Towards a Theory of Mitigation

56 Pages Posted: 14 May 2015 Last revised: 27 Jan 2023

See all articles by Carissa Byrne Hessick

Carissa Byrne Hessick

University of North Carolina School of Law; Prosecutors and Politics Project

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: May 12, 2015


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

Suggested Citation

Hessick, Carissa Byrne and Berman, Douglas A., Towards a Theory of Mitigation (May 12, 2015). 96 B.U. L. Rev. 161 (2016) , Ohio State Public Law Working Paper No. 297, University of Utah College of Law Research Paper No.118, Available at SSRN:

Carissa Byrne Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Prosecutors and Politics Project ( email )

University of North Carolina
Chapel Hill, NC
United States

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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