Proportionality, Constraint, and Culpability

Criminal Law & Philosophy, Vol. 15, p. 373, 2021

U of Penn Law School, Public Law Research Paper No. 22-09

24 Pages Posted: 25 Feb 2022

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Date Written: 2021

Abstract

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment. It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent’s culpability in relation to their wrongdoing.

Keywords: Law & philosophy, criminal justice, desert, punishment, proportionality, severity, leniency, culpability, blameworthiness, responsibility, retributivism, negative retributivism, side constraints

Suggested Citation

Berman, Mitchell N., Proportionality, Constraint, and Culpability (2021). Criminal Law & Philosophy, Vol. 15, p. 373, 2021, U of Penn Law School, Public Law Research Paper No. 22-09, Available at SSRN: https://ssrn.com/abstract=4042011

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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