Deep Disadvantage, Blameworthiness, and Sentencing
Doing Justice, Preventing Crime (Oxford University Press 2020, Forthcoming)
35 Pages Posted: 15 May 2020
Date Written: April 20, 2020
Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against. People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders. The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine. Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing. Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority. The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.
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