Mitigation is Difficult: A Moral Evaluation of a Mitigation Practice at Sentencing

Allan McCay and Michael Sevel (eds), "Free Will and the Law: New Perspectives", Routledge, Forthcoming

Sydney Law School Research Paper No. 18/55

24 Pages Posted: 5 Sep 2018  

Allan McCay

University of Sydney

Date Written: September 3, 2018

Abstract

In this paper I presuppose that blame and retributive punishment can be deserved, and construct a theory that is intended to morally evaluate the mitigation practices of criminal justice systems, using insights about the assessment of degrees of blameworthiness found in the work of Dana Nelkin, in conjunction with David Hodgson’s views on self-formation. After using the theory to evaluate an actual mitigation practice, I note that as a result of the complexity of any fully satisfactory theory, there is an epistemic problem inherent in the assessment of pleas in mitigation that means that even moderately competent evaluation of such pleas may be beyond the capacities of humans. I argue that this epistemic issue presents a problem for retributive practices, such as those found in many criminal justice systems.

Keywords: Free will, legal theory, Dana Nelkin, David Hodgson, punishment, mitigation, determinism, retributivism, libertarianism, sentencing, criminal law, difficulty

JEL Classification: K00, K10, K14, K30, K40, K42

Suggested Citation

McCay, Allan, Mitigation is Difficult: A Moral Evaluation of a Mitigation Practice at Sentencing (September 3, 2018). Allan McCay and Michael Sevel (eds), "Free Will and the Law: New Perspectives", Routledge, Forthcoming; Sydney Law School Research Paper No. 18/55. Available at SSRN: https://ssrn.com/abstract=3243226

Allan McCay (Contact Author)

University of Sydney ( email )

University of Sydney
Sydney, NC NSW 2006
Australia

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