Problemen med proportionaliteten - en analys av proportionalitetsprincipen i Gängbrottsutredningen

Sammanfattning: This thesis examines how the principle of proportionality is used in a law proposal that suggests increased penalties. It aims to problematize if the principle of proportionality can ensure stable assessments of the relationship between crime and punishment in a way that satisfies the interest of fair punishment and that limits the punitive power of the state. It is therefore interested in examining the principle of proportionality as a metaphor, i.e., how it expresses a claim to ensure rational and righteous punishments. The thesis examines the historical and theoretical background of the principle of proportionality, as well as the role of the principle in the Swedish sentencing system today. This account is contrasted with a review of one of the latest large works of legislative history in criminal law, SOU 2021:68, Skärpta straff för brott i kriminella nätverk (Increased penalties for crimes in criminal networks), referred to herein as Gängbrottsutredningen (The gang crime report). A critical discourse analysis is used to examine how the principle of proportionality figures in the report, how it is depicted, how it is utilized and what that says about what the principle can do. The examination finds that the principle of proportionality is characterized by conceptual vulnerabilities. The principle relies on variable assessments and constructions of the seriousness of a crime, harm and culpability. This makes the principle discursively mouldable in accordance with the aims and interests of the legislator. Therefore, the ability of the principle to ensure fair punishments and to limit the punitive power of the state is dependent on the existence of societal conditions that can foster the will to limit the penalty levels. Such conditions are lacking in the current political, economic, and social climate, leaving the principle unanchored. Against such a background, claims that the principle could meet demands of justice and limit the punitive power of the state conceals the discursive power of a text, and how that power can be used to depict increased penalties as justified.