"The Relevance of State Misconduct for Mitigating Individual Punishment"

The title of this post is the title of this book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

This chapter is focused on the possible relevance of state misconduct for mitigating individual sentences.  I argued that state misconduct can justify mitigation where a sufficient connection is made between the state misconduct and the offender in one of two ways.  First, this may take the form of systematic discrimination whether or not intentional where offenders are subjected to overly harsh punishments as a result of bias against their protected characteristics, like race.  Secondly, this may take the form of deliberate bad faith that may not be systematically applied, but no less problematic.

It is argued that state misconduct matters for mitigation as a form of provocation that impacts culpability.  This might be understood differently by different penal theories, whether desert-based or consequentialist.  Either way, this view of mitigation is coherent with a variety of very different penal theories even if each might justify mitigation in different ways.

This view rests on an important assumption that it applies to states that can and do acknowledge when they, as a state, have engaged in state misconduct.  State misconduct happens and too often.  But no view of mitigation is possible where it is impossible for the state to recognise its shortcomings.  And, where it is found, the state should be compelled to ensure such misconduct is addressed so it is no longer a factor.