Anchoring the sentencing scale: A modest proposal

Abstract

This article proposes a partial solution to the anchoring problem in sentencing theory. I advance what I term the ‘commensurate harms principle’, according to which the losses and deprivations imposed on convicted offenders as punishment should be kept commensurate with the ‘standard’ harms (Von Hirsch and Jareborg, 1991: 4) their crimes cause victims. The principle is defended as an aid to setting sentences for core criminal offense types. Intelligent application of the principle requires us to gain an informed understanding of both the harms caused by crimes and the harms done by criminal sanctions, particularly imprisonment. Various objections to the principle are addressed, including claims that victim and penal harms cannot be compared and that the harms produced by crimes and criminal sanctions extend beyond victims and offenders. I contend that the commensurate harms principle would counsel the sparing use of imprisonment and often support less harsh sentences than are the norm in many countries.