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May 16, 2015

"Towards a Theory of Mitigation"

The title of this post is the title of this new paper on SSRN co-authored by me and Carissa Hessick. Carissa is rightly the first name on the article, as she did most of the hard (and good) work, and I am grateful for being able to come along for the ride. Here is the abstract:

Criminal sentencing was once an exercise in rehabilitation — judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime.  The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment.  The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing.

This Article seeks to restore mitigation to a prominent role in modern sentencing.  First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence.  Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.

May 16, 2015 at 01:52 PM | Permalink


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The biggest news in this standard, pro-criminal, lying lawyer propaganda garbage, devoid of any mention of crime victims, especially if black and poor, devoid of any mention of the sole purpose of government, Job One and Job Last, public safety?

Appellate judges have held standard Supreme Court mitigating factors to be aggravating factors. An example would be a young super-predator with an extensive criminal record has caused his youth to correctly be seen as very bad news, and an aggravating factor.

Posted by: Supremacy Claus | May 17, 2015 9:34:11 AM

One other charm with that link is that you can also read some other papers written or co-written by our blog overlord.

Posted by: Joe | May 18, 2015 9:47:30 AM

While it is true that the abstract of the article doesn't mention crime victims, the article itself does. Whether a defendant has compensated his or her victim is one of the most widely accepted mitigating factors.

Posted by: CBHessick | May 18, 2015 11:13:51 AM

The victim compensation is not substantive. The real right is to be free of victimization. The compensation is still advocacy for the criminal. One not mentioned in the article but supported by me: assisting the victim at the time of the crime.

Posted by: Supremacy Claus | May 18, 2015 12:27:38 PM

Pretty gripe. Use of the feminine pronoun in an article on crime is PC and stupid sounding. That use implies the author is detached from the reality that 95 % of crimes are by males.

Posted by: Supremacy Claus | May 19, 2015 8:19:41 AM

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