A rational (unapologetically pragmatic) approach to dealing with the irrational - the setencing of offenders with mental disorders

Bagaric, Mirko 2016, A rational (unapologetically pragmatic) approach to dealing with the irrational - the setencing of offenders with mental disorders, Harvard human rights journal, vol. 29, no. 1, Article number : 1, pp. 1-56.

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Title A rational (unapologetically pragmatic) approach to dealing with the irrational - the setencing of offenders with mental disorders
Author(s) Bagaric, Mirko
Journal name Harvard human rights journal
Volume number 29
Issue number 1
Season Article number : 1
Start page 1
End page 56
Total pages 56
Publisher Harvard University, Law School
Place of publication Cambridge, Mass.
Publication date 2016
ISSN 1557-5624
Summary People with mental impairment are so heavily over-represented in prisons and jails that jails have been labeled “warehouses for the mentally ill.” In many parts of the United States, there are more mentally impaired offenders in prisons than in hospitals for the mentally unwell. Offenders laboring with impaired mental functioning are often regarded as being less morally culpable for their crimes and hence less deserving of punishment. However, the reduced mental functioning of offenders does not diminish the harm caused to victims. People are no less dead if mentally unwell offenders kill them rather than offenders who are mentally sound. This tension has proven an intractable problem for sentencing law and practice. There are no clear, fair, and effective principles or processes for accommodating impaired mental functioning in the sentencing inquiry. It is an under-researched area of the law. In this Article, I explore this tension. Key to ascertaining the proper manner in which to incorporate mental illness into the sentencing system is clarity regarding the importance of consequences to the offender, as opposed to moral culpability. I analyze current approaches to sentencing offenders with mental health problems in both the United States and Australia. Despite the vastly different sentencing regimes in these countries, both systems are deficient in dealing with mentally ill offenders, but for different reasons. I propose a solution to administering sentences to offenders with a mental disorder that is equally applicable to both sentencing systems. Mental impairment should mitigate penalty. However, in determining the extent and circumstances in which it should do so, it is cardinal not to lose sight of the fact that those who are sentenced for a crime are not insane, and they were aware that their acts were wrong--otherwise they would not have been found guilty in the first instance. I argue that a standard ten percent sentencing discount should be accorded to offenders who were mentally disordered at the time of sentencing. There should be an even more substantial discount when it is likely that offenders will find the sanction--in particular imprisonment--more burdensome due to their mental state. This difference would ensure some recognition of the reduced blameworthiness of mentally impaired offenders and the extra hardship that some forms of punishment inflict on mentally *2 ill offenders, while not compromising the important objectives of proportionality and community protection. The only situations when mental disorder should not mitigate penalty are when the offender is a recidivist, serious sexual or violent offender. In these circumstances, the interests of the community are the paramount consideration. The analysis in this paper applies most directly when a term of imprisonment is imposed. However, the reasoning also extends to the threshold decision of whether or not a term of imprisonment should be imposed in the first place.
Language eng
Field of Research 180110 Criminal Law and Procedure
1801 Law
Socio Economic Objective 940403 Criminal Justice
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©[2016, Harvard University]
Persistent URL http://hdl.handle.net/10536/DRO/DU:30085612

Document type: Journal Article
Collections: Faculty of Business and Law
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