ABSTRACT
Chapter 10, “On Proportionality,” examines how the legislature should devise a punishment schedule on consequentialist grounds. Retributivists such as Michael Davis have us rank crimes and rank punishments, and then match them up so that the crime we most want to avoid is given the worst penalty, and so on. However, there is no reason to believe that a one-to-one matchup is possible, and the mere fact of the ranking does not entail that assigning the corresponding penalty to some criminal is actually justified. On the consequentialist view, some crimes are given steeper statutory penalties than other crimes because the effects of nonenforcement would be worse for more serious crimes than for less serious crimes. Worse crimes must bring about worse punishments so the state can take a stronger stand against the most heinous crimes in communicating social norms to its citizens. The result is a punishment schedule that roughly correlates with the scaling of penalties based on proportionality. Individual criminals are then assigned specific punishments within the sentencing ranges based on what they deserve. Thus, the two-tiered model of punishment can explain why the U.S. Supreme Court’s opinion regarding proportionality in Weems v. United States (1910) is justified.
