In Defense of Substantial Sentencing Discretion

34 Pages Posted: 21 Aug 2017 Last revised: 22 Aug 2017

See all articles by Antje du Bois-Pedain

Antje du Bois-Pedain

University of Cambridge, Faculty of Law

Date Written: August 3, 2017

Abstract

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

Keywords: Judicial Discretion, Sentencing, Disparity Research, Mitigation, Moral Responsibility for Sentencing Outcomes, Proportionality

Suggested Citation

du Bois-Pedain, Antje, In Defense of Substantial Sentencing Discretion (August 3, 2017). Criminal Law Forum, Forthcoming, University of Cambridge Faculty of Law Research Paper No. 39/2017, Available at SSRN: https://ssrn.com/abstract=3022746 or http://dx.doi.org/10.2139/ssrn.3022746

Antje Du Bois-Pedain (Contact Author)

University of Cambridge, Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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