(Particularly) Burdensome prison time should reduce imprisonment length — and not merely in theory

Bagaric,M, Edney,R and Alexander,T 2014, (Particularly) Burdensome prison time should reduce imprisonment length — and not merely in theory, Melbourne university law review, vol. 38, no. 2, pp. 409-443.

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Title (Particularly) Burdensome prison time should reduce imprisonment length — and not merely in theory
Author(s) Bagaric,M
Alexander,TORCID iD for Alexander,T orcid.org/0000-0002-1243-0660
Journal name Melbourne university law review
Volume number 38
Issue number 2
Start page 409
End page 443
Total pages 35
Publisher Melbourne University Law Review Association
Place of publication Melbourne, VIC
Publication date 2014
ISSN 0025-8938
Summary Imprisonment is the harshest sanction in our system of law. It is a sanction that isincreasingly imposed by the courts. The severity of imprisonment as a sanction stemsprincipally from the considerable restrictions it imposes on an individual’s liberty.However, the deprivation experienced by a prisoner can vary considerably, depending onthe strictness of the prison regime in which the prisoner is confined and his or her state ofhealth. Prisoners subjected to non-mainstream conditions almost invariably suffer morethan those in normal conditions. There is no settled approach regarding the extent towhich prison conditions should impact on the length of a prison term. The jurisprudencein this area is inconsistent. It is particularly unsettled when the additional burden stemsfrom subjective matters relating to an accused, such as ill health. In this article we makerecommendations regarding the manner in which prison conditions should impact on thelength of a prison term. The main recommendation is that prisoners who spend time inparticularly burdensome conditions should have their sentence reduced by a factor of0.5 days for each day spent in such conditions. In this article we also recommend thatAustralia should adopt a model similar to those which exist in some Scandinaviancountries, whereby the only deprivation stemming from imprisonment is the loss ofliberty. This would mean that few prisoners would ever be subjected to particularlyburdensome conditions. This would make many of the recommendations in this paperobsolete. However, there is no evidence that Australian prison conditions are about tofundamentally alter. Hence, the recommendations will remain pragmatically relevant inthe foreseeable future.
Language eng
Field of Research 180110 Criminal Law and Procedure
Socio Economic Objective 940405 Law Reform
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2014, Melbourne University Law Review Association
Persistent URL http://hdl.handle.net/10536/DRO/DU:30071485

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