The Place of Proportionality in Penal Theory

Abstract

The idea that the severity of punishments ought to be proportionate to the seriousness of crimes is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet in practice, sentencing is an inexact science, and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. The focus on an individualistic, moralized account of criminal law exacerbates these issues both by making proportionality more central than it needs to be in penal theory and by making the metrics harder to determine. An alternative account can be premised on a view of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The questions of metrics and of proportionality appear somewhat differently in such a political theory and in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.