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Commensurability and Crime Prevention - Evaluating Formal Sentencing Structures and Their Rationale

NCJ Number
Journal of Criminal Law and Criminology Volume: 74 Issue: 1 Dated: (Spring 1983) Pages: 209-248
Date Published
40 pages
This article suggests some general principles for evaluating a formal sentencing structure in just desert terms, as well as how such a structure's rationale can be identified.
The first sections of the study sketch the main desert requirements, describe the problems of a desert rationale (still to be resolved), and suggest how a system might be assessed in desert terms. The fundamental principle of desert in punishing convicted persons is that the severity of the punishment should be commensurate with the seriousness of the offender's criminal conduct. The principle of commensurate-deserts involves three requirements: (1) parity, which requires that defendants whose conduct is equally blameworthy should be punished with equal severity; (2) ordinal proportionality, which requires that the ranking and spacing of penalties relative to each other should reflect the comparative gravity of the criminal conduct involved; and (3) cardinal proportionality, which requires that at all points on the penalty scale, there should be a reasonable proportion maintained between the quantum of punishment and the gravity of the conduct. These are the requirements that must be considered in evaluating any desert sentencing structure. Some unresolved issues in desert theory are criteria for seriousness of offenses and the severity of punishments, the relevance of prior convictions, and determining what is a reasonable proportion between the quantum of punishment and the gravity of the conduct. The final sections of the study examine the structural differences in a sentencing scheme that indicate whether it emphasizes desert or incapacitation. A total of 135 footnotes are provided.

Date Published: January 1, 1983