• IN THIS SECTION

June 27, 2008

Exclusive: The Injustice of Proportionality

Ben Shapiro

Proportionality. The word has entered the buzzword lexicon alongside "multicultural" and "tolerant." No action is considered moral unless it is "proportional" to the action that provoked it. Israel's retaliation against Arab terrorism must be "proportional" - victory by Israel would violate the pseudo-morality of even-handedness. Ads against Barack Obama must be "proportional" - which is to say, they must not include the images or words of Jeremiah Wright, Bill Ayers, or Michelle Obama.

Now, the Supreme Court has decided, punishment for child rapists must be "proportional." In particular, the Supreme Court - that bastion of conservatism, according to the Left - ruled this week in Kennedy v. Louisiana that child rapists could not be sentenced to the death penalty. "[T]he death penalty is not a proportional punishment for the rape of a child," wrote Justice Anthony Kennedy. Child molestation and other similar crimes, said Kennedy, "may be as devastating in their harm, as here, but 'in terms of moral depravity and of the injury to the person and to the public,' they cannot be compared to murder in their 'severity and irrevocability.'"

This is nonsense of the highest order. Murder may be the most final of all crimes, but it is hardly the most severe or irrevocable. Victims of rape must live with the memory of that rape for the rest of their lives; children victimized by rape are often damaged to their dying day.

Kennedy himself acknowledges that the crime at issue in this case - a man's rape of his 8-year-old stepdaughter, mangling her genitals - was "one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death."

But in Anthony Kennedy's mind, the only crime meriting death is murder. That is because Anthony Kennedy and his ilk believe themselves to be the highest arbiters of morality. "Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule," wrote Kennedy. It is interesting to note that evolving standards of decency have now justified, according to the Supreme Court, approval for homosexuality, the outlaw of the death penalty for certain classes of murderers, and the right to abortion. Morals evolve not by gradual changes implemented by the people, but through the tyrannical fiat of unelected judges.

Let us leave aside Kennedy's astounding arrogance for a moment and focus on the general point of his argument: proportionality is the hallmark of justice. "Rape's permanent and devastating impact on a child," penned Kennedy, "suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim's death, but it does not follow that death is a proportionate penalty for child rape."

Here's the question: so what? Why should the punishment for rape be proportional to the crime? Such logic is the height of foolishness. Kennedy himself acknowledges three justifications for punishment: rehabilitation, deterrence, and retribution. Proportionality cuts in favor of the first justification - if a crime is proportional to its punishment, there is a better chance of deterrence (after all, criminals will then recognize the justice of their crime). But proportionality cuts against both deterrence and retribution. Deterrence requires that the punishment be far harsher than the crime it punishes: deterrence is definitionally a way of instilling fear. The greater the punishment, the greater the fear of punishment. Proportionality also cuts against retribution: when we inflict retribution on a criminal, we want the full mete of our rage to be poured out upon the criminal. The perpetrators of 9/11 did not merely deserve the death penalty - they deserved far worse.

Proportionality, then, cannot be the sole measure of justice. Proportionality assumes a moral equivalence between victims and criminals. It suggests that society act in a wholly restrained fashion when dealing with those who violate its most basic tenets. Such restraint breeds mayhem. It does not provide justice to victims. And when it comes to certain crimes - murder, the rape of children, terrorism - rehabilitation is not even a possibility. Proportionality is not justice in such cases - it is the purest form of injustice.

Family Security Matters Contributing Editor Ben Shapiro is a graduate of UCLA and Harvard Law School. He is also the author of the recently published "Project President: Bad Hair and Botox on the Road to the White House." Feedback: editorialdirector@familysecuritymatters.org.