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A Rational Theory of Mitigation and Aggravation in Sentencing: Why Less is More When It Comes to Punishing Criminals

79 Pages Posted: 18 Sep 2015  

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Date Written: 2014

Abstract

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.

Suggested Citation

Bagaric, Mirko, A Rational Theory of Mitigation and Aggravation in Sentencing: Why Less is More When It Comes to Punishing Criminals (2014). Buffalo Law Review Vol. 62. Available at SSRN: https://ssrn.com/abstract=2661887

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

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