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September 7, 2018

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

The title of this post is the title of this interesting-looking new paper just posted to SSRN authored by Allan McCay.  Here is its 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.

September 7, 2018 at 10:04 AM | Permalink

Comments

Papers like this make me really appreciate the work people are doing talking to actual jurors who consider actual mitigating evidence.

Posted by: John | Sep 11, 2018 8:32:04 PM

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