First-time offender, productive offender, offender with dependents: why the profile of offenders (sometimes) matters in sentencing

Bagaric,M and Alexander,T 2015, First-time offender, productive offender, offender with dependents: why the profile of offenders (sometimes) matters in sentencing, Albany Law Review, vol. 78, no. 2, pp. 397-446.

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Title First-time offender, productive offender, offender with dependents: why the profile of offenders (sometimes) matters in sentencing
Author(s) Bagaric,M
Alexander,TORCID iD for Alexander,T
Journal name Albany Law Review
Volume number 78
Issue number 2
Start page 397
End page 446
Publisher Albany Law School
Place of publication Albany, New York
Publication date 2015
ISSN 0002-4678
Summary Should a single mother of four young children who commits theft be sentenced to a lesser sanction than a woman who commits the same crime but has no dependents? Should a billionaire philanthropist be sentenced to a lesser penalty than the average citizen for assaulting a random bystander? Should a first-time thief receive a lighter sanction than a career thief for the same theft? The relevance of an offender’s profile to sentencing is unclear and is one of the most under-researched and least coherent areas of sentencing law. Intuitively, there is some appeal in treating offenders without a criminal record, those who have made a positive contribution to society, or who have dependents more leniently than other offenders. However, to allow these considerations to mitigate penalty potentially licenses offenders to commit crime and decouples the sanction from the severity of the offense, thereby undermining the proportionality principle. This article analyzes the relevance that an offender’s profile should have in sentencing. We conclude that a lack of prior convictions should generally reduce penalty because the empirical data shows that, in relation to most offenses, first-time offenders are less likely to reoffend than recidivist offenders. The situation is more complex in relation to offenders who have made worthy social contributions. They should not be given sentencing credit for past achievements given that past good acts have no relevance to the proper objectives of sentencing and it is normally not tenable, even in a crude sense, to make an informed assessment of an individual’s overall societal contribution. However, offenders should be accorded a sentencing reduction if they have financial or physical dependents and if imprisoning them is likely to cause harm to their dependents. Conferring asentencing discount to first-time offenders and those withdependents does not license them to commit crime or unjustifiablyencroach on the proportionality principle. Rather, it recognizes thedifferent layers of the legal system and the reality that sentencinglaw should not reflexively overwhelm broader maxims of justice,including the principle that innocent people should not suffer. Thisarticle argues that fundamental legislative reform is necessary toproperly reflect the role that the profile of offenders should have inthe sentencing regime.
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 ©2015, Albany Law School
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