Aggravating or mitigating? Comparing judges' and jurors' views on four ambiguous sentencing factors (original) (raw)
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Aggravating and mitigating factors in sentencing: comparing the views of judges and jurors
Australian Law Journal, 2018
This article reports the findings of the first study in Australia to compare the responses of judges and jurors in 122 real cases who were asked to identify the appropriate relevance and weight that should be given to some of the most commonly listed aggravating and mitigating factors in sentencing. The research reveals that, while jurors and judges in Victoria are alike in giving more weight to aggravating factors than mitigating factors and in supporting an individualised approach to sentencing, jurors give less weight than judges to some mitigating factors, including good character, being a first offender, youth, old age and physical illness. Jurors also adopted broader interpretations of aggravating factors like breach of trust and the relevance of prior convictions. They also preferred a different rationale for discounting sentences due to to family hardship.
Criminology & Criminal Justice, 2017
In recent times, parliaments have introduced legislation directing judges to take defined purposes into account when sentencing. At the same time, judges and politicians also acknowledge that sentencing should vindicate the values of the community. This article compares the views on the purposes of sentencing of three major participants in the criminal justice system: legislators who pass sentencing statutes, judges who impose and justify sentences and jurors who represent the community. A total of 987 Australian jurors in the Victorian Jury Sentencing Study (2013–2015) were asked to sentence the offender in their trial and to choose the purpose that best justified the sentence. The judges’ sentencing remarks were coded and the results were compared with the jurors’ surveys. The research shows that, in this jurisdiction, the views of the judges, the jurors and the legislators are not always well aligned. Judges relied on general deterrence much more than jurors and jurors selected i...
The focal concern perspective dominates quantitative explorations of judicial sentencing. A critical argument underlying this perspective is the role of judicial assessments of risk and blameworthiness. Prior research has not generally explored how these two concepts fit together. This study provides an empirical test of the focal concerns perspective by examining the latent structure among the measures traditionally used in sentencing research, and investigates the extent to which focal concerns can be applied in a non-US jurisdiction. Using factor analysis (as suggested by prior research), we find evidence of distinct factors of risk and blameworthiness, with separate and independent effects on sentencing outcomes. We also identify the need for further development of the focal concerns perspective, especially around the role of perceptual shorthand.
International Journal of Law and Psychiatry, 2018
In this paper, we focus on, a significant Australian sentencing appeal in which, after hearing expert evidence pertaining to cognitive function, brain scans, and neuropsychological testing, the Court imposed a less severe sentence than that originally imposed. Our aim is to produce an interdisciplinary critical analysis of the decision, and we approach this by analysing the judicial comments on the evidence pertaining to the offender's mental condition, and the reasoning about punishment. We conclude that the Court's inferences about frontal lobe damage and likely dementia are contestable, and the reasoning about mitigation of punishment based on these questionable inferences could have been improved by a focus on sentencing's retributive aim.
How Should Mental Illness Be Relevant to Sentencing.docx
Mississippi Law Journal, 2019
In addition to the nationwide phenomenon of mass incarceration, there exists a sub-problem in the U.S. of overrepresentation in prisons and jails of those with severe and persistent mental illnesses (SPMI). The disproportionate imprisonment of those with mental illnesses is one driving force of mass incarceration. Furthermore, we have reached an era characterized by the “criminalization of mental illness.” Driving this is another feature of the mass incarceration era, the change in the types of institutions that incarcerate those subject to social control in American society. With the deinstitutionalization movement, and the closure of mental health institutions (largely brought about by the 1963 Community Mental Health Act), there has been a shift towards incarcerating the mentally ill in criminal justice institutions such as prisons and jails. This essay will consider the role mental illness should play in sentencing, and how this might reduce the disproportionate levels of prisoners with mental illness. More specifically, this paper examines the sentencing rules where the defendant has a SPMI, but has failed to successfully meet the insanity defense.
Fitness to be sentenced: A historical, comparative and practical review
International Journal of Law and Psychiatry, 2006
A Canadian judicial decision recently held that a person convicted of a criminal offence who suffered a substantial deterioration in mental condition since the trial could be found unfit to be sentenced. The court based its conclusion on both historical arguments and the Canadian Charter of Rights and Freedoms. There are compelling justifications for recognizing this concept. The paper looks at the history of fitness and how the sentencing phase became disconnected from claims of unfitness in the late 19th century. It then considers theoretical justifications based on fairness, viewing sentencing as a moral discourse, and the effect of the Canadian Charter of Rights and Freedoms. Because of the number of practical questions that need to be addressed before implementing a concept of unfitness at the sentencing stage, the paper looks at some common law jurisdictions for guidance: Australia, New Zealand, and the American states of New York, Illinois, Connecticut, and Ohio. From these comparisons comes the idea of a "provisional cap". That is, the recognition of unfitness at the sentencing stage should be followed by a form of sentencing that takes into account the gravity of the offence, the prosecutor's position, any relevant aggravating or mitigating factors that can be adduced, and then results in a "provisional" sentence, whether custodial or community-based, which stays in effect until the offender becomes fit. The paper ends with a model that incorporates this approach while providing both that offenders will be confined, if necessary, in hospitals and not prisons, and also that the dispositions will be reviewed annually to ensure that the least restrictive and least onerous sanctions are imposed.
An empirical study of the use of neuroscience in sentencing in New South Wales, Australia
Frontiers in Psychology, 2023
While neuroscience has been used in Australian courts for the past 40 years, no systematic empirical study has been conducted into how neuroscientific evidence is used in courts. This study provides a systematic review on how neuroscientific evidence is considered in sentencing decisions of New South Wales criminal courts. A comprehensive and systematic search was conducted on three databases. From this search, 331 relevant sentencing decisions before 2016 that discussed neuroscientific evidence were examined. The findings of this study suggest that neuroscientific evidence appeared to contribute to sentencing decisions in less than half of the cases examined; and in the majority of these, it supported a more lenient sentence.