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June 14, 2008

Good thoughts on good and bad works at sentencing

Professor Carissa Byrne Hessick now has posted here on SSRN a great new paper on a sentencing topic I have always found very interesting (and underexplored in the academic literature). This piece is titled "Why are Only Bad Acts Good Sentencing Factors?" and here is the abstract:

Few pieces of information play a larger role in determining a criminal offender's sentence than her prior criminal history.  The notion that an offender's prior bad acts ought to be considered an aggravating sentencing factor enjoys near-universal acceptance.  But fewer jurisdictions appear to consider an offender's prior good acts (such as honorable military service or charitable works) as a mitigating factor at sentencing.  This Article discusses the potential relationship between aggravating and mitigating sentencing factors. It also explores whether, in light of the overwhelming consensus that a prior bad act is aggravating, there is a principled reason that a sentencing system could fail to treat a prior good act as mitigating.

June 14, 2008 at 10:39 PM | Permalink


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I believe Prof Hessick has hit on what I think is one of the disturbing aspects of "modern" sentencing, which is that we have "structured" sentencing in name only. In theory, the presence of aggravating and mitigating circumstances should drive the decision making process in sentencing, leading the judge to an appropriate sentence.

In fact, in the world of elected judges and pervasive fears of being perceived as soft on crime, sentencing structures are result driven, supporting after the fact a judge's sentence.

I think the failure to find the existence of clearly proven mitigating factors, such as the def has accepted responsbility for his acts as evidenced by his guilty plea, is unconstitutional as a violation of separation of powers. The legislature sets up a system of guided discretion which is then honored in the breach.

I am currently representing a client who received lengthy consecutive sentences on two charges. On the first sentence, the judge did not find that by his guilty plea the def accepted responsibility for his acts, and imposed the maximum punishment allowed. On the second, and consecutive sentence, the judge decided to sentence mid-range and, in order to do that, he found that the def did accept responsibility for his acts.

How can it make any sense that a def, by pleading guilty in both cases, has a mitigator of accepting responsbility in one case but not another?

bruce cunningham

Posted by: | Jun 15, 2008 10:15:57 AM

I'm an undergraduate student:
In my admittedly uneducated opinion I think there are a few reasons why using prior good acts isn't as justified as a prior bad act.
First: a bad act is a reinforcement of the action. It can be used to establish a pattern of behavior. Whereas a good act completely flies in the face of what the proceedings just thrust into the light.
Second: who determines the merit of the good acts? There is a specific court system in place for trying and punishing crimes and placing weight on one's actions; however, there is no uniform agency to do this for GOOD acts. Should working on a charity for disadvantaged children hold more weight than serving meals to the elderly?

Posted by: Matthew Hyde | Jun 16, 2008 9:14:22 AM

When we open up sentencing considerations to everything including the kitchen sink, the outcome depends too much on the skill and resources of the lawyer putting on that case. A well thought out structure for sentencing produces more even-handed justice.

Posted by: Kent Scheidegger | Jun 16, 2008 11:17:56 AM

Prior criminal history (as opposed to generic "bad acts") shows disrespect for the law and a relative imperviousness to the deterrence that criminal sanctions are supposed to provide.

Prior good acts don't show the absence of those things in the way that prior criminal history shows their presence.

I look forward to reading the article, though.

Posted by: anonymous | Jun 16, 2008 2:34:54 PM

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