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September 21, 2015

"Rich Offender, Poor Offender: Why It (Sometimes) Matters in Sentencing"

The title of this post is the title of this intriguing paper by Mirko Bagaric recently posted to SSRN. Here is the abstract:

Wealth confers choice and opportunity. Poverty is restrictive and often leads to frustration and resentment.  Rich people who commit crime are arguably more blameworthy than the poor who engage in the same conduct because the capacity of the rich to do otherwise is greater.  Yet, we cannot allow poverty to mitigate criminal punishment otherwise we potentially license or encourage people to commit crime.

These two conflicting considerations are the source of intractable tension in the criminal justice system. The second perspective has generally prevailed.  Offenders from economically disadvantaged backgrounds normally do not receive a sentencing reduction based purely on that consideration.  This article examines the soundness of this approach. It concludes that there is a non-reducible baseline standard of conduct that is expected of all individuals, no matter how poor.  It is never tolerable to inflict serious bodily or sexual injury on another person.  Deprived background should not mitigate such crimes.

A stronger argument can be made in favour of economic deprivation mitigating other forms of offences, such as drug and property crimes.  While the key consideration regarding crime severity is the impact it has on victims (not the culpability of the offender), in relation to these offences the burden of poverty is the more compelling consideration.  This should be reflected in a mathematical discount (in the order of 25 per cent) for impoverished non-violent and non-sexual offences.  A related benefit of this discount is that it will shine a light on the strictures of poverty and thereby encourage the implementation of broader social interventions to eliminate the link between poverty and crime.

To this end, it is suggested that the biggest change that would reduce the link between crime and poverty is improving the education levels of all citizens.  Whilst this article focuses on sentencing law and policy in the United States and Australia, its recommendations are applicable to all sentencing systems.

September 21, 2015 at 07:06 PM | Permalink


Prof. Bagaric is the thoughtful Doug Berman of Australia.

Once again, an aggravating factor is proposed as a mitigating factor.

1) There is no poverty. Billions of people would love to trade places with th epoorest person of the US or of Australia. People who say there is poverty make a simple arithmetic mistake of not counting the value of welfare benefits, worth up to $50,000. The pseudo-poor in the US are fat. You cannot be poor if you are fat.

2) Poverty is a lifestyle choice in the US. Say you have mild intellectual disability. But you are willing to work, you will be worked all the hours you can stand, then be hit with income taxes. If your low income does not qualify for income taxes, the government will mail you $thousands in earned income credits. With a little help from family, you can have 95% of the lifestyle of everyone else. Poverty comes from bastardy, from priority on spending for addiction, from refusal to work to help or please others. The skills needed to survive in poor ghettos are useful in business.

3) As a Calvinist nation, we believe that God's favor is expressed on earth by wealth. So the culture is all in one direction, to work at maximum speed. If you do not disrupt school, which the path out of poverty, you should do well.

4) Poverty is a government policy to generate government make work jobs, in betrayal of Job One and Job Last of government, public safety. Instead of crushing crime and protecting strivers, the government has protected, privileged and empowered the criminal. Why? Because the criminal generates worthless government make work jobs.

Therefore poverty is a marker for high risk, someone who has chosen to betrary himself, his family, his nation. Poverty is therefor the reliable mark of someone who will never make better choices, and should be an aggravating factor, in all crime sentencing. It is a mark for someone who needs a structured environment to change, that means prison.

Posted by: Supremacy Claus | Sep 22, 2015 10:08:28 AM

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