“Michael Tonry and Sentencing Proportionality”

The title of this post is the title of this article authored by Richard Frase in the June 2025 issue of the Criminal Law Forum. (As noted in this prior post, this journal issue is devoted to celebrating the work of sentencing guru Michael Tonry, and I will be flagging various individual articles from the issue in the weeks ahead).  Here is the abstract of Frase’s article: 

This article examines how Michael Tonry’s views about proportionality of punishment evolved over time and influenced other sentencing scholars and reformers.  The article elaborates and defends two versions of the theory of limiting retributivism, building on arguments Tonry and other writers have made.  Tonry’s earliest writings about punishment proportionality adopted the limiting retributivism model previously proposed by Norval Morris.  That model views desert assessments as inherently imprecise; thus, to be retributively proportionate penalties need only fall within a range of severity that would not be widely viewed as undeserved — either clearly too severe or clearly too lenient.  In his later writings Tonry’s views shifted toward an asymmetric limiting retributive model.  Under that model, upper retributive limits on maximum permissible sanction severity must be as firm and precise as we can make them, whereas lower limits are much more flexible — offenders must never be punished more severely than they deserve, but for a variety of reasons it is permissible to punish them less than they deserve.  This article also calls attention to several important issues that have not been adequately addressed by advocates of either version of limiting retributivism, while also noting that many of these questions have likewise not been adequately addressed by proponents of a strongly retributive punishment model.  The article further demonstrates how resolving these issues is easier under a well-designed sentencing guidelines regime — a sentencing structure strongly endorsed in Tonry’s writings.