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Proportionality as a Principle of Limited Government

58 Pages Posted: 23 Nov 2005  

Alice Ristroph

Brooklyn Law School

Abstract

This article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory - an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in liberty and equality, restrict the pursuit of penological goals. Principles of proportionality put the limits into any theory of limited government, and proportionality in the sentencing context is just one instance of these limitations on state power. This understanding of proportionality gives reason to doubt the assertion that determinations of proportionality are necessarily best left to legislatures. In doctrinal contexts other than criminal sentencing, proportionality is frequently used as a mechanism of judicial review to prevent legislative encroachments on individual rights and other exercises of excessive power. In the criminal sentencing context, we should recognize a constitutional proportionality requirement as a limit on penal power.

Keywords: proportionality, sentencing, criminal law

Suggested Citation

Ristroph, Alice, Proportionality as a Principle of Limited Government. Duke Law Journal, Vol. 55, 2005; Utah Legal Studies Paper No. 05-19. Available at SSRN: https://ssrn.com/abstract=851624

Alice Ristroph (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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