Proportionality and penal policy

Youngjae Lee

Chapter 9 in Research Handbook on Penal Policy, 2026, pp 171-189 from Edward Elgar Publishing

Abstract: Chapter 9 examines the various meanings and uses of proportionality in legal and ethical contexts and explores their implications for penal policy. Proportionality is not only a principle that punishment should fit the crime but also a distinct concept operative in self-defense, war, and constitutional law—each with its own normative structure. The chapter distinguishes between narrow proportionality (concerning individual punishment) and wide proportionality (concerning the overall costs and benefits of legal responses), as well as the principle of necessity. It analyzes how current criminal justice practices—particularly prosecutorial discretion and plea bargaining—can produce punishments that appear proportionate but are in fact the result of coercive threats enabled by disproportionate responses authorized by law. The chapter proposes a framework in which criminal law is used only when necessary and justified by its benefits, and punishment is imposed only within bounds determined by the principle of proportionality in punishment.

Keywords: Proportionality; Punishment; Self-defense; War; Constitutional law; Plea bargaining (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035308521
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