Proportionality in the Philosophy of Punishment (From Crime and Justice: A Review of Research, V 16, P 55-98, 1992, Michael Tonry, ed. -- See NCJ-140392)

• NCJ Number: 140394
• Author(s): A von Hirsch
• Date Published: 1992
• Length: 44 pages
• Sale Source: University of Chicago Press
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This essay examines the principle of proportionality in punitive sentencing and its rationale, drawing on recent philosophical writing; attention is given to the "expressive" account of proportionality, according to which penalties should be distributed according to their blaming implications.

Abstract

The principle of proportionality, that is, that penalties be proportionate in their severity to the gravity of the defendant's criminal conduct, is apparently a basic requirement of fairness. Traditionally, penal philosophy has included a utilitarian tradition (dating from Bentham), which disregarded proportionality concerns, and a retributive tradition (dating from Kant), which did not provide a readily intelligible account of why punishment should be deserved. Recent philosophical writings have focused on penal dessert, explained in terms of a just allocation of the "benefits" and "burdens" of law- abidingness, or as a way of expressing blame or censure of criminal wrongdoing. Expressive theories can explain the rationale of the proportionality principle and also account for the distinction between ordinal and cardinal proportionality. Desert models fully abide by the principle of proportionality. Alternative models might be devised to give proportionality a central role but also permit limited deviations for other sentencing ends. 74 references