Towards a Theory of Mitigation

Abstract

Criminal sentencing was once an exercise in rehabilitation - judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime. The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment. The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing. This Article seeks to restore mitigation to a prominent role in modern sentencing. First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence. Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.

Keywords: sentencing, criminal law, punishment, mitigation