The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions

51 Pages Posted: 28 Mar 2022

See all articles by Marie Manikis

Marie Manikis

McGill University - Faculty of Law

Abstract

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks, desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and illustrates the ways that this concept was mainly rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. This multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. In light of this, this article proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion.

Keywords: Proportionality; Sentencing; Just Deserts; Retribution; Consequentialist; Punishment

Suggested Citation

Manikis, Marie, The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions. 59(3) Osgoode Hall Law Journal, 2022 Forthcoming, McGill SGI Research Papers in Business, Finance, Law and Society Research Paper No. 2023-17, Available at SSRN: https://ssrn.com/abstract=4040259

Marie Manikis (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

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