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Penal Parsimony: A Democratic Legitimacy Account

Political Theory
Public Policy
Social Justice
Social Policy
Normative Theory
Andrei Poama
Leiden University
Erin Kelly
Tufts University
Andrei Poama
Leiden University

Abstract

Is penal parsimony (hereafter, PP) – i.e., the principle which requires that penal sanctions ought to be least severe, given a set of otherwise defensible penal aims – a principle with independent normative force? Most current formulations of PP answer this question negatively, in that they posit a relationship of dependence between PP and other substantive principles of punishment (in particular, substantive principles that posit some penal aim – e.g., deterrence, rehabilitation, retribution). Contrary to these prevalent formulations, and in part because of their limitations, we argue that PP is a principle that has some independent normative force, and that this becomes clear once we stop construing it as a principle derived from (other) substantive penal principles, but as a principle about the state’s legitimacy to punish. In particular, we argue that we should construe PP as a principle of democratic legitimacy in punishment that requires minimal restrictions to relevant democratic rights – thus construed, PP sets legitimacy constraints on good/just punishment, i.e., on the pursuit of defensible penal aims (e.g., it requires that we should pursue retribution parsimoniously, but not that retribution implies parsimony). The move toward a democratic legitimacy formulation of PP has some advantages over other formulations, and some implications for the state’s sentencing practices.