If a lesser crime imposes the same or greater sentence as a more severe crime, is the punishment considered cruel?

One example, possessing a bottle of pills imposes a harsher sentence, longer term of imprisonment and exorbitant fine, than murder.

  • Can you state the law that makes you believe that to be the case? Also, what do you define as cruel?
    – Terry
    Jan 25, 2016 at 16:34
  • What do you define as lesser crime? I assume by cruel you mean it in the constitutional sense of cruel and unusual?
    – Viktor
    Jan 25, 2016 at 16:36
  • 2
    It seems that the relative severity of crimes is often judged by the relative severity of the associated penalty. See for example statcan.gc.ca/pub/85-004-x/2009001/part-partie1-eng.htm ("...each type of offence is assigned a seriousness 'weight'. The weights are derived from actual sentences handed down by courts in all provinces and territories."). In that context, this question is impossible. To ask it, as @Viktor points out, you need an independent objective method of ranking the relative severity of the crimes under consideration.
    – phoog
    Jan 25, 2016 at 17:51
  • @Terry It's the law's objective test to cruelty that matters and not my own. Since you asked, I would define cruelty using several approaches. One would be to determine if a person required rehabilitation but incapacitation was imposed instead. Second would be to test if the length of incapacitation exceeded the time required to reform an individual. Third, would be compare with other crimes to see if the punishment exceeded a more severe crime's penalty Jan 26, 2016 at 1:04
  • @phoog the seriousness test in the link is flawed because some crimes impose minimums that the judge can not vary from and some penalties for the same crimes are later reduced by legislation which isn't factored into the formula. I agree that there is a need for an independent objective method. In the US, there is a tripartate proportionality test - Solem v Helm Jan 27, 2016 at 4:49

2 Answers 2


I haven't really heard of crimes having a level of 'severity' attached to them. As phoog notes, the severity of crimes are generally measured by the harshness of their sentencing. Obviously, pretending to practice witchcraft (punishable via summary conviction) would be less severe than someone such as high treason (an indictable offence where you are liable to be imprisoned for life).

The issue here is that the severity of an offence is mostly a matter of opinion, and is biased. Generally, it is the government that defines the terms for punishment. When a court strikes down a law as being "cruel or unusual", the following test is generally served well: In order for a law to be struck down, it must be "so excessive as to outrage standards of decency" or "grossly disproportionate to what would have been appropriate." In R vs Smith, a mandatory prison sentence of seven years was struck down because the law didn't consider other factors in the crime, which made it unusual punishment.

The 'severity' of the crime really depends on the case itself, and not just the name and punishment for a crime. To support this, many crimes have accompanying "circumstances", that the court must consider when trying a case. § 269.01(1) defines an example of a circumstance, aggravating circumstance - assault against a public transit operator:

Aggravating circumstance — assault against a public transit operator

269.01 (1) When a court imposes a sentence for an offence referred to in paragraph 264.1(1)(a) or any of sections 266 to 269, it shall consider as an aggravating circumstance the fact that the victim of the offence was, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.

It's important to note that with the myriad of cases there are, it's difficult to determine a 'severity' of an offence. While you may be able to deduce a general system to classify, it won't always be accurate. There are just too many factors to consider, and whether such a punishment would be cruel or unusual would be up to the courts to decide by individual case.

  • Putting this in so people know this concerns Canda. Btw what happens if the legislature uses a nonwithstanding provision in the law?
    – Viktor
    Jan 25, 2016 at 21:55
  • @Viktor Thanks for pointing that out (I need to start looking at the tags -_-). That's actually a good question, and I'm actually not sure what the answer would be. I'm not even sure what the use of a notwithstanding clause would have in practice -> It can introduce a law and make it not subject to the constitution, but the judicial system seems like a different matter. You've got me :)
    – Zizouz212
    Jan 25, 2016 at 22:01
  • @Zizouz212 IMO, the severity of an offence would be measured by the amount of damaged it caused. Obviously killing someone is irreversible so it would be considered more damaging than theft of something that could be returned, therefore the punishment for theft should be less severe as it resulted in less damage than the murder offence Jan 26, 2016 at 1:16
  • @Breakskater But that's the issue. The severity of a crime can only be an opinion by civilians like you and myself, but not in the eyes of the law. Yeah, damages can be a level of severity, but it can only be a factor: The amount of damage something causes can't be the deciding element. Would aggravated assault that severely injures someone (rendering them quadriplegic) be more severe than manslaughter? Think about that, and you'll learn to realize that it's a difficult question to ask. What about crimes that are irreparable? Are there limits? Were there factors like duress? And so on.
    – Zizouz212
    Jan 26, 2016 at 1:20
  • Even to put the example in your question to effect: were the drugs being trafficked to a criminal organization that wished to kill multiple people, of which you were aware? Would that still be less severe than a single count of first-degree murder? While the former would also be first-degree murder, there's two arguments in place. That being said - I've got a law exam tomorrow, and I should probably be studying and getting some sleep :)
    – Zizouz212
    Jan 26, 2016 at 1:23

Probably not.

This is taken from Wex:

While the Eighth Amendment forbids grossly disproportionate punishments for capital sentences, the court is less clear on its boundaries for noncapital sentences. Capital sentences provide special constitutional protections that do not necessarily extend to noncapital sentences, as discussed in Harmelin v. Michigan, 501 U.S. 957 (1991). In Harmelin, the Justices disagreed over the existence of a proportionality requirement for noncapital sentencing proceedings. The lack of clarity on this issue was further discussed in Lockyer v. Andrade, 538 U.S. 63 (2003). In Lockyer, the Court determined that for noncapital sentences, a gross proportionality requirement is only available in “exceedingly rare” and “extreme cases.”

The Lockyer case was a guy who was sentenced to two life sentences (possibility of parole after 50 years) for stealing $150 of VHS tapes from Kmart. The procedural posture of the case is messy (finding that no federal habaes relief is available) and the facts are specific (three strikes law). But the holding is clear:

The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for §2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade’s sentence of two consecutive terms of 25 years to life in prison.

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