Penal Parsimony: A Democratic Legitimacy Account

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.