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July 1, 2009

An international perspective on proportionality

I just saw via SSRN this paper coming from Australia titled "Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?". Here is the abstract:

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’.  Proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability.  Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments.

This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality which is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state.  The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.

July 1, 2009 at 07:12 PM | Permalink


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This is still an immature goal of the law, not worth anything to the owner of the law, the public.

The sole value of the criminal law is incapacitation. Death is the best and most reliable method. However, prison sentences based on character and the return of status crime would end crime as a significant social and economic inefficiency. The inefficiency is mostly experienced by and impairs black folks today.

123D would like cut crime by 90%, increase the level of trust, which is efficient, and enhance the quality of all feeling and achievement, especially among poor people. Kids could think about their studies in school rather than safety. They would know the gangbangers are on the wrong side of the law and have limited time left, instead of being practically immunized, and protected as lawyer clients, beyond the reach of anyone today.

This paper is more masking lawyer ideology for rent seeking, and protecting criminals from proper remedies. Proportionality will never be too little, it will always be too much. I find it appalling gall to force victims to collaborate with their own victimization. This blog is amazing in its extreme deafness to victims interests, especially future victims.

Posted by: Supremacy Claus | Jul 1, 2009 8:42:05 PM

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