Punishing Children Proportionately
We tend to want our children’s punishments to fit their ‘wrongs’, and they seem to want that too. Consider, for example, the following complaints:
- No TV!?! But I only pushed my brother! And he pushed me first!
- No TV!?! But when my brother did that he only had to sit on the naughty step for a few minutes!
These are both complaints about disproportionate punishments. However, I will suggest that neither complaint points to the kind of proportionality we should actually care about when it comes to punishing children. It will be useful to start by distinguishing between different ‘types’ of proportionality that we find in the literature on punishment, and in the wider literature on self-defence, war, and permissible harm. After doing so, we will see that we should not simply import our thinking on punishing children from the philosophy of criminal punishment, since we’re dealing with a very different moral kettle of fish here. Most importantly, I will argue, we do not seem to have any intrinsic reason to ensure that children’s punishments do ‘fit’ their wrongs.
Types of Proportionality
Proportionality is a relation between two things. With this in mind, we should distinguish between what I call ‘absolute’ and ‘comparative’ proportionality. This distinction concerns what things proportionality is a relation between. ‘Absolute proportionality’ concerns the absolute level of punishment, and compares it to something else (typically, the severity of the crime). The first complaint above is a complaint about absolute disproportionality – the complaint is that the punishment is disproportionate to the crime.
‘Comparative proportionality’, on the other hand, compares different punishments and whether they are proportional to each other. The second complaint above is about comparative proportionality – the complaint is that the punishment is disproportionate compared with the punishment that someone else had. Comparative proportionality demands that like offences be treated alike, and that different offences be treated in proportion to the differences in their severity – murder should be punished more than littering, for example. But this isn’t enough, it must be punished much more (this is sometimes referred to as ‘spacing’).
Within absolute proportionality – which focuses on the absolute amount of punishment – we can distinguish between two different kinds of proportionality: ‘proportionality as a goal’ and ‘proportionality as a limit’. Proportionality as a goal says that there is a level of punishment that is appropriate to the crime, which punishments should neither exceed nor fall short of. Those who believe that wrongdoers deserve punishment will usually support this form of proportionality – it would be bad if you got more punishment or less punishment than you deserved. Note that if we get proportionality as a goal right, comparative proportionality will take care of itself – if everyone is getting exactly the right amount of punishment, those who have committed like crimes will get the same punishment, and those who have committed more serious crimes will also get the appropriate amount of punishment.
Proportionality as a limit is familiar from the ethics of war and self-defence. This kind of proportionality acts as a limit on the amount of harm we should inflict, rather than as a goal. In other words, it condemns more-than-proportionate harms, but has nothing to say about harms below the proportionality threshold. A separate principle, necessity, says we should keep them to the minimum possible. Notice that, because it doesn’t care about what happens below the proportionality limit, proportionality as a limit will not automatically take care of comparative proportionality. If Kit commits the same wrong as Kim, both a 5 year sentence for Kim and a 2 year sentence for Kit could be proportionate on this view. (We may have other objections to this distribution of punishment, but they won’t be based on proportionality as a limit.)
Finally, we should distinguish between ‘narrow’ and ‘wide’ proportionality. This distinction also comes from the literature on self-defence and war but will prove relevant. Narrow proportionality concerns what harm to you is proportionate given your responsibility for what you are doing or have done. Wide proportionality concerns what harm is proportionate to innocent bystanders. Imagine Alec is attacking Antony. We can save Antony by breaking Alec’s leg, but this will also harm Doug, an innocent bystander. We need to decide whether it’s narrowly proportionate to break Alec’s leg (given his responsibility for the threat), and whether it’s widely proportionate to harm Doug. Wide proportionality isn’t about what you’ve done, it’s about whether the harm done to you, an innocent person (Doug), can be justified by the good we’ll do (in this case, saving Antony). Wide proportionality is not often discussed in relation to punishment, but it will prove relevant, I promise!
Notice that proportionality as a goal – where there’s some appropriate level of harm or punishment – only really works as a form of narrow proportionality. There’s no ‘ideal’ amount of harm to the innocent. Proportionality as a limit, however, can work as both narrow and wide proportionality.
Punishing Children
That was a lot of distinctions! But by being more precise about types of proportionality, we can be clearer about what proportionality demands when it comes to punishing children.
What forms of proportionality matter in this context, and precisely how those work, will turn on what justifies the punishment of children. For example, we saw above that the concept of proportionality as a goal, the idea that there is some level of hardship that your crime requires, is closely connected to retributivist ideas. More generally, we have seen that the idea of narrow proportionality connects proportionality to your responsibility for a crime.
Once we start thinking about punishing children (at least young children), however, these ideas of proportionality seem inappropriate. We don’t tend to think of young children as responsible agents. Personally, I have a hard time believing anyone deserves punishment, but I definitely don’t think children do. So we should let go of proportionality as a goal. I also don’t think children can be responsible for their wrongdoing, so I think we must let go of the idea of narrow proportionality more generally.
So why do we punish children? My colleague Victor Tadros has a post on this site in which he imagines two potential justifications for punishing children – it’ll be good for them in the long run; and it’ll be good for others (wider society). Let’s imagine Victor is right (though he isn’t usually), and these are the main two ways of justifying punishing children. What kinds of proportionality should we be looking at in each case?
First, let’s take punishing children to benefit wider society, by resulting in less wrongdoing. This is, in one sense, like harming Doug to save Antony – an innocent is harmed as part of benefitting others. So, we should care that these punishments are ‘widely proportionate’.
For the classical consequentialist, harming some to benefit others is fairly easy to justify – provided you prevent more harm than you cause, you’re permitted (indeed, required) to do so. However, for non-consequentialists, harming innocents in order to benefit others is very hard to justify – especially when we intend that harm. (I’m using harm in a very wide sense here, and do not mean physical harm, I just mean the ‘harm’ of punishment). What this means in terms of proportionality is that we should demand that the harm or wrongdoing prevented vastly outweighs the harm we do. Moreover, this will be a form of proportionality as a limit, so we shouldn’t aim for some level of punishment, we should merely seek to use proportionality to establish a maximum limit, and below that limit we should punish as little as is necessary to achieve the relevant benefits.
Now let’s take punishing someone for their own sake. The idea of harming someone for their own good is not an issue to which we usually apply the concept of proportionality. However, there is an obvious limit that we could call a ‘proportionality’ limit – the later benefits to the person must outweigh the harms (at least, if this is the only relevant benefit).
Concluding Thoughts and Further Questions
Having now looked at the kinds of justifications for the punishment of children we might offer, and at the kinds of proportionality calculations these push us toward, I think we can make three interesting observations:
1. Neither of the proportionality calculations relevant to punishing children is one in which the proportionality of the punishment is attached to the severity of the ‘crime’. One seeks to ensure that the harms to the punished are proportionate to the wider benefits for society. The other seeks to ensure that the harms to the punished are proportionate to the benefits to themselves. This is in stark contrast to the way we usually talk about proportionality and punishments, where the whole point is to make sure the punishment ‘fits’ the crime. Here, the punishment must ‘fit’ the benefit (to society, or the individual). Furthermore, our justifications for, and proportionality calculations for, punishing children who have done nothing wrong seem to be identical to those for punishing children who have done wrong. I think this is plausible for younger children, who are all innocent in the relevant sense.
2. The justifications offered, so far, do not seem to give us any reason to care about comparative proportionality – whether one punishment ‘matches’ others. And yet children themselves care deeply about this, in my experience. We would also generally think it inappropriate to punish one child with no TV for a week, and another with a quick telling off, for the same wrong. So why should we care about comparative proportionality? I think our reasons for doing so will be, at best, instrumental.
3. In thinking about proportionate punishments for children, we seem to need to make comparisons between the welfare losses for children and the benefits to adults (either themselves as adults, or others). This raises a couple of knotty philosophical problems. For example: do children and adults have the same form of welfare? And if not, how can we compare welfare losses for children with gains for adults?
Patrick Tomlin is a reader in philosophy at the University of Warwick. He works on a variety of topics in moral, legal, and political philosophy, including criminal law and punishment, the ethics of war and self-defence, moral uncertainty, and aggregation. He is writing a book on proportionality, to be published by Oxford University Press.