Victim-related Assumptions Underlying Plea-based Sentence Reductions: A Communicative and Experiential Framework

Abstract

Common law sentencing regimes rely on a series of assumptions around guilty pleas to justify sentence reduction. Several of these assumptions relate to the beneficial effects on victims suggesting that guilty pleas have a beneficial impact on victims, by either reducing process-related harms or contributing to their welfare. Others also focus on these effects on victims but are framed within a desert-based logic, suggesting that the guilty plea diminishes the offender’s level of blame since it is tied to remorse and to a desire to diminish the harms suffered by and increasing their welfare.

Following an analysis of case law, this chapter argues that victim-related assumptions are often readily made without careful consideration or engagement with the underlying sentencing rationales and individualised contexts. This risks affecting the process of censure and its dialectical value by blurring the underlying rationales and communicating inaccurate statements to the polity.

Building on a communicative and relational theory of punishment, the chapter proposes a dynamic and principled understanding of guilty pleas by ensuring that the assumed grounds for mitigation are (1) rooted within clear and principled sentencing rationales and (2) understood and weighed in relation to contextual grounds that justify pleas rather than formulated in abstract and pre-determined assumptions.

Keywords: Guilty plea, sentencing, victims, sentence reduction, mitigation, assumptions, communicative punishment