Mitigations: The Forgotten Side of the Proportionality Principle

46 Pages Posted: 1 Mar 2019

See all articles by Paul H. Robinson

Paul H. Robinson

University of Pennsylvania Law School

Date Written: February 28, 2019

Abstract

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality.

Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and “three strikes,” but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement. And given ordinary people’s nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations.

Such a nuanced system ideally would include reform of a wide variety of current law doctrines as well as, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases. Such a general mitigation ought not be limited to cases of “heat of passion” or limited to cases of murder, as today’s liability rules commonly provide. It ought to be available whenever the offense circumstances and the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness, as long as giving the mitigation does not specially undermine community norms.

Keywords: Blameworthiness proportionality, Model Penal Code, empirical desert, limiting retributivism, provocation, heat of passion, remorse, nullification, shadow vigilantism, mental or emotional disturbance, general mitigation provision, empirical study, criminal law codification, emotions

Suggested Citation

Robinson, Paul H., Mitigations: The Forgotten Side of the Proportionality Principle (February 28, 2019). U of Penn Law School, Public Law Research Paper No. 19-14. Available at SSRN: https://ssrn.com/abstract=3344671 or http://dx.doi.org/10.2139/ssrn.3344671

Paul H. Robinson (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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