A. An Introduction to Punitiveness in Sweden
Of course, violence cannot be eradicated with one colossal campaign—or, for that matter, with harsher punishments. But with patient and persistent work, we can ensure that violence does not become a part of our everyday lives. This means spreading knowledge and raising our awareness of the forces that breed violence and crime. It is a matter of individual responsibility and societal responses. The government will present a comprehensive policy against violence. Sweden will once again be a pioneer in preventing and combatting crime. The position of victims of crime will be strengthened. Criminal law and police activities will be reviewed. Humanity in the prison system will be restored. The fight against economic crime will be intensified.Footnote 1
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We will hunt these gangs down, and we will defeat them. We will bring them before the courts. If they are Swedish citizens, they will be locked up for a very long time. If they are foreign citizens, they will also be deported…. We will introduce sentences with extended parole ineligibility to ensure that criminals who pose a serious danger to society are never released. And we will expel aliens who associate with criminal gangs—even if they have not yet been convicted of any crime…. For me and the Government, there is no more important task than keeping the Swedish people safe. We will do all that is necessary to restore safety and security in Sweden.Footnote 2
In June of 2023, the Swedish government initiated an inquiry to overhaul the Swedish penal system. The government characterized it as a complete reform, intended to “meet a new reality,” with the suggested measures being of crucial importance for a fair criminal justice system, to protect Swedish society from serious crimes, and to restore a sense of justice for victims.Footnote 3 To achieve this, the committee appointed would oversee the penalty scales and, regardless of their assessment propose changes to achieve longer sentences.Footnote 4 The committee presented their report, “A Penal Reform” in June of 2025.Footnote 5
This reform, along with other punitive measures previously enacted or currently considered, could increase the prison population in Sweden to 35,000 people in 2033, according to the Swedish Prison and Probation Service— per capita, the highest prison population in the EUFootnote 6 and among the highest in the world.Footnote 7 This is a radical change. The Swedish prison population remained around 5,000 people during the 2010s Footnote 8 and was once, in the middle of the 1970s, envisioned to eventually consist of less than 1,000 people.Footnote 9 The punitive measures enacted during the last years, though, have come to mean that the discrict courts now impose more and longer prison-sentences. The total number of prison sentenced imposed has increased by 27 % between 2014 and 2023, while the total number of prison months sentenced per year has doubled.Footnote 10 The development has been particularly drastic since 2017, with the total amount of prison years sentenced per year increasing from around 8,300 to 16,600.Footnote 11 This development poses serious challenges for the Swedish Prison and Probation Service, faced with overcrowding and a general shortage of space and staffFootnote 12 while trying to facilitate the prisoners’ adjustment to community, prevent re-offending and counteract the negative consequences of imprisonment, in accordance with the goals stated in Chapter 1 Section 5 of the Act on Imprisonment (2010:610).Footnote 13
Whether or not the prognosis of 35,000 incarcerated people will be fully realized, such a result has nonetheless been described by the Swedish Minster of Justice as “the intended effect” of the current crime policy.Footnote 14 The Minister of Justice also stated that more people being sentenced to prison for a longer time is “important, desirable, and necessary.”Footnote 15 Punitive measures are thus purportedly needed. “Reality is truly exceptional,” argued the Minister of Justice when presenting new punitive reforms that would further imprison more people for longer, for crimes related to shootings and bombings.Footnote 16
Constituting the background to these claims are references to the prevalence of serious and organized crime, criminal networks, and “gangs” [gäng]. This type of crime has been characterized as one of the greatest threats to Swedish security ever,Footnote 17 the most serious societal problemFootnote 18 a systemic threat,Footnote 19 a reign of terrorFootnote 20 and a poison.Footnote 21 The cause, the Prime Minister claimed in an address to the nation, is an irresponsible immigration policy and failed integration, which is why the government needs to enact measures both within crime policy and migration policy, namely by limiting immigration to Sweden and enacting tougher criminal-law legislation.Footnote 22 The Sweden Demcocrats [Sverigedemokraterna], the second-biggest parliamentary party in Sweden and collaborating party to the government-coalition, explicitly describes their policy as “[i]mprison and deport” [Fängsla och utvisa], writing that criminals are acting for reasons “foreign to us Swedes,” linking so-called gangs to “Islamism” and describing serious crime as in large part a direct result of an “extreme migration policy,” thus characterizing “a freeze on immigration and an effective repatriation-policy” as “important measures to eventually restore security and order in the country” and to make “Sweden feel like home again” for its citizens.Footnote 23 Similarly, the Prime Minister has stated that crime in Sweden has become “globalized” and that it is “very much a matter of immigration,” noting that Sweden has had a “very high rate of immigration for a very long time,” that it has since been tightened considerably, and that it must continue to be limited because Sweden will not be able to cope “if new people are constantly coming in and committing new crimes.”Footnote 24 This approach is not only targeting non-Swedish citizens but also some citizens, as a committee has been appointed to consider the possibility of revoking citizenship for dual citizens as a response towards crimes that pose a “systemic threat.”Footnote 25 According to the Police Authority in 2024, though, an overwhelming majority of people identified as actively involved in so-called criminal networks—88 percent—were Swedish citizens, out of which only eight percent were dual citizens.Footnote 26
Organized crime is thus targeted to be crushed with what is being described as the combined force of society Footnote 27 and the greatest-ever crime policy offensive consisting centrally of punitive reforms to the penal system.Footnote 28
Criminal networks has come to be the focus of Swedish crime policy. And because the concept of “organized crime” encapsulates and contextualizes a wide, ever-expanding range of crimes, the perceived damages and harms considered to result from organized crime have also broadened. Legislators have thus called for corresponding expansions of criminal law, justifying such punitive reforms as proportional. This Article makes visible what this claim on criminal law and crime policy actually entails and calls for these claims of proportionality to be denaturalized and dismantled.
B. Denaturalizing Punitive Proportionality
The government has framed the aim of the punitive overhaul as an endeavor to ensure that the penalty scales better reflect the seriousness of crimes.Footnote 29 The prevalence of this framing in crime policy is of special importance because the reforms envisioned, as observed by a report by the Swedish Prison and Probation Service, cannot generally be assumed to have a deterrent effect on crime.Footnote 30 While increased incapacitation could have some impact, the potential effectiveness and results thereof, especially in relation to the costs, are similarly disputed in the report.Footnote 31 Other research further highlights that it is not to be taken for granted that these changes are in the interest of victimsFootnote 32 or necessarily supported by the general public.Footnote 33 Instead, the argument of seriousness is made in reference to the principle of proportionality. The principle states that more serious crimes are to be punished more severely than less-serious ones, with the difference in severity corresponding to the difference in seriousness. A change in the public’s view of the crime’s seriousness would therefore call for a change in the punishment’s severity.
The government stated in the instructions for the inquiry on the penal system that the principle of proportionality and its role in assessing the seriousness of a crime is sound, and that it should continue to be fundamental for the criminal justice system. The only things that have changed, the government proposes, is this perception of the comparative seriousness of crimes, as well as the view of the suitable level of repression, the weighing of the interests in the penal system, and the view of the function of punishment. More punitive perceptions would thus mean that a considerable increase to the level of repression would be in line with the principle of proportionality. In fact, the government has stated that changes to the penal system are actually enacted to ensure that the principle of proportionality is upheld, for the sake of justice in the criminal justice system.Footnote 34
Proportionality is thus said to require punitive reforms. This is in stark contrast to previous characterizations of Sweden as a country relatively unaffected by punitive trends, as part of a Nordic or Scandinavian “exceptionalism.”Footnote 35 Seemingly noting this change, the government has described their proposed overhaul as part of a larger paradigm shift within Swedish policy. Footnote 36 Yet this overhaul follows many years of punitive measures, enacted by governments on both sides of the political spectrum. The rate at which punitive legislation was introduced increased almost threefold in the 2010s compared to decades prior and the amount of new punitive legislation has been especially significant in the late 2010s and early 2020s. Footnote 37 At least 150 legislative punitive proposals have been enacted since 2010—of which around 70 directly related to questions of proportionality, for example by changing the penalty scales or the assessment of seriousness for different types of crimes. Many proposals also concern the same crimes. The punishment for extortion and illegal possession of firearms according to the Offensive Weapons Act (1996:67) have both been changed five times since 2010. Multiple punitive reforms have also been enacted within this timeframe for violent offenses (murder, assault, making an unlawful threat, unlawful coercion); sexual offenses (sexual assault, purchase of sexual services); for some economic crimes (theft, receiving, breach of trust); and for crimes against the public (violence or threat against a public official, obstructing the course of justice). Footnote 38 In this way, punitive reforms have consistently been legitimized as proportional once enacted but deemed unproportional and subject to continuous reforms shortly thereafter.
This increased rate of punitive legislation cannot be said to correspond to an equivalent increase in crime. The general increase in crime that started during the latter half of the 19th century appears to have flattened over time.Footnote 39 The total amount of reported crime increased by five percent between 2014 and 2023, significantly due to an increase of different types of fraud.Footnote 40 Violent crime has not generally increased per capita, or become more severe, since the 1990s, except for gun violence and deadly gun violence in the context of so-called criminal environments.Footnote 41 The rise in this type of violence means that the number of deadly cases of violence is approximately the same per capita today as it was during the late 1980s and early 1990s.Footnote 42 Yet the crime policy of these periods—as contrasted in this Article’s two opening quotes—reflect two diverging notions of the appropriate scope, character, and punitiveness of criminal law, as well as different crime-policy interests. The political interest in so-called organized crime did not become so central for crime policy until the late 1990s and early 2000s, where it eventually came to also encompass economic crime under the umbrella term of organized crime or serious organized crime, which currently dominates the political and public debate.Footnote 43
The 1980s and 2020s will also be characterized by proposed overhauls of the penal system. Unlike the current inquiry, tasked with achieving a higher level of repression, the inquiry launched to reform the Swedish penal system in the late 1980s was to achieve a diminished use of prison sentences. While considered necessary to some extent in the late 1980s, punishment was generally thought to counteract the measures within the welfare system intended to support the weakest in society.Footnote 44 This overhaul, enacted in 1989, is still fundamental to the current system, not least because of how it emphasized the principle of proportionality as a founding principle for the distribution and justification of punishment. By basing the design of the penalty scales and the sentencing practice of the courts on the proportional penalty value for different crimes, the system was supposed to achieve a fairer criminal justice system and a slightly lower level of repression than before.Footnote 45 Now, the same principle is considered to call for a general increase to the severity of punishments.
This means that punitiveness is neither naturally nor necessarily proportional. The notion of proportionality is made and remade, and references to the principle of proportionality cannot themselves explain why punitive measures are enacted. Instead, these references must be analyzed in their legal and discursive context to make visible how the concept of proportionality has been transformed. Appeals to proportionality can thus be approached by exploring how they make proportionality and the seriousness of a crime through the way in which the relevant “realities” of crime policy are constructed.Footnote 46 In this sense, reality is not exceptional, but made exceptional, and an exceptional reality can make exceptional measures proportional. This can be seen in how the deadly violence per capita is about the same today as it was in the late 1980s, during which time a competely different level of repression was considered proportional.Footnote 47 So while the rise of, for instance, firearm-based violence—which has increased since the mid-2000sFootnote 48 —and the increased number of reported crimes against the Offensive Weapons Act (1996:67) —from about 6,000 cases in 2015 to about 9,500 in 2023Footnote 49 —during the last decade calls for action, “reality” itself calls for no particular measures. Reality, rather, is made exceptional by the way it is understood and delimited, and punitive measures are made rational through this understanding and representation of a crime policy problem. The punishment for illegal possession of firearms according to the Offensive Weapons Act has thus been made proportional five times over, in 2012,Footnote 50 2014,Footnote 51 2018,Footnote 52 2020,Footnote 53 and most recently in January of 2024.Footnote 54 These punitive reforms, introducing new degrees of seriousness and circumstances to take into account when assessing the proportional punishment, as well as changing the minimum and maximum sentences, have consistently been legitimized by reference to a generally tougher stance towards this type of crime. Footnote 55 In the end, these incremental changes have meant that the maximum sentence for the normal degree of illegal possession has increased from one year to five years. The penalty scales for serious illegal possession have similarly changed from spanning six months to four years to instead span four years to seven years, and the penalty scales for especially serious illegal possession has changed from spanning three years to six years to instead span six years to ten years.Footnote 56
These multiple increases in punishment severity, each one initially presented as neither too lenient nor too severe to be deemed proportional, reveals how the proportional relationship between crime and punishment is under constant political revaluation and reconstruction, becoming unproportional and then proportional once more. This is not due to the demands of proportionality, but rather by how the understanding of the problem molds the possible crime policy solutions. Yet this understanding of the problem and the solution can be legitimized as rational and natural by references to proportionality. Footnote 57 The principle of proportionality is thus not distorted by political influence, but rather inherently political.Footnote 58
These particular punitive politics of proportionality can thus be situated within the paradox of Nordic exceptionalism, what Barker has characterized as “a Janus-faced penal regime.”Footnote 59 The same conception that can allow for the social solidarity of the welfare state, the notion of “the people” in its democratic form, can also be exploited when conceptualized in its ethno-cultural form, casting foreigners as outsiders and crime committed by outsiders as evidence of this otherness. This kind of welfare nationalism has been central to the increased influence of far-right parties in Europe, linking foreigners to crime as part of an anti-immigration campaign.Footnote 60 Here Sweden is no exception.
C. An Approach Towards the Principle of Proportionality
This overview of contemporary Swedish crime policy reveals how the principle of proportionality can not only legitimize an increased general level of repression, but also obscure why these legislative changes are enacted. This is why the principle should not be disregarded, but dismantled. In order to understand why punitive reforms are implemented, the Article will go on to analyze how they are legitimized. By building upon the work on proportionality by LaceyFootnote 61 and employing discourse analysis and a WPR-inspired approach,Footnote 62 the Article will go on to propose a way of reverse-engineering the principle of proportionality in Swedish legislative reforms, to explore how the meaning of proportionality is transformed and the consequences thereof.
The backdrop on Swedish criminal law and crime policy has worked to denaturalize proportionality. Working from this, the following section goes on to provide an overview of how the principle of proportionality functions within Swedish criminal law, the theoretical framework which the principle draws upon, and the way it is used in contemporary crime policy. This analysis will make visible how the principle is built upon ideas of a rationally constrained criminal law, while remaining inherently indeterminate, allowing for widely different levels of repression. This indeterminacy can be exploited to legitimize punitive reforms. But these references to proportionality can in turn be exploited themselves. Discursively reverse-engineering them shows how the seriousness of different crimes is remade and how a particular construction of proportionality legitimizes a certain repressive and exclusionary (crime) policy rationale. This can help explain the relationship between criminal law and an increasingly punitive crime policy, showing the way proportionality justifies a rationality where other policy measures beyond the scope of criminal law are made irrational and unjust.
D. The Principle of Proportionality in Theory
Chapter 29 Section 1 of the Swedish Criminal Code (1962:700) states that penalties are to be determined within the framework of the applicable scale of penalties according to the penalty value of the offense or of the combined offenses, taking into consideration the interest of uniform application of the law.Footnote 63 The penalty value is assessed by taking into consideration the harm, violation, or danger involved in the act, what the accused realized or ought to have realized in this respect, and their intentions or motives. Since 2010, the courts have also been required to give particular consideration to whether the act involved a serious attack on someone’s life, health, or personal security.
By centering the seriousness of a crime through the determination of the penalty scales and penalty values, the penal system rests upon the principle of proportionality. By comparing the seriousness of different crimes, equally serious crimes can be punished with equal severity, and more serious crimes can be punished more severely.Footnote 64 These sorts of considerations of seriousness have long figured in criminal law and sentencing practiceFootnote 65 but since 1989, they have not only acted as a method for deciding sentences in Sweden, but also as a fundamental principle and justification for the design of the penalty scales and the determination of sentences.Footnote 66 The committee preparing the proposals for the reform stated:
In our view, no one should be sentenced to prison because of his alleged need for treatment. Furthermore should society’s alleged need for incapacitation not be allowed to influence the application of the prison sentence. Nor should the alleged deterrent effects of the various criminal law interventions—whether in a general or special sense—be given any weight in sentencing in individual cases. Instead, arguments that can broadly be said to be based on what is fair should be decisive.Footnote 67
Through this stated ambition, the principle was also intended to limit the punitive power of the state by delimiting the circumstances that could be taken into consideration when deciding on the sentences, requiring that the relevant circumstances must be related to the assessment of the seriousness of a crime, to what can be considered fair. Footnote 68 This must be understood as a reaction towards the rehabilitative ideal, which found itself under increasing criticism during the latter half of the 20th century. The use of predictions regarding dangerousness, treatment needs, and other preventive considerations as decisive factors in the choice of sentence was considered to allow too much discretion and lead to unfair and indeterminate sentences. Footnote 69 The principle of proportionality, in comparison, rests upon retributive ideas of desert and censure.Footnote 70 This means that punishment is meant to act as a form of moral communication, expressing a normative message regarding the conduct of an actor considered capable of moral deliberation. The punishment is a response toward the wrongfulness of the particular, blameworthy action.Footnote 71 The severity of the punishment thus imply a different relative degree of censure. It is in this way that the punishment is supposed to be proportional to the crime. More severe punishments should be imposed for more blameworthy, serious crimes, and only for more blameworthy, serious crimes Footnote 72 Through proportionality, this becomes a question of justice; too severe or too lenient sentences are unjust because they claim to condemn an actor for their conduct and then do not do so in accordance with their blameworthiness. This theoretically constrains what can be considered when imposing a sentence.Footnote 73
Still, simply centering proportionality in the penal system does not determine the seriousness of different crimes. The principle of proportionality only states that equally serious crimes should be met with equally severe punishments, and that the difference in severity between punishments should correspond to the difference in seriousness between different crimes.Footnote 74 The principle of proportionality acts as a framework for a certain type of reasoning but does not designate the material content or considerations for it.Footnote 75 This was acknowledged by the committee behind the 1989 reform:
Since the principle of proportionality has no substantive content, one might think that it is rather uninteresting. In our view, however, this is not the case. We consider it very important to state that assessments of penalty value [straffvärdebedömningar] should be made, not on the basis of different theories of the effects of punishment or the threat of punishment, but on the basis of an assessment of the relative reprehensibility of the offense.Footnote 76
This means that the principle must be situated in two dimensions: the relative (ordinal) and the absolute (cardinal) in order to assess the relative reprehensibility of an offense.
Proportionality in the relative sense is a matter of the relationship between crimes of different seriousness. Footnote 77 The framework for determining the proportional punishment must thus include some points of reference for determining differences in seriousness—for instance, the damage of the crime on the one hand and the culpability of the offender on the other—as is reflected in the Swedish Criminal Code.Footnote 78 To assess the damage, the reprehensibility of the crime is related to the legal good the relevant criminalization is intended to protect. The damage, danger, or risk is weighed against the importance of the relevant legal good, the type of offense and harm, and how close the action was to entail an actual violation of the legal interest. The degree of seriousness is also influenced by the degree of culpability of the perpetrator, as intentional crimes are considered more serious than negligent ones.Footnote 79 But these assessments of seriousness do not definitively answer the question of proportionality because they rely on other assessments of harm and culpability—for instance, how serious a damage, danger, or risk can be considered to be and how to understand or approximate the seriousness of different types of harms in relation to each other. The assessments also require some idea of how to assess what an offender could and should have done and what it means to be able to conform to the law in the first place. Footnote 80 This means that the assessment of relative proportionality is molded through different framings and understandings of the crime and the harm thereof. This challenges the notion that proportionality can constrain the punitive power of the state.
This is further exacerbated by the fact that relative proportionality says very little about the general level of repression or about where this kind of reasoning should “start.” Relative proportionality could theoretically be upheld in both very lenient and very repressive systems. The general level of repression cannot be fixed or explained only by the ranking of different crimes, a fact that is illustrated by the changes to the general level of repression in Sweden during recent years. Yet the level of repression impacts what kind of censure can be expressed for a crime and how blameworthy the least and most blameworthy crime is considered to be. The general level of repression also impact what is possible to express in terms of different degrees of censure. A more punitive legal system is one where all crimes, relatively speaking, become more similar in seriousness, considered more worthy of similar degrees of censure, as the available range for expressing different degrees of censure becomes more narrow. These decisions, the reasons for establishing the outer boundaries of relative proportionality in a particular way, are a matter of absolute, or cardinal, proportionalityFootnote 81 —proportionality in the sense that a particular punishment can be considered to fit the crime,Footnote 82 based on notions or perceptions or interests of fairness, humanity, resources, or of principles such as ultima ratio.Footnote 83
This means that proportionality cannot bind or constrain the punitive power of the state. There is no absolute notion of justice to which the principle can be anchored, no self-evident way to determine or argue how or why a punishment can be considered to fit the crime in a relative or absolute sense. The principle of proportionality and the justification of punishment is meant to be anchored to the blameworthiness of the crime, but there is no way to anchor this assessment of blameworthiness, which shows when comparing different countries at one point in time as well as when comparing the same country at different points in time.Footnote 84 Proportionality becomes necessarily indeterminate.Footnote 85 As Lacey and Pickard explain, “proportionality represents an intuitively shared starting point precisely because it is virtually indeterminate in its substantive implications: in other words, it simply defers the crucial and complicated processes of meaning-making, consensus-building and institutional development.”Footnote 86
E. The Principle of Proportionality in Practice
Proportionality then, is not only a legal framework to rely on, but also part of a discourse on criminal law—not only a way to achieve justice, but also a way of understanding criminal law and arguing what criminal justice is. Through the framework of proportionality, the argument goes, a proportional punishment can be decided, and this proportional punishment can be considered just precisely because it has been decided through the principle’s framework and not by any other considerations. The distribution of punishment can be legitimized no matter the consequences thereof.Footnote 87 This is a discourse that can easily be exploited.
The principle of proportionality was introduced in Sweden and in other contextsFootnote 88 against the backdrop of a deep-seated skepticism towards criminal law as a tool to impact the general level of crime in society or to treat individual offenders, both in regard to the effectiveness and the justice thereof. Footnote 89 Proportionality was meant to ensure that punishment could only be justified by deriving it from the thing that the offender could be said to have controlled: the crime itself. This is a specific notion of justice, to which the principle was supposed to be anchored. What was proportional and why this was so could be answered and explained, stabilizing the level of repression, by this skepticism towards criminal law and the commitment to limits on incarceration that followed. Footnote 90 This does not mean that the principle was anchored through the moral desirability of limited incarceration itself. Instead, this notion attached the principle to a view of criminal law that prescribed great care when reassessing proportionality. Footnote 91 A just criminal law was considered to be a criminal law limited in its scope and punitiveness. What actually limited the discretionary punitive powers of the state was not the principle of proportionality, but this very notion of criminal law that the principle rested upon. This can be contrasted with a view of criminal law in which it should be used and expanded, at least if circumstances are considered to call for it. This view rests upon another notion of the just criminal law, one in which criminal law should be used and expanded if that could prevent crime or protect the public. Footnote 92 With this notion of justice, appeals to proportionality can instead legitimize an endless expansion of criminal law in accordance with a purported need for crime control, a need that can become ever more pressing when crime is framed as a “systemic threat” through references to so-called criminal networks.
A political and institutional hesitancy towards criminal law meant that new assessments of proportionality had to be done with prudence and moderation. With the need for criminal law as a contemporary starting point, new assessments of proportionality are instead continually called for. Proportionality can thus become a way to justify a tough-on-crime approach when such measures are framed as a way to satisfy the needs of “the public” and the public’s view of the seriousness of crime.Footnote 93 This seriousness, though, is not out there to be found, not in law nor in “the public,” but rather constructed in and through crime policy and criminal law.
With this anchoring notion lost, the principle of proportionality cannot limit the punitiveness of crime policy. But the principle can still be used to argue that crime policy is rationally constrained. These punitive appeals to proportionality present proportionality as if proportionality in and of itself limits the punitive power of the state—as if such limitation follows from the inherent rationality of proportionality rather than a particular rationale and notion of criminal law—thus making the principle open for exploitation by the punitive powers the principle was supposed to temper.Footnote 94 There is no need to provide evidence towards the effectiveness of criminal law; the discourse of proportionality only demands that the punishment reflect the seriousness of the crime. The legislator can recast this seriousness in new forms in order to expand the punitive power of the state, and referencing proportionality ensures that this will not be considered excessive—or at least not unproportional. Footnote 95 These political assessments of penalty value and their underlying punitive notion of criminal law are made to appear as if they flow and are limited by crime as a fact and the neutral and natural demands of proportionality. But proportionality does not and cannot limit this assessment of serioussness. Proportionality reflects the politics ingrained in it and the different notions of crime policy and criminal law by which it is constructed. As such, proportionality does not funnel political suggestions to rational law; political suggestions are instead made to appear rational through references to proportionality.Footnote 96 Proportionality, as put by Lacey and Pickard, turns into a chimera.Footnote 97
F. Reverse-Engineering Punitive Proportionality
This does not mean that proportionality must be discarded. Lacey and Pickard have themselves explored the societal conditions that could possibly foster a notion of criminal law and proportionality, less punitive in character and more resilient towards punitiveness.Footnote 98 But the principle of proportionality, and the very chimera thereof, can also be useful to understand punitiveness. The principle presents an opportunity to explore the conditions and (im)possibilities for crime policy by exploiting the boundaries of proportionality, and to critique the crime policy underlying these conditions, by making visible the process whereby proportionality is made.Footnote 99
Proportionality seemingly remains central to criminal law because of the way that the punitive power of the state needs to appear rational, and not of boundless discretion, in order to be perceived as just. While proportionality could mean anything, it is used to argue for something. This means that appeals to proportionality can be taken seriously by approaching them not as an expression of the true and just relationship between crime and punishment, but as the crime-policy claim on justice and a rational criminal law that is made to be true when cemented in and through criminal law. Footnote 100 How proportionality is made and remade to justify a certain crime policy problem and solution can thus be understood by analyzing the construction thereof. Because the principle figures so centrally in criminal law, the considerations underlying punitive reforms must be fitted and framed as questions of seriousness when translated into law, to matters of damage and of culpability. This means that one can work backwards from the crime policy claims of proportionality through the legal framework in order to deconstruct the seriousness of a crime and to make visible the conception of the problem and the type of solution that criminal law supposedly offers. Approaching the principle through this type of discursive reverse-engineering can help explain the different notions of crime policy in the two quotes that open this Article and the consequences for criminal law thereof,Footnote 101 making this process by which punitive politics are made rational visible.Footnote 102
The process of reverse-engineering proportionality can be exemplified by analyzing one of the recent legislative processes that concerned so-called “criminal networks.” The concept has no legal definition in Sweden,Footnote 103 but refers to a series of crimes committed within and through different criminal constellations, both those more formally organized and those with more loose internal connections. In practice, though, this concept has come to refer to outlaw motorcycle clubs, family- and kin-based networks, and, most importantly in contemporary crime policy, gangs in urban environments.Footnote 104 The development of violent crime in Sweden is considered to stem from these networks, especially those in so-called “vulnerable areas” [utsatta områden], “geographic areas that are characterized by low socio-economic status and by the influence of criminals on the local community.”Footnote 105 The specifics of this definition are, as Nafstad and Parsa point out, “effectively racialized,” as some of the criteria for what is considered to constitute a “socially vulnerable area,” such as “possible parallel structures” and “extremism, particularly violence-promoting Islamic extremism,” “operate as signifiers for a racialized population, implying that the designated problematic areas in Sweden … are racialized neighborhoods.” These areas, “and the racialized populations within them, are defined as a problem by the government and for the police—of unrest, disorder, crime, or propensity to crime—which in turn legitimize increasing police efforts.”Footnote 106 In this context, they are also fundamental for the problem representation used to legitimize tougher penalties, constructing the problem to be met with punitive solutions.
In 2020, the government launched a committee to oversee the legislation related to the so-called networks. The committee appointed, the Gang-Crime Inquiry [Gängbrottsutredningen],Footnote 107 situated its proposals against a backdrop of increased violent crime, especially violence that makes use of firearms and explosives. From this backdrop, it identified a need for punitive measures to achieve a more effective and severe reaction towards crimes considered connected to criminal networks.Footnote 108 Effectiveness was at most a secondary interest though, as the need for change was described as independent of any positive consequences the reforms could have for the prevention of crime. The penalty scales still needed to be reviewed to ensure the impact of the principle of proportionality. Punitive measures could therefore be motivated as long as they could be argued from the perspective of the relative reprehensibility of the crimes in question.Footnote 109
The committee proposed changes to the penalty scales for a number of crimes, such as gross unlawful coercion, making an unlaw threat and a gross unlawful threat, robbery, extortion and gross extortion, and transfer of narcotics. Alongside these changes, a new aggravating circumstance was proposed, applicable for crimes that involved the use of firearms or explosives in a public place and for crimes that had a background in or were likely to provoke a conflict between groups of people in which firearms or explosives were used. The changes were implemented in July of 2023.Footnote 110
These changes were introduced despite previous measures and reforms,Footnote 111 because the punishments were not considered to reflect the seriousness of the relevant crimes, following new assessments of the damage, violation, or danger involved in these acts.Footnote 112 The importance of this framing can once again be understood by acknowledging that crime statistics could not in and of themselves explain these punitive reforms in a consistent manner. The number of reported cases of unlawful coercion or making an unlawful threat had not generally increased during the last decade.Footnote 113 The number of robberies had increased in the years 2018 and 2019, but then dropped from about 9,000 yearly reported cases to 7,300 in 2021 and 6,400 cases in 2023.Footnote 114 The number of reported cases of extortion had increased from about 4,000 yearly cases in 2017 to around 7,000 cases in the early 2020s, to about 9,000 cases in 2023,Footnote 115 while the number of reported crimes related to narcotics had increased since the mid-2010s but decreased since 2020.Footnote 116
Claiming that the penalty scales did not reflect the seriousness of the relevant crimes was a way to instead appeal to proportionality. But the seriousness of these crimes was not inherently in need of reevaluation. Legal reforms can always be argued from the perspective of the relative reprehensibility of the crimes, as the view of seriousness is remade. As such, the understanding of the proportional penalty scales was based on a certain crime-policy understanding of the problem, as the committee also noted: “The perception of the seriousness of a crime can change over time because of societal developments. The starting point should therefore be to achieve a certain upgrade in terms of penalty value where this is deemed justified based on the identified problem description.”Footnote 117
This problem representation, then, was delimited by the types of crimes considered relevant for a revaluation. These crimes were the ones considered “typical or commonly occurring” in criminal networks. Typical or commonly occurring, though, did not mean the crimes that were common numerically, but rather those considered characteristic for criminal networks.Footnote 118 The crimes committed in criminal networks span many areas of criminal law, the committee noted, but only some of these appeared “clearly connected to the trends in violence that have been described [in the report] and highlighted in our instructions.” Footnote 119 The conditions for a sufficiently “clear connection” was not made explicit. Instead, the identified types of crimes—drug-related and violent—were the ones already identified as characteristic of gangs and of gangs in “vulnerable areas” in the instructions for the inquiry. Meanwhile, most economic crimes were determined to be beyond the scope of the committtee’s work, even though the committee noted that such crimes were largely committed for profit or for converting the proceeds of other crimes. Still, they were not considered as “clearly linked” to the serious violence perpetrated by criminal networks as drug-related offenses. Footnote 120 In this way, the report produced by the committee inherited the government’s crime-policy understanding of criminal networks and of the need to target certain crimes (and criminals). While this assessment of the characteristic crimes for so-called criminal networks is not necessarily incorrect, it highlights the fact that the area where proportionality was considered in need of restoring was made through the contemporary direction of crime policy and the conceptualization and targeting of “vulnerable areas” in particular. This direction was then incorporated into criminal law and legitimized as rational through reference to the demands of proportionality.
Having constructed the problem, the reaction—tougher penalties—was thus made proportional and rational by reassessing the seriousness of the crimes involved, and in particular by reconceptualizing the harm thereof. Instead of understanding the potential damage, danger, and risk to the relevant legal interests as the more direct, individual consequences of specific occurrences of threats or violence, the relevant damage and danger of the relevant crimes were understood in a much broader sense, as the potential risks of “criminal networks” as such. This means that the harm and the relevant legal interests threatened were conceptually expanded against the backdrop of the systemic threat and the societal problem that criminal networks, especially in “vulnerable areas,” are considered to pose.
The relevant crimes were hereby considered, among other things, to contribute to a general sense of unsafety, the construction of parallel social structures, and new difficulties for police investigators.Footnote 121 A new understanding of the relevant legal interests and harms, molded by the problem representation of criminal networks, meant a new understanding of proportionality. This is perhaps most explicit in the way increased punishments were argued for the transfer of narcotics. Here, the proportional relationship between crime and punishment was transformed by relating the proportional punishment not to the individual sales of narcotics, but to the seriousness of the distribution of narcotics as a whole. This transformation stemmed from the ambition to target the problem of not only the sale of narcotics but the criminal networks in “vulnerable” areas themselves, as these gangs were considered to be selling narcotics as their “main occupation.”Footnote 122
Even if the quantity of drugs sold in a given transfer is small, the sale as such is an activity that leads to very negative consequences for both the individuals involved in it and for society as a whole. In our view, there are therefore strong reasons for increasing the punishments for offenses involving the sale or possession of drugs for the purpose of sale. Transferring drugs for profit should thus be considered so serious in and of itself that the penalty should amount to a number of months’ imprisonment even for a single sale of a small quantity or possession of a small quantity of drugs for such a purpose.Footnote 123
This reassessment of seriousness also relied on an emphasis on the importance of danger, damage, and risk, in comparison to the importance of culpability. Ideas of culpability and relative culpability feature heavily in some parts of the report, such as when the committee suggests a new criminalization for those who involve a person under 18 in a criminal enterprise. In this context, young people are considered to be exploited by their seniors in criminal networks:
In the light of the account given in this chapter and the problem we have described, there is now a clearer picture of how young people are exploited in crime in the context of the activities in criminal networks…. Young people are used to make money for others, for example by selling drugs. As part of acquisitive crime, they are also used for other risky criminal services where they may be exposed to harm, including violence…. Often, young people may be under pressure to start or continue committing offenses in contexts where the overall control rests with someone else. Young people may also choose, on a more voluntary basis, to commit offenses where the main benefits accrue to someone else. However, in the case of drug sales, it has been described in several instances that young sellers are in practice often not allowed to stop supplying revenue to the more established actors. Fear, demands for payment of real or fictitious debts or other reasons force them to continue selling drugs.Footnote 124
Yet this was not considered to have any implication for the proportional penalty scales for transfer of narcotics, even though young people, otherwise described as being, to at least some extent, less culpable than adults, were explicitly the ones expected to be most affected by this change. Here, the criminal subjects were constructed not as young perpetrators being exploited by their elders in criminal activities, but instead as sellers, as “representatives for the networks.”Footnote 125 The fact that the sale of narcotics is a common way to involve young people in criminal activities was thus rather seen as an argument for tougher penalties, even though they would target the people who are exploited rather than those exploiting them. This appears to be justified by noting that this involvement, contrary to what was stated elsewhere in the report, is done “seemingly without coercion.”Footnote 126 In this way, culpability is moldable based on the conceptualization of the problem and appropriate solution, much in the same way as harm.
Through this reconceptualization of penalty value, harm, and culpability, proportionality was thus reconstructed to legitimize punitive reforms. The reforms themselves, though, were envisioned much earlier in the legislative process through the direction and framings of contemporary crime policy. The government declared in a policy statement that it would increase the punishments for crimes that could be linked to “criminal conflicts” back in 2019, Footnote 127 and the Parliament echoed this sentiment by announcing that the government should propose how to considerably increase the punishments for these types of crimes. Footnote 128 The terms of reference for the commission of the Gang-Crime Inquiry also prescribed the direction for their overview, as they were to consider and regardless of their assessment propose increased punishments for “crimes in criminal networks” and for the transfer of narcotics.Footnote 129 These changes were already at this stage considered necessary for the punishments to reflect the seriousness of the relevant crimes.Footnote 130 Proportionality was politically unmade, and then remade with and for a new rationale. Doing so, this new proportional relationship could legitimize a sort of preemptive or preventive proportionality, accounting for temporally removed harms by recontextualizing and reframing the seriousness of a crime against the backdrop of criminal networks.
Much of the same process can be seen in the legislative histories for the different changes to the punishment for illegal possession of firearms. According to the legislator back in 2014, a “tougher stance” on illegal possession should be reflected in the structure and punishment for illegal possession of firearms, to account for the blameworthiness of the most serious types of offenses. This “tougher stance,” which might more closely appear as deterrence-based reasoning, was made into a question of proportionality by framing it as a new view of the damage associated with illegal possession. Like the distribution of narcotics, the damage of illegal possession was understood in a very expansive sense, by centering the risk of damage caused by other crimes.
Access to firearms is often a prerequisite for the commission of serious violent offenses, and the consequences of a violent situation may be much more severe if firearms are present. When the possession, transfer or lending of weapons is linked to criminal groups and conflicts, there is—as the shootings of recent years show—a real risk that the weapon will be used in serious violent offenses. Developments in the use of firearms in criminal circles therefore justify a stricter view towards the more serious forms of firearms offenses.Footnote 131
By centering the risk for further crimes, the legislator could argue that the proportional punishment for illegal possession should be more like the punishment for serious violent offenses, even though the crime of illegal possession does not require the perpetrator to cause any actual damage.Footnote 132 This risk was then further emphasized in 2023, in order to justify more severe punishments for illegal possession than that for serious assault. The government noted that when comparing offenses, “it must be borne in mind that the presumed harmful effect of a firearms offense, even in the case of possession of a single firearm, is very large and can involve a large group of people.”Footnote 133
In this way, proportionality was remade through the sense of risk. This potential risk for the abstract “public,” could then be considered to outweigh even actual damage caused to an individual, when assessing the relative seriousness of different crimes. This risk, then, was partly argued by referring to evidence regarding the possession and use of firearms,Footnote 134 but also by arguing that possession of firearms and explosives in and of themselves contribute to a sense of unsafety in the public.Footnote 135
Serious violence has also spread across the country and can no longer be considered a metropolitan phenomenon alone. The danger to the general public has increased and people outside the criminal conflicts are affected to a greater extent than before, with explosions occurring in apartment blocks and violence being directed at relatives. The increased availability of firearms and explosives in society, together with the increased propensity to use them in criminal settings, is systemic and poses a more serious problem today than ever before.Footnote 136
Yet similar arguments were only considered to call for a maximum of one year’s imprisonment for the normal degree of illegal possession, and four years for serious offenses, in the early 1990s:
There is undoubtedly a link between the presence of illegal weapons and violent crime. The use of firearms in violent crime has increased over the last 15–20 years…. Recent high-profile thefts of weapons are of great concern. I see a particular risk in the arming of extremist political groups, not only in the arming of individual members but also in organizations themselves gaining access to a large number of dangerous weapons…. Although the motives behind the acquisition of weapons without a license can often be reasonably suspected of being to commit other very serious crimes with even higher penalty values in the future, it is often difficult to prove a criminal intent with regard to a specific such crime, e.g. robbery, which is required for criminal liability for preparation to be imposed. There is an interest here in being able to curb this type of offense through a strict approach to the illegal possession of firearms. Vigorous action against unauthorized possession of firearms should reduce the incidence of illegal weapons and thus contribute to the fight again serious violent crime.Footnote 137
The seriousness of a crime then, is not only molded by the circumstances considered when assessing it, but also by the way in which these circumstances are framed and understood. This is not to say that there has not been any increase in the prevalence of crimes against the Offensive Weapons Act or violence committed with the use of firearms since the 1990s, but rather that these circumstances do not in and of themselves mean that tougher penalties are proportional and therefore rational measures. Instead, appeals to proportionality legitimize a particular understanding of the type of problem a certain crime poses, namely one where tougher penalties are a necessary or desirable measure against it. Furthermore, through an expanded notion of risk and harm, proportionality can also become a way to legitimize the punitive expansion of criminal law by reference to a sense of increased insecurity or unsafetyFootnote 138 even when crime is not increasing.Footnote 139 It also becomes a way to incorporate deterrence-based reasoning and preventive considerations into a retributive framework through the construction of seriousness, while not requiring any empirical discussion on the effectiveness of the reforms. With no anchor, proportionality remolds its own framework. More and tougher sentences become a sign of achievement. A new seriousness has been constructed, and the legislation has changed to reflect it. The requirements of proportionality become an ever-moving target.
Exploiting appeals to proportionality by this reverse-engineering thus show that an increasingly punitive conception of proportionality is not unproportional. It is no more, and no less, proportional than a previous assessment of a penalty value or the penalty scales, at least not by any metric inherent to the principle of proportionality itself. But the same goes for more lenient penalty scales, which could not be said to be unproportional either. Punitive measures then do not threaten the integrity of the principle of proportionality, but rather exploit this integrity, its claim of a rationally limited punitive power, in order to obscure and justify an increasingly punitive understanding of what is rational, fair, and just in criminal law. This is why proportionality must be explored, to understand how proportionality legitimizes a certain crime policy and what that in turn does to the notion of criminal justice. Claims of proportionality does not only help realize certain crime-policy ambitions, but discursively sidelines questions of why two years’ imprisonment for illegal possession of firearms is suddenly fairer than one year, why punitive measures are needed and fair for crimes in so-called criminal networks, but only for some of them, and why a fair criminal law requires young people to be punished more severely even when they are exploited for other’s criminal gain. It also effectively sidelines the question of the effectiveness of criminal law and of a higher level of repression in general. This punitive use of proportionality thus obscures the why itself, as if the why were to be found within proportionality as a concept and not in a political conception of criminal law, transforming a rationality into the rationality. Proportionality must not be relied on as the answer to why something is to be considered fair or just. Instead, it must be reworked, retooled, and reversed-engineered as a way to illuminate how that has come to be.
G. Conclusion
This Article calls for a dismantling of the principle of proportionality, to pick appeals to proportionality apart and to situate them in their crime-policy context, to make visible how a particular meaning of fairness and a just criminal law is made and legitimized.Footnote 140 Analyzing how the principle is constructed through different understandings, conceptions, and problem-representations of crime, punishment, and criminal law can thus illuminate the shape, boundaries, and (im)possible meanings of justice in contemporary criminal justice systems. In this way, this approach calls into question the assumptions underlying the purported need for punitive reforms and calls for a more transparent discussion on the policy rationales legitimizing them.Footnote 141
This approach is especially important to make visible how this rationale discursively limits how criminal justice can be imagined to be. Footnote 142 Claims of proportionality may be illusory, but the consequences of it are not. The way proportionality is constructed means that certain conceptions of harm and culpability, and certain understandings of crime, are constructed alongside it. The way that punitiveness is justified as proportional does not only mean that such measures are presented as a rational solution, but that other measures, beyond the scope of the framework of proportionality, are made irrational and unjust. Yet there could be other ways to address the harms and risks with which criminal law is concerned, other ways of seeing and understanding harmful situations other than through the lens and framework of criminal law, and other avenues for justice than that of criminal justice.Footnote 143
This discourse has consequencesFootnote 144 beyond the general increase in prison population. It also means that some people will increasingly often be seen as perpetrators of serious crimes, worthy of increasing reprehension and censureFootnote 145 through longer prison sentences, with the some only being those discovered, prosecuted, and sentenced. The likelihood of this is, importantly, not the same for everyone. This increased repression will thus especially target people who are already socio-economically disadvantaged.Footnote 146 Furthermore, the solution these reforms propose, while theoretically targeting all, is in practice targeted towards what is considered to be the crime-policy problem. This problem—in general and especially in relation to so-called criminal networks—has explicitly been linked with immigration. As such, these punitive reforms will mean the increased incarceration and deportation of people in the racialized “vulnerable areas.” Furthermore, as noted in one of the opening quotes, the Prime Minister has also called for the deportation of those involved in criminal gangs, even those not yet convicted of any crime, and a committee was appointed in May 2024 to consider how to allow for significantly more deportations of foreigners who commit crimes, citing the development of crime in the so-called criminal environment. The number of people currently sentenced to deportation are “not enough.”Footnote 147 Such a policy could also extend to some people with Swedish citizenship, if the government were to propose the possibility to revoke citizenship for dual citizens involved in crimes that pose a “systemic threat” to society, such as crimes in criminal networks that “challenge constitutionally protected values or the state’s monopoly on violence.”Footnote 148 The committee has already been instructed by the government to act from the point of departure that such crimes should lead to the revocation of citizenship.Footnote 149 For those that cannot be deported, an increasingly repressive crime policy can serve as the other option within the “imprison or deport” approach. This rationale then becomes a way to “classify, contain, or expel” certain groups as “unwanted or undeserving”Footnote 150 through the construction of “criminal networks,” their members, and the seriousness of the crimes associated with them. These effects are perhaps all that an increasingly punitive criminal law can achieve, which might not only be enough but “important, desirable, and necessary” according to this contemporary rationale behind punitive proportionality. Within this framework, there is no need for anything more or anything else. This rationality has thus come to mean that the principle of proportionality, intended to limit the use of criminal law, has instead come to limit the discursive notion of criminal law in such a way that its increasingly punitive use is the only possibility. This means that the principle of proportionality cannot act as a protection against punitive tendencies, and it must not be relied on as a guarantor against an excessive criminal law. Instead, the notions of justice that make for punitive proportionality, and the consequences thereof, must continually be explored and consistently challenged.
Acknowledgements
This Article was originally presented at the Inagural Transnational Junior Faculty Forum (TJFF) and further elaborates on the ideas for research outlined in Nikka, “Proportionalitet, straffvärde och ett rättvist påföljdssystem” [Proportionality, Penalty value and a Just Penal System] in Emblad & Strandberg Proportionalitet – Idéer och uppslag till forskning om proportionalitets nya innebörder inom olika rättsliga fält (2024) [Proportionality – Ideas and Suggestions for Research on the New Meanings of Proportionality in Different Legal Fields]. I want to thank all the participants at the TJFF for their valuable feedback and the commentators Jen Hendry and Clara Rigoni for their much-appreciated comments on the manuscript presented at the Forum. I also want to thank the participants at the proportionality-workshops in Gothenburg for the opportunity to discuss and develop this approach, and Ulrika Andersson and Linnea Wegerstad for their comments on earlier drafts of this manuscript.
Competing Interests
The author declares none.
Funding Statement
No specific funding has been declared in relation to this Article.
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