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March 25, 2013

"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"

The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.

The Article then explores the significance of this differential impact for sentencing within a retributive framework.  It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence.  It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.

In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

March 25, 2013 at 01:51 PM | Permalink


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Frankly I think this is a silly way to approach the problem, and one that biases the outcome.

The true basis for taking action is a reasoned argument that unfolds over time. The priming premise of this argument is that the person in question committed a crime. This is followed by the base premise, which is that the crime in question is the root part of a criminal offense. Crimes are composed of elements; offenses are composed of bad attributes. This is followed by the conclusion that the person in question is a criminal offender who has a substantial risk of committing another crime. This argument puts the offender in jeopardy. Jeopardy attaches when this argument is primed.

Decision-makers should respond in a reasoned way to each part of this argument. Just deserts is one strategy for responding to a criminal offense, not the crime or the offender's risk of committing another crime.

The so-called sentencing revolution of the 1970's and 80's dumbed-down the problem and institutionalized an intuitive approach to the sentencing; both have caused great difficulty. Intuitive decision-makers pick out one part of the problem as here, or aggregate all approaches to the problem and respond as if they were one.

Posted by: Tom McGee | Mar 25, 2013 6:44:18 PM

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