Lex Talionis and Blame

Andrew Von Hirsch suggests that a main reason we punish is to show disapproval of a particular action. If this is an important part of the punishment, then it is important to blame in a proportional way across sentences. It would be wrong to blame someone who stole as much as someone else who murdered. Proportional sentencing does not prescribe a level of punishment, but it does say that greater punishment should be given for crimes of more blame.

The communication of this blame to the convicted and the public is important as well. It is not enough for the state to blame a convicted person if the offender or the public do not know that the convicted is blamed, or how much he is blamed. At the very least, the offender ought to have an idea of the blame the state is placing on him.

There is research suggesting widespread ignorance and an inaccurate sense of punishment levels for different crimes. It is then a reasonable guess that they will not understand a set of punishments non-equivalent mapping of crimes ranked according to blame levels—even if they are proportional. When the level of blame of a punishment can only be understood in the context of other punishments for other crimes, it is unlikely that an offender, or even the public, will grasp the level of blame his punishment is meant to convey.

There is a natural sort of relationship between a punishment and a level of blame. There is the equivalent relation between 1) harm caused and one’s culpability and 2) harm inflicted on the offender as punishment. Lots of pain equals lots of blame. In a scaled system of blame to pain, a little pain could equal significant blame, and this is something von Hirsch seems to favor. But it is reasonable to be concerned that the offender and others will be unaware of the blame conveyed, or what is actually only the blame meant to be conveyed. However, a punishment of ten lashes has a certain universal understanding. People know that is a really substantial penalty and represents a substantial amount of blame.