San Diego Law Review
Document Type
Article
Abstract
Criminal law can serve a variety of utilitarian purposes including deterrence, incapacitation, and rehabilitation. Nevertheless, there is broad agreement among criminal justice scholars that the pursuit of these purposes should be constrained by a requirement that punishment not be disproportionately severe relative to the offense charged. The proportionality constraint is likely to be especially important when considering the less heinous predatory crimes such as nonviolent thefts. Recent years have seen experiments by progressive prosecutors who deemphasize theft offenses as well as statutory schemes that treat many thefts as misdemeanors. With some empirical support, critics charge that these experiments have increased the level of theft in many cities, with harmful indirect effects as individuals and businesses take costly actions to try to minimize thefts. These critics observe that theft involves appreciable gain to the offender and a relatively low probability of being caught for a given offense. The worry is that society might be forced to choose between giving up on proportionality constraints or tolerating the high levels of theft that could result if those constraints are observed. This Article argues that a proper concept of proportionality need not be inconsistent with reasonable efforts to control theft. The important step is to view the severity of a sanction in terms of the expected costs being imposed compared with the expected benefits of the activity. With sanctions defined in that way, one can take a minimally retributive attitude toward nonviolent theft sanctions, one that is designed not to cause the offender to suffer but only to cancel the expected gains from the activity.
Recommended Citation
Christopher T. Wonnell,
Proportionality and Theft,
62
San Diego L. Rev.
673
(2025).
Available at:
https://digital.sandiego.edu/sdlr/vol62/iss4/2