposes, therefore, this section clarifies the version of retributivism to which the RPA can relate, and highlights the extent to which stronger versions of retributivism have been maligned and muted in scholarship, which is taken up in more detail in Chapter 4.

Retributivism is a broad church and best understood as an umbrella term for a cluster of theories that share certain commonalities.Footnote 87 Most agree that retributivist accounts are closely associated with the question of desert,Footnote 88 which is central to the justification for state punishment, levels of punishment, and (less so) the form that punishment ought to take. So, whether or not a theory is classified as retributivist can shift, usually according to the role of desert as central or lesser, and we might distinguish a ‘purer’ form of retributivism from accounts that include other instrumental factors in their theories of punishment, which are classified as ‘hybrid’, ‘mixed’, or ‘pluralist’ theories.Footnote 89

Within the retributivist camp, a common way of loosely classifying theories is in relation to this perceived retributivist potency, or severity.Footnote 90 What may be classified as ‘weak’ accounts see desert as a necessary but not sufficient condition for punishment, so that other factors, such as deterrence or incapacitation, must also be taken into consideration.Footnote 91 Moderate accounts are more likely to see desert as both a necessary and sufficient condition for punishment, but maintain the position that there may be good reason not to punish in certain circumstances, and so this form does not belie a duty to punish.Footnote 92 Finally, ‘strong’ retributivist accounts can be characterised as seeing desert as both a necessary and sufficient condition for punishment and, moreover, maintaining that desert belies a duty to punish on the basis that it is morally right.Footnote 93 (Though between them, there are many contested points, much of the discourse may be characterised as ‘in fighting’. As Husak observes: ‘The invective in quarrels among retributivists can be greater than that expressed in debates between retributivists and those who presuppose an entirely different normative framework.’)Footnote 94

The type of retributivism that is compatible with the RPA is the weak, positive version, whereby desert gives us reason to punish, but that reason is insufficient in itself. This version therefore permits space for instrumental considerations and holds proportionality as its core legitimating principle. Because we’re talking about retributivism in the context of responsibility, it is more closely associated with the question of desert. As Brink observes, ‘[r]etributivism claims that the reactive attitudes and practices of blame and punishment should track desert and that the basis of desert is culpable wrongdoing and implies that blame and punishment ought to be proportional to culpable wrongdoing’.Footnote 95 The reason that the weak version is more compatible with the RPA is that it is furthest away from the version of retributivism associated with suffering which, in Chapter 4, is linked to a wider punitive logic that the RPA seeks to ameliorate.

In sum, then, my claim is that there is some value in responding to wrongdoing on the basis of desert, that that response ought to be proportional to the culpability of the person who offends, and that the basis of the proportionality test ought to facilitate consideration of relevant vulnerabilities. This proposal is retributivist in the sense that it is backward looking, but it limits the retributive reach because it does not speak to the idea of suffering, which is not necessarily associated with retributivism, though the latter is often a conduit for it.Footnote 96

Diluting the Potency of Retributivism

The weak account of retributivism, which may be characterised as a form of accountability on some interpretations, is a reasonable reading of retributivism in present times, and accords with a tendency in the literature to dilute the potency of the concept, though there are those who would reject it outright. This section grapples briefly with the significance of some of the more provocative discourses in this area for the RPA. Retributivist theories experienced a revival following the perceived failure of the rehabilitative ideal in the post-war era,Footnote 97 and a fear that the concept of responsibility for crime was being eroded.Footnote 98 The consequences have been controversial and present, in Lacey and Pickard’s words, ‘a very mixed picture in terms of both effective limits on punishment and real respect for offenders as persons’.Footnote 99 Indeed, recent decades have seen renewed and increasingly creative challenges to the concept, largely in response to its perceived connection to the phenomena of mass incarceration and overcriminalisation.Footnote 100

The RPA is in broad alliance with the overall sentiment of theorists who tend to denounce retributivism as indefensible as a justice aim in the face of both moral and social injustice.Footnote 101 For instance, Kelly’s call for a ‘just social order’, which asserts that moral blameworthiness and legal liability ought to be separated, is built on the premise of ‘fundamentally, acknowledging and addressing the basic needs and potentialities of all members of society, including those who break the law’.Footnote 102 In associating retributivism with culpable wrongdoing, Kelly argues that retributive justice that relies on evaluations of character/capacity and circumstance is ‘largely irrelevant’ to legal guilt finding.Footnote 103 Moreover, she asserts that it is both ‘possible and urgent’ to remove retributivism as a foundation of justice.Footnote 104 In her discussion of excuse, Kelly demonstrates the ‘poor fit’ of retributivism based on the fact that, in reality, courts are reluctant to allow truly particularised evaluations of culpability, by design (through narrow excuse offerings), for reasons of expediency.Footnote 105 Caruso, too, puts forward powerful moral reasons for its rejection, most relevant of which focuses on the fact that given ‘the various ways moral and legal culpability can be misaligned, retributivism suffers from the fact that a person can easily be found criminally guilty and eligible for retributive punishment without being (fully) morally blameworthy for their criminal wrongdoing’.Footnote 106

While sympathetic to these arguments, I am curious about the feasibility or benefit of so overtly rejecting retributivism, given it is not always clear that scholars are fully abandoning the concept, due to the numerous competing versions in existence.Footnote 107 The presumed association between retributivism and punitiveness or suffering also tends to suggest that retributivism is incompatible with humane approaches to justice.Footnote 108 For instance, Lacey and Pickard question the apparent sense of entitlement to hostile reactions against those who offend and highlight the harmful impact of those reactions.Footnote 109 The authors envisage an alternative, clinical approach to accountability (rather than retributivism) whereby responsibility ascription is divested of aversive features, and punishment is deployed with a therapeutic emphasis in order to integrate justice and rehabilitative models. The RPA does not reject retributivism, but rather calls attention to the fact that meanings of retributivism have tended to be diluted over the years and the differences between retributivist and non-retributivist objectives are becoming less clear and arguably, therefore, less salient. Indeed, it can be difficult to fully reject something when its meaning is indeterminate to such an extent that the utility of employing the term is in doubt,Footnote 110 and difficult to do so with any great impact when it is so assumed to be imbedded in current principle.

The bulk of the discourse on retributivism takes place in the punishment and sentencing arena. What is interesting to observe for present purposes is that increasingly, often what retributivism is, is defined by what it is not. In recent times, the line between retributivism and consequentialism is blurring. This is particularly evident where theories can be interpreted as both retributivist and consequentialist/non-instrumentalist in nature.Footnote 111 Additionally, there is more overt recognition of the fact that retributivism appears to have shifted into being a subset of consequentialist justifications of punishment. For example, Berman questions the assumed taxonomy, and argues:

[I]t seems increasingly fitting to view retributivism as a subtype of consequentialist justifications for punishment – a ‘retributivist consequentialism’ that can be meaningfully contrasted with varieties of ‘non-retributivist consequentialism’ – rather than as an alternative to them.Footnote 112

In this vein of literature, there is a clear trend towards understanding retributivism as some form of limit on instrumentalist accounts, whether positive or negative. For instance, Berman speaks of ‘responsibility constrained pluralism’, while Duff calls for a ‘side-constrained consequentialism’ approach.Footnote 113 We see this former version play out in Husak’s ‘version of retributivism’ whereby ‘the criminal law performs several legitimate normative functions in addition to implementing a principle of retributive justice that assigns value to treating offenders as they deserve’.Footnote 114 This shift in the role of retributivism at the point of punishment reflects a more enduring loss of confidence in the ability of retributivism to form an adequate theory of punishment in its own right. For example, in their defence of the republican account, Braithwaite and Pettit posit retributivism as ‘inadequate’ due to its failure to provide comprehensive answers to the ‘“how”, “who”, and “why” questions of punishment’.Footnote 115 From the perspective of this book, this work on retributivism at punishment lends support for a lesser role for retributivism at the point of culpability evaluation.

The RPA is being applied to a space that may be described as retributivist in nature in that it responds retrospectively to the culpable wrongdoing of an individual based on their desert. Understanding that even at culpability evaluation, retributivism can exist in tandem with instrumentalist objectives, invites us to consider what else matters at this point – beyond the desert of the person – to further the interests of justice. This question is constrained by the fact that the function of the law here is carried out through doctrine, and so does not enjoy the same flexibility and discretion available at sentencing. Therefore, the nature and function of blame at this point cannot really be just consequentialist or focused on effects, because of their inherent unpredictability. This follows Duff’s intuition in the development of his communicative theory of punishment. For Duff, retributivists are alive to an intrinsic value in condemnation that is related to desert, but something different to consequentialism. In asking the question ‘what do we owe to those whom we hold responsible?’ Duff fore-fronts the relational and reciprocal exchange taking place when someone is answering for crime, opening the possibility for a more complex understanding of desert in this context.Footnote 116 This account of responsibility is reflected in recent scholarship considering the role of desert as something more orthotropic or composite in nature. For instance, Katz’ relational view of retributivism takes account of both the punisher and the wrongdoer, whereby the former must react to the wrongdoing but also must react ‘in virtue of the relations that exist between the parties’.Footnote 117 Further, Netanel Dagan and Julian Roberts present a ‘dynamic censure’ model, which accommodates both backward- and forward-looking consideration of the individual within the concept of desert.Footnote 118 Though applying in the punishment context, this type of thinking signals a fresh perspective on an enduring concept, particularly in terms of the recognition of the status of the wrongdoer and the moral significance of their future actions.Footnote 119

As such, we might arrive at a position where it becomes necessary to clarify what function retributivism serves at desert. The reasons why retributivism may be maligned are taken up in Chapter 4, as this very much has to do with the idea of retributivism entertained at punishment, which relates to the concept of ‘suffering’. For now, it is sufficient to state briefly the reasons why a version of retributivism is worth maintaining at culpability evaluation. First, at a fundamental level, retributivism connects condemnation with a past action and, in this sense, gives, in Duff’s terms, a ‘normative justification’ for that condemnation.Footnote 120 This backward-looking function is important because it sets the terms of the communication between the individual and the state when a wrong is committed, notwithstanding the outcome. In this sense, it communicates censure for wrongdoing,Footnote 121 and that censure has a role to play in practices of responsibility that ‘enhance us as moral agents’.Footnote 122 Of course, the content of that communication is also significant, in terms of how the state responds to the individual. In addition, some scholars argue that retributivism is a mechanism for upholding the status of the victim,Footnote 123 (though retributivism (along with other approaches) has also been criticised for not giving adequate voice to the victim either).Footnote 124 This view is justified on the basis of respect for the individual with them being ‘treated as the kind of being who can be held responsible’.Footnote 125 We might say, then, that the key function of retributivism is to facilitate a pathway to accountability. Whether or not retributivism is essential in doing this remains an open question, however. For example, Lacey and Pickard put forward a version of accountability in their clinical model that aligns with the justice model but promotes responsibility without the ‘worthiness’ of blame.Footnote 126

In supplementing retributivism with recognitive justice, it is hoped that this approach can align with Lacey and Pickard’s goal at the culpability evaluation stage, in terms of acknowledging and forefronting the fact that ‘responsibility tracks agency’.Footnote 127 The RPA imbues the site with a fuller account of agency that aligns with social justice mores at a key point of moral exchange between state and person. The UPD, which manifests recognition of vulnerable agency through expanding the basis and nature of desert, can work with retributivism. We can see support for this approach from scholars like Husak, who tentatively suggests how retributivists can address problems like overpunishment ‘by invoking considerations of desert to either narrow range of offences or to enlarge the application of defences’.Footnote 128 In the latter context, Husak is approving of the idea of a partial defence which is analogous to full excuses or justifications. In doing so, he does not reject desert altogether but presents grounds that support a claim that ‘fewer persons deserve punishment than positive law inflicts. And a good many of the persons who do deserve punishment deserve less of it’.Footnote 129 Indeed, he concludes:

Desert-based arguments can be used to bring about reductions in the severity of sentences either by narrowing the number of and breadth of offenses, or by increasing the scope and application of defenses. Although the latter path is probably explored less frequently, it may have the greater potential to reduce our notorious propensity to be overly harsh.

Therefore, in aligning proportionality and desert with the RPA, this chapter is engaging with a desert-based argument in order to achieve a reduction of over-blaming (which is characterised as social injustice) by increasing the scope and application of partial excuse through the UPD.

Conclusion

This chapter has seen the RPA engage with the principle of proportionality, as a central tenet of criminal law, with a view to identifying the factors that undermine autonomy and showing how the principle can be reinvigorated at the site of blame, when turned towards the greater objective of advancing social justice. In particular, the RPA was applied to diagnose disproportionate desert as a failure to recognise vulnerability in the way that it operates from an overly restrictive basis of desert and fails to acknowledge degrees of blameworthiness. The expansion of the basis and nature of the desert calculus was supported by established findings in mind sciences, which provide a more fulsome account of the human psyche.

Framing this moral deficit as a failure to acknowledge vulnerability then grounds the case for a recognitive justice response from the criminal law as a means of offsetting the narrow conception and binary nature of the rational agency paradigm at culpability evaluation. In the interests of feasibility, the chapter showed how it is possible to achieve recognitive justice at this site in a way that accords with the retributivist paradigm, rather than demanding its abandonment. For we can preserve a version of retributivism, in conjunction with the closely aligned principle of delivering just deserts, but supplement it with a broader desert base and a scalar quality that offsets the moral deficit. Moreover, in acknowledging the role of retributivism at culpability evaluation, the chapter has shown that a form of personal accountability is required to underpin the UPD. This requirement will be fed through to the rationale for partial excuse developed in Chapter 7, represented through the use of capacity theory as a limit on a causal approach, resulting in a ‘bounded causal theory’ of partial excuse.

On one level, the proportionality argument is enough to justify the proposal for a UPD, because the moral deficit is sufficiently problematic to warrant a response in itself. However, a core aim of this book is to bring to light an additional, and arguably more nuanced, phenomenon that impedes social justice at the site of blame, and which operates at a paradigmatic level alongside and through the proportionality problem. For, retributivism (which we have established is a requirement of a feasible UPD) is often conflated in popular and scholarly understanding with the notion of punitiveness, a concept and practice which causes unjustifiable harm, and so undermines the social justice ambitions of the RPA. As such, it is necessary to unpick the relationship between the two concepts to ensure that the UPD will operate to offset the misrecognition of the person subject to blame. To do so, Chapter 4 engages another core tenet of the criminal law, the principle of parsimony, to identify how the present dominant paradigm can lead to misrecognition, and to reinforce the need for recognitive justice to offset conceptual punitiveness at the heart of the criminal law.

Footnotes

1 A. von Hirsch, ‘Proportionality in the Philosophy of Punishment’, Crime and Justice, 16: (1992), pp. 55–98.

2 E. Billis et al., ‘The Typology of Proportionality’ in E. Billis et al. (eds.), Proportionality in Crime Control and Criminal Justice (Oxford: Hart Publishing, 2021), p. 11.

3 von Hirsch, ‘Proportionality’, p. 56. See generally, M. Manikis, ‘The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions’, Osgoode Hall Law Journal, 59(3): (2022), pp. 587–628.

4 M. Tonry, ‘Preface’ in M. Tonry (ed.), Of One-Eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Oxford: Oxford University Press, 2020), at p. vii (bemoaning ‘[t]hat so central a concept [as proportionality] remains so poorly understood’).

5 My thanks to Antony Duff for pointing this out.

6 M. N. Berman, ‘Proportionality, Constraint, and Culpability’, Criminal Law and Philosophy, 15: (2021), pp. 373–391.

7 On historical development, see M. J. Fish, ‘An Eye for an Eye: Proportionality as a Moral Principle of Punishment’, Oxford Journal of Legal Studies, 28(1): (2008), pp. 57–71; For more extensive general critique of the principle of proportionality within and beyond criminal justice, see N. Lacey, ‘The Metaphor of Proportionality’, Journal of Law and Society, 43(1): (2016), pp. 27–44. For a recent analysis of the relevance of proportionality to sentencing, in particular, see Manikis, ‘The Principle of Proportionality in Sentencing’ and more broadly, Berman, ‘Proportionality, Constraint, and Culpability’.

8 R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), pp. 11–14.

9 Berman, ‘Proportionality, Constraint, and Culpability’.

10 Footnote Ibid., pp. 374–375.

11 This is the term employed by Duff who supports a negative version of the proportionality principle whereby punishment should not be disproportionate in either direction, whether too harsh or too lenient. See Duff, Punishment, Communication, and Community.

12 For an overview, see Berman, ‘Proportionality, Constraint, and Culpability’.

13 Berman, ‘Proportionality, Constraint, and Culpability’, p. 374.

14 E.g. see R. S. Frase, ‘Theories of Proportionality and Desert’ in J. Petersilla & K. R. Reitz (eds.), The Oxford Handbook of Sentencing and Corrections (Oxford: Oxford University Press, 2012), ch. 3. On the centrality of retributivism at culpability evaluation, see discussion in Chapter 1.

15 See Manikis – discussing the Canadian case of R. v. M. (C.A.) [1996] 1 S.C.R. 500 – Manikis, ‘The Principle of Proportionality in Sentencing’, p. 606.

16 Just deserts tends to represent a modern version of retributivism. E.g. S. Easton & C. Piper, Sentencing and Punishment, 5th edn (Oxford: Oxford University Press, 2022), ch. 3; D. O. Brink, ‘Retributivism and Legal Moralism’, Ratio Juris, 25(4): (2012), pp. 435–578, at p. 435: ‘Retributivism is the thesis that the reactive attitudes and practices of blame and punishment should track desert and that the basis of desert is culpable wrongdoing.’

17 E.g. see von Hirsch, ‘Proportionality’; N. Morris, ‘Punishment, Desert and Rehabilitation’ in H. Gross & A. von Hirsch (eds.), Sentencing (Oxford: Oxford University Press, 1981), p. 257.

18 Berman, ‘Proportionality, Constraint, and Culpability’.

19 D. Wood, ‘Punishment: Consequentialism’, Philosophy Compass, 5(6): (2010), pp. 455–469; Berman, ‘Proportionality, Constraint, and Culpability’.

20 Brink, ‘Retributivism and Legal Moralism’, p. 498.

22 N. Lacey & H. Pickard, ‘The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems’, The Modern Law Review, 78(2): (2015), pp. 216–240.

23 See Chapter 2 for further discussion of the dominant approach.

24 R. A. Duff, ‘The Reciprocity of Criminal Responsibility’ in T. Crofts, L. Kennefick, & A. Loughnan (eds.), Routledge International Handbook on Criminal Responsibility (London: Routledge, 2025). See also J. Dressler, ‘Some Very Modest Reflections on Excusing Criminal Wrongdoers’, Texas Tech Law Review, 42: (2009), pp. 247–258.

25 In this vein, see A. E. Taslitz, ‘The Rule of Criminal Law: Why Courts and Legislatures Ignore Richard Delgado’s Rotten Social Background’, Alabama Civil Rights & Civil Liberties Law Review, 2: (2011), p. 79. See, further, discussion in Chapter 7.

26 See, further, discussion of compatibilism in Chapter 7.

27 E.g. The defence of duress in England and Wales is restrictive. It does not apply where the defendant honestly but unreasonably believes in the threat and has their will overcome even where this is due to a low IQ. It is not a defence to murder, and the voluntary association exclusion is a high bar and is rarely met; see R. v. Hasan [2005] UKHL 22; D.P.P. for Northern Ireland v. Lynch [1975] 1 All ER 913 (limitations on the scope of the defence are matters of public policy, in that the defence should be very difficult to plead successfully lest it become ‘a charter for terrorists, gang-leaders, and kidnappers’).

28 Exemplified by discussion in Dressler, ‘Some Very Modest Reflections’, p. 673.

29 This issue is further elaborated on in the context of excuse theory in Chapter 7.

30 The Rules permit a defence if, at the time of committing the act, the defendant was ‘labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong’. R. v. Daniel M’Naghten (1843) 10 Clark & F200, 2 ER 718.

31 Law Commission, Criminal Liability: Insanity and Automatism, A Scoping Paper (2012), Part 2. For recent discussion, see R. Mackay, ‘The Insanity Defence in English Law’ in R. Mackay & W. Brookbanks (eds.), The Insanity Defence: International and Comparative Perspectives (Oxford: Oxford University Press, 2023), ch. 2.

32 Mackay, ‘The Insanity Defence’.

33 R. v. Keal [2022] E.W.C.A. Crim. 341.

34 R. v. Windle [1952] 2 Q.B. 826; Loake v. C.P.S. [2018] Q.B. 998.

35 Mackay, ‘The Insanity Defence’, p. 26.

36 For instance, the case of R. v. Clarke [1972] 1 All ER 219 shows that the ‘defect of reason’ must equate to something more than a diagnosable mental condition, in this case, depression. Here, the Court of Appeal held that the trial judge ought not to have let the matter to the jury even though the depression may have qualified as a ‘disease of the mind’. For, the insertion of the word ‘such’ before the term ‘defect of reason’ implies that the impaired reasoning must have been sufficiently of a nature to result in an unawareness of the conduct. Mackay explains the point in more detail and captures the significance of this interpretation for the scope of the insanity defence: ‘[T]his type of distortion alone will qualify as a “defect of reason” under the M’Naghten Rules which is why only very few Ds will fall within the nature and quality limb.’ Mackay, ‘The Insanity Defence’, p. 25; see also R. Mackay, ‘“Nature”, “Quality” and Mens Rea – Some Observations on “Defect of Reason” and the First Limb of the M’Naghten Rules’, Criminal Law Review, 7: (2020), p. 588.

37 Law Commission, Insanity and Automatism, A Scoping Paper, para. 1.48, where the Commission remarked on the ‘surprisingly low’ number of successful not guilty by reason of insanity (NGRI) verdicts. Mackay’s ongoing research in the area shows totals of thirty and twenty-six NGRI verdicts in 2017 and 2018, respectively. Mackay, ‘The Insanity Defence’, p. 39. Though this figure has increased marginally, Mackay predicts that ‘a plateau has been reached and that any future increase in numbers, if any, will be modest’.

38 E.g. J. Dressler, ‘Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits’, Southern California Law Review, 62(5): (1989), pp. 1331–1386.

39 For instance, a recent study shows that nine out of ten prisoners in England have at least one mental health condition or substance misuse problem: Dr G. Durcan, Prison Mental Health Services in England, 2023: Prison & Young Offender Institution Mental Health Needs Analysis (Centre for Mental Health, 2023).

40 On which see discussion on the universal legal excuse complaint in Chapter 7.

41 As argued for in Chapter 5.

42 See, further, discussion in Chapter 5.

43 Where Dressler says, ‘These defenses in particular bring us too close to the causation theory of excuses, a theory that can too easily bring us to “the cul-de-sac of. … determinism.”’ Dressler, ‘Some Very Modest Reflections’, p. 253.

44 E.g. Z. Berry & J. Frederickson, ‘Explanations and Implications of the Fundamental Attribution Error: A Review and Proposal’, Journal of Integrated Social Sciences, 5(1): (2015), pp. 44–57; T. Gilovich et al., Social Psychology, 3rd edn (New York: W. W. Norton & Company, 2013).

45 K. G. Shaver, An Introduction to Attribution Processes (London: Routledge, 2016), p. 3. On the origins of the attribution process, see F. Heider, The Psychology of Interpersonal Relations (New York: Wiley, 1958). The theory was later extended by E. E. Jones & K. E. Davis, ‘From Acts to Dispositions: The Attribution Process in Person Perception’ in L. Berkowitz (ed.), Advances in Experimental Social Psychology, Vol. 2 (New York: Academic Press, 1965), pp. 219–266; and again in H. H. Kelley, Attribution in Social Interaction (Morristown, NJ: General Learning Press, 1971).

46 Heider, The Psychology of Interpersonal Relations.

47 E. Pronin, ‘How We See Ourselves and How We See Others’, Science, 320(5880): (2008), pp. 1177–1180; Berry & Frederickson, ‘Explanations and Implications’.

48 L. Ross, ‘The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process’, Advances in Experimental Social Psychology, 10: (1977), pp. 173–220. Though Ross alludes to a similar idea from G. Ichheiser, ‘Misunderstandings in Human Relations: A Study in False Social Perception’, American Journal of Sociology, 55(Suppl.): (1949), pp. 1–70. For an overview, see L. Ross, ‘From the Fundamental Attribution Error to the Truly Fundamental Attribution Error and Beyond: My Research Journey’, Perspectives on Psychological Science, 13(6): (2018), pp. 750–769.

49 Ross, ‘The Intuitive Psychologist’, p. 174. See also L. Ross et al., ‘Social Roles, Social Control, and Biases in Social Perception Processes’, Journal of Personality and Social Psychology, 35(7): (1977), pp. 485–494.

50 Ross, ‘The Intuitive Psychologist’, p. 184.

51 Gilovich et al., Social Psychology.

52 For an overview of relevant literature, see Berry & Frederickson, ‘Explanations and Implications’.

53 Berry & Frederickson, ‘Explanations and Implications’. See also P. A. White & A. Milne, ‘Phenomenal Causality: Impressions of Pulling in the Visual Perception of Objects in Motion’, American Journal of Psychology, 110(4): (1997), pp. 573–602.

54 E.g. A. Benforado, ‘Frames of Injustice: The Bias We Overlook’, Indiana Law Journal, 85(4): (2010), pp. 1333–1378, and in the context of racial bias, see J. Hanson & K. Hanson, ‘The Blame Frame: Justifying (Racial) Injustice in America’, Harvard Civil Rights-Civil Liberties Law Review, 41: (2006), pp. 413–480.

55 E.g. P. G. Zimbardo, ‘A Situationist Perspective on the Psychology of Evil: Understanding How Good People Are Transformed into Perpetrators’ in A. Miller (ed.), The Social Psychology of Good and Evil: Understanding Our Capacity for Kindness and Cruelty (New York: Guildford, 2004), pp. 21, 28.

56 E.g. The Cultural Cognition Project at Yale Law School, and the Project on Law and Mind Sciences at Harvard Law School. See, further, Benforado, ‘Frames of Injustice’ for an overview.

57 Kaye suggests that situationism has been less impactful in the context of criminal responsibility ascription because it is bogged down by an individualistic frame. See A. Kaye, ‘Does Situationist Psychology Have Radical Implications for Criminal Responsibility?’, Alabama Law Review, 59(3): (2008), pp. 611–678.

58 In this vein, see the example of M. Moore, Placing Blame: A Theory of the Criminal Law (Oxford: Oxford University Press, 1997).

59 D. A. Dripps, ‘Fundamental Retribution Error: Criminal Justice and the Social Psychology of Blame’, Vanderbilt Law Review, 56(5): (2003), pp. 1383–1438 at p. 1389.

60 C. R. Snyder & R. I. Higgins, ‘Excuses: Their Effective Role in the Negotiation of Reality’, Psychological Bulletin, 104: (1988), pp. 23–35 at p. 23 cited in S. Maruna & R. E. Mann, ‘A Fundamental Attribution Error? Rethinking Cognitive Distortions’, Legal and Criminological Psychology, 11(2): (2006), pp. 155–177 at p. 156.

61 Dripps, ‘Fundamental Retribution Error’, p. 1389.

62 For instance, see S. Mullainathan & E. Shafir, Scarcity: Why Having Too Little Means So Much (London: Allen Lane, 2013).

63 Dripps, ‘Fundamental Retribution Error’, p. 1412.

64 Ross, ‘The Intuitive Psychologist’, p. 194.

66 J. T. Kubota et al., ‘Stressing the Person: Legal and Everyday Person Attributions Under Stress’, Biological Psychology, 103: (2014), pp. 117–124; T. D. Eells & C. R. Showalter, ‘Work-Related Stress in American Trial Judges’, Journal of the American Academy of Psychiatry and the Law Online, 22(1): (1994), pp. 71–83; M. K. Miller & B. H. Bornstein, ‘Juror Stress: Causes and Interventions’, Thurgood Marshall Law Review, 30: (2004), pp. 237–269.

67 P. E. Tetlock et al., ‘People as Intuitive Prosecutors: The Impact of Social-Control Goals on Attributions of Responsibility’, Journal of Experimental Social Psychology, 43(2): (2007), pp. 195–209 at p. 195.

68 P. E. Tetlock, ‘Social Functionalist Frameworks for Judgment and Choice: Intuitive Politicians, Theologians, and Prosecutors’, Psychological Review, 109(3): (2002), pp. 451–471. See also L. J. Skitka & E. Mullen, ‘Understanding Judgments of Fairness in a Real-World Political Context: A Test of the Value Protection Model of Justice Reasoning’, Personality and Social Psychology Bulletin, 28(10): (2002), pp. 1419–1429.

69 Shaver, An Introduction to Attribution Processes.

70 Footnote Ibid., pp. 3–4.

71 Ross, ‘The Intuitive Psychologist’, p. 195.

72 Dripps, ‘Fundamental Retribution Error’, p. 1389.

73 Footnote Ibid., p. 1392.

74 L. Kurek, ‘Law, Folk Psychology and Cognitive Science’ in B. Brożek, J. Hage, & N. Vincent (eds.), Law and Mind: A Survey of Law and the Cognitive Sciences (Cambridge: Cambridge University Press, 2021), esp. section 4.4.

75 In a legal context, e.g. see S. Charman et al., ‘Cognitive Bias in Legal Decision Making’ in N. Brewer & A. B. Douglass, Psychological Science and the Law (New York: The Guildford Press, 2019).

76 J. A. Bargh et al., ‘Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action’, Journal of Personality and Social Psychology, 71(2): (1996), pp. 230–244.

77 J. A. Bargh & T. L. Chartrand, ‘The Unbearable Automaticity of Being’, American Psychologist, 54(7): (1999), pp. 462–479 at p. 462.

78 J. Haidt, ‘The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment’, Psychological Review, 108(4): (2001), pp. 814–834.

79 S. Morse, ‘Diminished Rationality, Diminished Responsibility’, Ohio State Journal of Criminal Law, 1(1): (2003), pp. 289–308 at p. 290.

80 For discussion, see Morse, ‘Diminished Rationality’, p. 296 ff.

81 D. O. Brink, ‘Partial Responsibility and Excuse’ in H. M. Hurd (ed.), Moral Puzzles and Legal Perplexities: Essays on the influence of Larry Alexander (Cambridge: Cambridge University Press, 2018), p. 39.

82 For example, Morse, ‘Diminished Rationality’; Brink, ‘Partial Responsibility’.

83 Mackenzie, ‘The Importance of Relational Autonomy’.

84 It is acknowledged in Chapter 5 how assessments of culpability also take place post-verdict; however, these are distinguished from pre-verdict assessments (what this book terms ‘culpability evaluation’) for reasons set out in that chapter.

85 In this vein, see J. C. Sola, ‘Crime and Punishment of the Poor from Recognition Theory Perspective’ in G. Schweiger (ed.), Poverty, Inequality and the Critical Theory of Recognition (Cham: Springer, 2020).

86 See, further, discussion on vulnerabilities in Chapter 2.

87 D. Husak, ‘Retributivism in Extremis’, Law and Philosophy, 32: (2013), pp. 3–31; D. Husak, ‘What Do Criminals Deserve?’ in K. K. Ferzan & S. J. Morse (eds.), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford: Oxford University Press, 2016); I. Wiegman, ‘Doubts About Retribution: Is Punishment Non-Instrumentally Good or Right?’ in M. C. Altman (ed.), The Palgrave Handbook on the Philosophy of Punishment (London: Palgrave Macmillan, 2023).

88 E.g. M. N. Berman, ‘Modest Retributivism’ in K. K. Ferzan & S. J. Morse (eds.), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford: Oxford University Press, 2016), p. 35.

89 Husak, ‘Retributivism in Extremis’. For ‘hybrid’ cartography, see R. S. Frase, Just Sentencing: Principles and Procedures for a Workable System (Oxford: Oxford University Press, 2012), ch. 2.

90 E.g. L. Alexander & K. K. Ferzan, Crime and Culpability: A Theory of Criminal Law, S. Morse contrib. (New York: Cambridge University Press, 2009). For a useful summary, see G. D. Caruso, Rejecting Retributivism (Cambridge: Cambridge University Press, 2021), pp. 9–11; D. Husak, ‘The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law’, New Journal of Criminal Law, 23: (2020), pp. 27–59.

91 A. Walen, ‘Retributive Justice’ in E. Zalta & U. Nodelman (eds.), The Stanford Encyclopedia of Philosophy (Winter 2023 Edition), available at: <https://plato.stanford.edu/archives/win2023/entries/justice-retributive/>; Alexander & Ferzan, Crime and Culpability, p. 7. Note that weak accounts include both positive (whereby desert gives us reason to punish, but that reason is insufficient, and other reasons, like deterrence and incapacitation, are also required), and negative understandings (whereby no punishment is permitted in the absence of desert).

92 E.g. Berman, ‘Modest Retributivism’.

93 E.g. Moore, Placing Blame, p. 91.

94 Husak, ‘Retributivism in Extremis’, p. 4.

95 Brink, ‘Retributivism and Legal Moralism’, p. 497.

96 This point is elaborated on in Chapter 4.

97 For an overview, see N. Lacey & H. Pickard, ‘From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame Into the Legal Realm’, Oxford Journal of Legal Studies, 33(1): (2012), pp. 1–29; M. Tonry (ed.), Retributivism Has a Past: Has It a Future? (Oxford: Oxford University Press, 2011).

98 H. L. A. Hart in J. Gardner (ed.), Punishment and Responsibility, 2nd edn (Oxford: Oxford University Press, 2008 [1968]).

99 Lacey & Pickard, ‘From the Consulting Room to the Court Room?’, p. 8.

100 In this vein, see D. Husak, Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2007).

101 Caruso, Rejecting Retributivism; E. Kelly, The Limits of Blame: Rethinking Punishment and Responsibility (Cambridge, MA: Harvard University Press, 2018).

102 E. I. Kelly, ‘Is Blame Warranted in Applying Justice?’, Critical Review of International Social and Political Philosophy, 26(1): (2023), pp. 71–87 at p. 80.

103 Kelly, The Limits of Blame, p. 25. See also E. Kelly ‘The Retributive Sentiments’ in F. Focquaert, E. Shaw, & B. N. Waller (eds.), The Routledge Handbook on the Philosophy and Science of Punishment (New York: Routledge Press, 2021), ch. 9.

104 Kelly, The Limits of Blame, p. 21. Kelly’s ‘harm reduction’ account entails ‘a rights-protecting, public-safety rationale that permits us to shift burdens of rights-protection onto people who criminally threaten or violate other people’s rights’, see Kelly, ‘Is Blame Warranted’, p. 77.

105 See discussion in this vein in Kelly, The Limits of Blame, p. 38.

106 Caruso, Rejecting Retributivism, p. 136.

107 For instance, Caruso targets moderate and strong accounts of retributivism, and does not challenge weaker accounts, on the basis that most scholars of retributivism support strong accounts and that weaker accounts are not sufficient to guide the criminal law. Caruso, Rejecting Retributivism, p. 11.

108 E.g. L. D. Katz, ‘The Dogma of Opposing Welfare and Retribution’, Legal Theory, 29(1): (2023), pp. 2–28. Elsewhere, this assumption is contested by those who support more moderate understandings. E.g. retributivists like Antony Duff have been described as a humane retributivist; see N. Lacey & H. Pickard, ‘A Dual-Process Approach to Criminal Law: Victims and the Clinical Model of Responsibility Without Blame’, Journal of Political Philosophy, 27(2): (2018), pp. 226–251; M. R. Reiff & R. Cruft, ‘Antony Duff and the Philosophy of Punishment’ in R. Cruft (ed.), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford: Oxford University Press, 2011).

109 Lacey & Pickard, ‘From the Consulting Room to the Court Room?’.

110 Reiff & Cruft, ‘Antony Duff and the Philosophy of Punishment’; R. A. Duff & D. Garland (eds.), A Reader on Punishment (Oxford: Oxford University Press, 1994).

111 E.g. Husak reinterprets Tadros consequentialist account as retributivist in Husak, ‘Retributivism in Extremis’.

112 M. N. Berman, ‘Two Kinds of Retributivism’ in R. A. Duff & S. Green (eds.), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011), p. 433; M. T. Cahill, ‘Retributive Justice in the Real World’, Washington University Law Review, 85: (2007), pp. 815–870.

113 Duff, Punishment, Communication, and Community, p. 11 ff.

114 D. Husak, ‘Retributivism and Over-Punishment’, Law and Philosophy, 41(2–3): (2022), pp. 169–191 at pp. 174–175; Husak, ‘The Price of Criminal Law Skepticism’.

115 J. Braithwaite & P. Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Oxford University Press, 1992), p. 181.

116 R. A. Duff, ‘Responsibility and Reciprocity’, Ethical Theory and Moral Practice, 21(4): (2018), pp. 775–787. Most recently, Duff, ‘The Reciprocity of Criminal Responsibility’.

117 L. D. Katz, ‘Relational Concepts of Retribution’ in M. C. Altman (ed.), The Palgrave Handbook on the Philosophy of Punishment (London: Palgrave MacMillan, 2023), p. 109.

118 N. Dagan & J. V. Roberts, ‘Retributivism, Penal Censure, and Life Imprisonment Without Parole’, Criminal Justice Ethics, 39(1): (2019), pp. 1–18.

119 Though note that this approach is not without criticism; J. Ryberg, ‘Retributivism and the Dynamic Desert Model: Three Challenges to Dagan and Roberts’, Criminal Justice Ethics, 40(1): (2021), pp. 56–67.

120 R. A. Duff, ‘Retrieving Retributivism’ in M. D. White (ed.), Retributivism: Essays on Theory and Policy (New York: Oxford University Press, 2011), p. 3. Though note that Berman contests the assumption that desert ought to supply the normative justification for punishment for an account to be retributive; see Berman, ‘Modest Retributivism’, p. 47 at fn. 34.

121 Duff, Punishment, Communication, and Community.

122 K. L. Sifferd, ‘Why Not “Weak” Retributivism?’, Journal of Legal Philosophy, 46(2): (2021), pp. 138–143 at p. 141.

123 J. Hampton, ‘Correcting Harms Versus Righting Wrongs: The Goal of Retribution’, UCLA Law Review, 39(6): (1992), pp. 1659–1702.

124 E.g. L. Katz, ‘How Victims Matter: Rethinking the Significance of the Victim in Criminal Theory’, University of Toronto Law Journal, 73(3): (2023), pp. 263–292.

125 E.g. H. Morris, ‘Persons and Punishment’, Monist, 52(4): (1968), pp. 475–501.

126 Lacey & Pickard, ‘From the Consulting Room to the Court Room?’.

127 H. Pickard, ‘Responsibility in Healthcare: What’s the Point?’, Journal of Medical Ethics, 45(10): (2019), pp. 650–651.

128 Husak, ‘Retributivism and Over-Punishment’, p. 180.

129 Footnote Ibid., p. 171.

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  • Proportionality
  • Louise Kennefick, University of Glasgow
  • Book: The Boundaries of Blame
  • Online publication: 26 July 2025
  • Chapter DOI: https://doi.org/10.1017/9781009386142.006
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  • Proportionality
  • Louise Kennefick, University of Glasgow
  • Book: The Boundaries of Blame
  • Online publication: 26 July 2025
  • Chapter DOI: https://doi.org/10.1017/9781009386142.006
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  • Proportionality
  • Louise Kennefick, University of Glasgow
  • Book: The Boundaries of Blame
  • Online publication: 26 July 2025
  • Chapter DOI: https://doi.org/10.1017/9781009386142.006
Available formats
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