What's instinct got to do with it? A blueprint for a coherent approach to punishing criminals

Bagaric, Mirko and Edney, Richard 2003, What's instinct got to do with it? A blueprint for a coherent approach to punishing criminals, Criminal law journal, vol. 27, no. 3, pp. 119-141.

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Title What's instinct got to do with it? A blueprint for a coherent approach to punishing criminals
Author(s) Bagaric, Mirko
Edney, Richard
Journal name Criminal law journal
Volume number 27
Issue number 3
Start page 119
End page 141
Publisher Lawbook Co
Place of publication Sydney, NSW
Publication date 2003-06
ISSN 0314-1160
Summary As a result of the instinctive synthesis approach to sentencing, decisions are often based on the intuitive inclinations and sentiments of sentencers, as opposed to binding rules and principles. In particular, insufficient regard is paid to the purposes and objectives that can be achieved through a state-imposed system of punishment. Momentum is gathering for the High Court to revisit the manner in which the sentencing inquiry is undertaken. We believe that the court should use the opportunity to implement fundamental reform in sentencing and direct the sentencing process down a more transparent and forensic path. We suggest that there are seven basic steps that need to be undertaken to achieve enlightened sentencing reform. Ideally this is a role for the legislature. However, given the populist climate in which we live we have little confidence that the legislature will undertake such an exacting task – one which would almost certainly lead to a less severe sentencing regime. The judiciary offers the strongest hope that at least some of these steps will be taken. This article offers a blueprint for how such reform can be implemented. The first step is simply to assume that the institution of state-imposed punishment is justified – this has already been undertaken. The second is to select the theory which best justifies punishing wrongdoers. Thirdly, public opinion must be ignored in developing sentencing principle. Next it must be determined which objectives (such as deterrence and rehabilitation) can be achieved through sentencing. The fifth step involves matching the punishment to the crime. Step six is to critically analyse the foundation, and reassess the relevance, of the hundreds of aggravating and mitigating considerations that presently affect the sentencing calculus. Finally, sentencing law and practice should be subject to ongoing reform to take into account emerging empirical evidence concerning the positive benefits that can be achieved through sentencing.
Language eng
Field of Research 180110 Criminal Law and Procedure
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2003, Lawbook Co
Persistent URL http://hdl.handle.net/10536/DRO/DU:30002079

Document type: Journal Article
Collection: School of Law
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