The Center for Law, Society, and Culture ( is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.

Sponsored by: Indiana University Maurer School of Law

"A Rational Theory of Mitigation and Aggravation in Sentencing: Why Less is More When It Comes to Punishing Criminals" Free Download
Buffalo Law Review Vol. 62

MIRKO BAGARIC, Deakin University, Geelong, Australia - Deakin Law School

Aggravating and mitigating factors can have a profound impact on the nature and severity of sanctions imposed on offenders. In the case of prior convictions, they can mean the difference between a fine and imprisonment and, in relation to some offenses, can add more than 10 years to a term of imprisonment. Despite the importance of aggravating and mitigating factors to criminal punishment, there is no unifying rationale which explains or justifies them. They have been developed and are applied in an ad hoc and impressionistic manner. There is no established doctrinal basis for conferring sentence reductions to offenders who, for example, are remorseful or whose family would suffer as a result of their imprisonment. Likewise, it is not clear whether recidivist offenders or those who commit crimes motivated by hate, or which involve a breach of trust, should receive a penalty enhancement. Given the jurisprudential wasteland in this domain it is not surprising that in some jurisdictions (such as in the United States) there are relatively few considerations that increase or decrease penalties; whereas, in others (such as Australia) there are hundreds of such considerations. Moreover, there is no consistency in approach regarding the type of considerations that should increase or decrease a penalty. This article advances a unifying theory which underpins and grounds aggravating and mitigating considerations in a manner which can be applied to explain, justify and cohere this area of law. It suggests that, in total, there should be 12 mitigating factors and four aggravating considerations. Legislative changes should be introduced to accommodate the recommendations, which will have the effect of making sentencing determinations fairer and the process more efficient.

"The Implications of Incorporating the Eighth Amendment Prohibition on Excessive Bail" Free Download
Hofstra Law Review, Vol. 43, No. 4, 2015

SCOTT HOWE, Chapman University, The Dale E. Fowler School of Law

In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.

I contend that incorporation solves two long-standing riddles about the clause. First, does it confer a right to bail? And, second, when bail is required, are the permissible goals of bail defined by construction of the clause itself? There has long been serious doubt that the clause grants any right to bail or defines any measure of excessiveness that exists apart from legislative direction. On this view, the clause is only a directive to judicial officers to respect the separation of powers by honoring bail legislation. However, I urge that incorporation implies that the clause must accomplish much more than this it if is to impose the kind of fundamentally important limits on state government that warrant incorporation. The clause, through construction, must grant a right to bail in broad circumstances and define the measure of excessiveness.

I also contend that incorporation calls for the Court to resolve two additional questions about the bail clause that it otherwise could have avoided. The issues concern the nature of the evidence that trial courts should consider in deciding bail questions and the standard that reviewing courts should apply in passing on the decisions of trial courts setting bond. On the first question, I contend that individualized consideration of the character, record and crime of an arrestee should generally inform bail decisions, which weighs against over-reliance on bail schedules. On the second question, I contend that the standard of review generally should ask whether a chosen bail amount is substantially more burdensome than required to reasonably assure the reappearance of the defendant. These conclusions balance the fundamental importance of the bail clause in safeguarding liberty and justice against several competing interests of government.

Finally, I argue that incorporation calls for rethinking the justiciability of excessive-bail claims on review of criminal convictions after trial. The prevailing view apparently is that the rights to bail and non-excessiveness are purely substantive. Denial is thought not to affect the validity of the trial. Based on this view and the notion that the rights end at the point of conviction, few cases requiring interpretation of the clause survive for presentation to the Supreme Court. I contend, however, that the rights to bail and non-excessiveness are not only substantive but procedural, because improper pretrial detention can prejudice the defendant at trial. Honoring the procedural aspect of the protections would acknowledge the full significance of unlawful detention for arrestees and enable the Court to receive more cases through which it could construct and enforce the clause.

"Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom" Free Download
Wilson and Ross (eds), Crime, Victims and Policy, Palgrave Macmillan, 2015

TRACEY BOOTH, University of Technology Sydney, Faculty of Law

The inclusion of victims and their victim impact statements (VISs) in sentencing modifies the adversarial sentencing hearing in order to reflect shifts in community sensibilities and expectations of fairness in legal proceedings. Drawing on findings from a recent qualitative study of victim participation in sentencing hearings in the New South Wales Supreme Court, this chapter explores the challenges generated by victim participation and the emotional nature of victim impact evidence for the sentencing judge. It considers how judges can respond to the victims’ interests in a manner designed to enhance the fairness of proceedings for victims while not jeopardising the offender’s entitlement to a fair hearing. Ultimately, fairness to victims in this context is more than an entitlement to submit a VIS. Fairness involves meeting a range of procedural conditions in relation to victims including: treating victims with dignity and giving them appropriate space and time to present their statements; keep victims informed where appropriate; and afford victims due recognition as a participant.

"Juvenile Life Without Parole in Law and Practice: The End of Superpredator Era Sentencing" Free Download
American University Law Review, Forthcoming

JOHN R. MILLS, The Phillips Black Project
ANNA DORN, The Phillips Black Project

This article examines the rapid changes underway in sentencing juveniles to life without parole (JLWOP). It examines both the rapid changes in law and in the actual sentencing practices in the counties and states that continue to sentence persons to die in prison for crimes they commit before reaching age eighteen. In Miller v. Alabama, 132 S. Ct. 2455 (2012), the United States Supreme Court held that mandatory sentences for such offenses violate the Eighth Amendment. In reaching that conclusion, the Court explicitly held open the question of whether any such sentence is constitutional. This article addresses when, where, and on whom JLWOP sentences are being imposed, questions relevant to its constitutionality.

Examining a comprehensive data set of all persons currently serving JLWOP sentences, we find that the vast majority of JLWOP sentences are the product of sentencing policies premised on the myth of the superpredator, are isolated in a handful of counties and states, and that the states with those polices are rapidly abandoning them. We also find that black offenders are twice as likely as their similarly situated white counterparts to receive JLWOP sentences.

"Experiencing Youth Justice: Process, Meaning and Legitimacy" Free Download

NICOLA CARR, Queen's University Belfast - School of Sociology, Social Policy and Social Work
SIOBHAN MCALISTER, Queen's University Belfast

This policy briefing paper reports on findings from a study funded by the Youth Justice Agency, which explored the transitions of young people into and beyond Woodlands Juvenile Justice Centre (JJC). Using a longitudinal qualitative approach which involved baseline life-history interviews along with follow-up interviews upon release, it explored from the perspectives of young people their: life histories – including family, school, community, employment; contacts with the criminal justice system; experiences of system contact; routes into custody; experiences of custody; plans for release, and challenges of transition from custody.

"Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is the Instinctive Synthesis" Free Download
UNSW Law Journal Vol. 38, No. 1, 2015

MIRKO BAGARIC, Deakin University, Geelong, Australia - Deakin Law School

Sentencing is the last bastion of law where judges have largely unfettered discretion. This is paradoxical given that sentencing is the area of law where the State acts in its most coercive manner - it has a profound impact on the lives of offenders and victims. Deliberately inflicting pain on offenders requires a sound justification and adherence to fundamental rule of law ideals in the form of transparency and consistency. The judiciary have resisted attempts to fetter their sentencing discretion. The arguments that have been used to preserve the breadth of the sentencing discretion are logically and jurisprudentially flawed and lead to outcomes that are pragmatically undesirable, to the point where the High Court of Australia has stated recently that the prosecution is not permitted to make submissions about an appropriate sentence. This is likely to discourage accused persons from pleading guilty. Further, an unfettered sentencing discretion facilitates the expression of subconscious judicial bias which has been shown to exist in relation to a number of traits including race, sex, physical appearance and economic status. This article explains why the current sentencing methodology in Australian is flawed and argues that a more rigorous and coherent approach to sentencing offenders is necessary.

"Psychosis Uncommonly and Inconsistently Precedes Violence Among High-Risk Individuals" 

JENNIFER L. SKEEM, University of California, Berkeley
JOHN MONAHAN, University of Virginia School of Law
PAUL S. APPELBAUM, Columbia University

A small group of individuals with mental illness is repeatedly involved in violence. Little is known about how often and how consistently these high-risk individuals experience delusions or hallucinations just before a violent incident. To address these questions, data from the MacArthur Violence Risk Assessment Study was used to identify 305 violent incidents associated with 100 former inpatients with repeated violence (representing 50% of incidents and 9% of participants), and test whether psychosis-preceded incidents cluster within individuals. Results indicated that (a) psychosis immediately preceded 12% of incidents, (b) individuals were “fairly? consistent in their violence type (ICC = .42), and (c) those with exclusively “non-psychosis-preceded? violence (80%) could be distinguished from a small group who also had some psychosis-preceded violence (20%). These findings suggest that psychosis sometimes foreshadows violence for a fraction of high-risk individuals, but violence prevention efforts should also target factors like anger control and social deviance.


About this eJournal

Sponsored by: Indiana University Maurer School of Law.

This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.

Editor: Joseph L. Hoffmann, Indiana University


To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email:

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)



Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)

Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal

Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law

Professor of Law, Indiana University Maurer School of Law

George H. Young-Bascom Professor of Law, University of Wisconsin Law School

Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law

Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

Voss-Bascom Professor of Law, Professor of Sociology [Emeritus] Review Section Editor - Law & Social Inquiry, University of Wisconsin Law School

Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law

John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law

Professor of Law, Indiana University Maurer School of Law

Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

Professor of Law and Political Science, SUNY Buffalo Law School

Professor of Law, University of Denver Sturm College of Law