Excessive criminal punishment amounts to punishing the innocent : an argument for taking the parsimony principle seriously

Punishing the innocent is incontestably repugnant. Punishing offenders more harshly than is justified is a form of punishing the innocent, yet this practice is commonplace in the United States. This Article sets out a normative argument in favor of less severe penalties for many forms of offenses. There is already an established principle, which limits punishment to the minimum amount of hardship that is required to achieve the objectives of sentencing. The principle is termed “parsimony” and is widely endorsed. Yet, in reality, it is illusory. It has no firm content and in its current form is logically and jurisprudentially incapable of grounding a persuasive argument for more lenient sentences. This Article gives content to the principle of parsimony. It is argued that application of the principle will result in a considerable reduction in the number of offenders who are sentenced to imprisonment and shorter sentences for many offenders who are jailed. The recommendations in this Article will enhance the fairness and transparency of the sentencing system. The argument is especially important at this point in history. The United States is experiencing an incarceration crisis. The principle of parsimony, properly applied, is an important key to ameliorating the incarceration problem. The Article also examines the operation of the parsimony principle in Australia. Unlike sentencing courts in the United States, Australian judges enjoy considerable discretion in sentencing offenders. Despite the vastly different approach to sentencing in Australia, it too is experiencing a considerable increase in the incarceration rate. It emerges that the courts in a tightly regimented sentencing regime (the United States) and a mainly discretionary system (Australia) effectively ignored the parsimony principle. It is not the strictures in the United States that curtail the imposition of parsimonious sentences; rather, it is the absence of a forceful rationale underpinning the principle and a lack of clarity regarding the attainable objectives of sentencing. This Article addresses these shortcomings. In doing so, it paves the way for fundamentally fairer sentencing outcomes in the United States and Australia.