Michael Tonry (University of Minnesota – Twin Cities – School of Law) has posted Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment (Penal Censure (Anthony E. Bottoms & Antje Bois-Pedain, eds., Oxford: Hart, Forthcoming)) on SSRN.
Here is the abstract:
The retributive conception of punishment as a process for censuring blameworthy conduct is an important component of a complete theory of punitive justice, but by itself is not enough. Nor are ‘mixed’ theories that incorporate traditional retributive ideas as constraints on pursuit of consequentialist crime prevention goals. If punishment were unidimensional, involved only first offenders convicted of a single offence, and based solely on censuring blameworthy behaviour, theorizing would be easier: offenders should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of others convicted of the same and different offences. In mixed theories, punishments of individuals should never exceed what is deserved relative to the punishments of others. All that would be needed is a sufficiently discriminant ordinal scale of offence seriousness tied to proportionate punishments. Theories of punitive justice, however, cannot be unidimensional. Nor can they be premised on the situations of first offenders, on single offences, or on a single overriding value such as censure. More is at stake. A complete theory of punitive justice must also satisfy the requirements of independently important principles of fairness, equal treatment, and human dignity.