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May 5, 2018

"A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders"

The title of this post is the title of this interesting article recently posted to SSRN authored by Mirko Bagaric and Peter Isham. Here is the abstract:

The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience.  There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending.  Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify.  Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders.  It can engender feelings of shame, embarrassment and humiliation.  At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law.

There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions.  Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences.  By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.  On other occasions, courts have held public condemnation is irrelevant to sentencing.  The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law.

In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions.  We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention.  The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders.  Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States.  We also consider the position in Australia, where the issue has been considered at some length.

May 5, 2018 at 12:29 PM | Permalink


The Parkland shooter has received numerous marriage proposals, and thousands of letters from sex starved, good looking girls.

If you commit a serious crime, embarrassment is not punitive, nor a deterrent.

Embarrassment may be punitive to an innocent, normal person, who has become the subject of a political witch hunt. False light should be added as actionable damage to be remedied in civil litigation against prosecutors, judges, and jurors. An Amendment to the constitution will be required to end the civil immunity of these horrible people. The Supreme Court has made it absolute.

Mueller should be sued by Trump, and collect damages from the personal assets of Mueller. The tax payer should not be punished for the partisan misconduct of a prosecutor. Mueller can go to GoFundMe.com, to get help from registered Democrats for the $millions he owes President Donald Trump.

Posted by: David Behar | May 5, 2018 12:54:07 PM

David, if you had stopped your comment after your first two sentences above, I would not immediately regret your return after a truly blissful month without your off-point rhetoric. But your final few sentences are examples of why so many (myself included) sometimes loathe how you comment here. As you return yo your bad habits, I may return to deletions for the good of the collective.

Posted by: Doug B | May 5, 2018 1:38:30 PM

Doug. What is your comment about, relevance?

Do you feel the Mueller/Trump matter is not relevant to a post on publicity and on embarrassment?

Posted by: David Behar | May 5, 2018 1:52:39 PM

Folks, it certainly was nice when Supremacy Claus was on sabbatical. I value this blog highly and regret that he has returned with his unwelcome comments. Does he need not understand that we don't want to hear from him?


Posted by: bruce cunningham | May 5, 2018 9:09:35 PM

excuse me, "Does he not understand that we don't want to hear from him?"

Posted by: bruce cunningham | May 5, 2018 9:10:37 PM

I forgot this is May, in my relaxed moments lately.

Posted by: MidWestGuy | May 5, 2018 9:36:00 PM

Bruce. You reach my comment. It is fun. It is fresh and new. It wants to protect and save the lawyer profession. It wants to crush the tyrants oppressing you. Kill the fiends, all 25,000 of them, so your life can be 10 times better. End all social pathologies, all disparities, all tyranny, all poverty. Have our nation soar.

You receive notice of a legal action. It makes you want to give up, to curl up and die, to stop whatever it is you are doing.

Now, tell me who is the biggest troll in our nation. This troll must be hunted, arrested, tried fairly for an hour, with its legal utterance as the sole evidence, then shot in the court basement upon reading of the verdict, treason and insurrection against our blessed constitution.

Article I Section 1 gives "all" lawmaking power to the Congress. The Congress is sent by and accountable to the voter.

All judicial review, every single executive branch rule enacted is treason. The authors of these rulings and decisions are filthy traitors. Execute them, in accordance with our laws.

Posted by: David Behar | May 6, 2018 2:10:22 AM

How about a rational approach to comments?

Posted by: John Neff | May 6, 2018 9:53:34 AM

John. Look up the definition of the word, all. Do you think denial of that definition by an entire profession is rational?

Posted by: David Behar | May 6, 2018 3:05:06 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB