Gauging the Intensity of Criminal Sanctions: Developing the Criminal Punishment Severity Scale (CPSS)

Abstract

Retributive theorists have claimed that restorative and other justice models are inadequate because they do not sufficiently consider proportionality either between crimes and punishments or between different types of penalties themselves. The retributive model, however, has been unable to adequately relate the severity of criminal harms to the gravity of criminal punishments, i.e., to establish cardinal proportionality. As a result, judges and other key criminal justice decision makers have had no means by which to assess the relative punitiveness of incarcerative and nonincarcerative sanctions, either to one another or to the seriousness of the harm that was inflicted on the victim. This article suggests that comparing the severity of disparate penalties on a single, multidimensional scale is both possible and desirable. It assumes that virtually any sentencing system, irrespective of its underlying philosophy and the degree to which severity is important, requires some means by which to characterize penalty severity to ensure the imposition of just sanctions. The article first lays a conceptual foundation for gauging penalty severity and then translates these concepts into a practical scale that can be applied at sentencing. The model is then applied to a variety of punishment options in New York City, and finally the policy implications and limitations of the model are discussed.