Proportionality of punishment in common law jurisdictions and in Germany

Richard S. Frase, Carsten Momsen, Tom O’Malley, Sarah Lisa Washington

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

One of the most broadly accepted principles of punishment is that the severity of criminal sanctions should be proportional to the seriousness of the offence being punished. But proportionality requires a normative frame of reference - proportional relative to what underlying legal or normative values? Retributivists believe that punishment should be proportional to the offender’s degree of blameworthiness for the act(s) being punished. There are also several consequentialist (utilitarian) principles, which assess the proportionality of a penal measure relative to the expected benefits to be achieved by applying that measure. This chapter examines each of these meanings of proportionality in punishment, identifying the key elements of each concept, their similarities and differences, the ways in which common law legal systems and the German system have applied them and the possibilities for accommodating all of these principles in a single punishment model.

Original languageEnglish (US)
Title of host publicationCore Concepts in Criminal Law and Criminal Justice
Subtitle of host publicationVolume 1, Anglo-German Dialogues
PublisherCambridge University Press
Pages213-260
Number of pages48
ISBN (Electronic)9781108649742
ISBN (Print)9781108483391
DOIs
StatePublished - Jan 1 2019

Bibliographical note

Publisher Copyright:
© Cambridge University Press 2020.

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