Lowering the Boom: A Brief for Penal Leniency

Abstract

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument's keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state's legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can't identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty.

The Impermissibility of Execution

“…There are a wide variety of retributivist attempts to vindicate capital punishment (van den Haag 1986;Sorell 1987;Pojman and Reiman 1998;Yost 2010). Space precludes even a cursory examination of these efforts.…”

“…Calculating the consequences of EA is easier in capital cases than in noncapital ones. For some discussion of the impact of EA on noncapital sentencing, seeYost (2021).…”