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Censure and Sanctions$
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Andrew von Hirsch

Print publication date: 1996

Print ISBN-13: 9780198262411

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198262411.001.0001

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Anchoring the Penalty Scale

Anchoring the Penalty Scale

Chapter:
(p.36) 5 Anchoring the Penalty Scale
Source:
Censure and Sanctions
Author(s):

Andrew von Hirsch

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198262411.003.0014

In dealing with anchoring a scale, two main issues arise, which are considered successively in this chapter. The first concerns how the principle of proportionality constrains the scale's magnitude. The second relates to the anchoring of the penalty scale within applicable cardinal-proportionality constraints. Whether cardinal proportionality is satisfied, however, is not so much a simple yes-no matter as a matter of degree. Imprisonment (of durations varying with the gravity of the crime) is prescribed for all intermediate and serious offences. Minor crimes do not receive imprisonment. One would have to say that the scale raises questions comparable to the Draconian scale, but in a somewhat lesser degree. Thus, the upper bound of cardinal proportionality would be illustrated not so much by a bright line as by a shaded area, that grows progressively darker as one is speaking of more drastic penalty schemes.

Keywords:   proportionality, penalty scale, cardinal-proportionality constraints, cardinal proportionality, imprisonment, Draconian scale, crimes

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