Vague Comparisons and Proportional Sentencing

Legal Theory 25 (2019): 26-52

27 Pages Posted: 10 Apr 2019 Last revised: 8 Jul 2019

See all articles by Jacob Bronsther

Jacob Bronsther

Michigan State University - College of Law

Abstract

The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice. I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance of the Problem, the comparison between a crime and a punishment upon which the ideal of a retributively deserved sentence is based. I argue that this comparison is not only vague, but remarkably vague, leading to an expansive array of “not undeserved” sentences. I conclude, however, that retributivism can only justify the least harmful “not undeserved” sentence.

Keywords: proportionality, criminal sentencing, vagueness, incomparability, retributivism

Suggested Citation

Bronsther, Jacob, Vague Comparisons and Proportional Sentencing. Legal Theory 25 (2019): 26-52, Available at SSRN: https://ssrn.com/abstract=3029672 or http://dx.doi.org/10.2139/ssrn.3029672

Jacob Bronsther (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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