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

Author:Bagaric, Mirko
 
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ABSTRACT

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 a sentencing discount to first-time offenders and those with dependents does not license them to commit crime or unjustifiably encroach on the proportionality principle. Rather, it recognizes the different layers of the legal system and the reality that sentencing law should not reflexively overwhelm broader maxims of justice, including the principle that innocent people should not suffer. This article argues that fundamental legislative reform is necessary to properly reflect the role that the profile of offenders should have in the sentencing regime.

  1. INTRODUCTION

    The impact that the past criminal history and achievements of offenders and their family ties should have on sentencing outcomes is one of the most unsettled and doctrinally complex areas of sentencing law. The main overarching guiding sentencing principle is the proportionality doctrine, which in its most basic form requires that the punishment should fit the crime. (1) Thus, a key focus of the sentencing inquiry is on the harshness of the sanction and the seriousness of the offense. (2) The offender's profile, at least ostensibly, stands outside this perspective.

    However, on closer analysis considerations personal to the offender are inextricably bound up in the sentencing inquiry. Thus, in most sentencing systems the key consideration affecting the penalty (apart from the circumstances of the offense) is the prior criminal history of the offender. (3) Moreover, the proportionality principle does not exhaust the range of considerations that properly inform the correct sentence and its duration. Other sentencing considerations, such as rehabilitation, may be capable of accommodating factors relating to the offender into the sentencing inquiry.

    In this article, we examine the relevance that three considerations that relate to the profile of many offenders should have in the sentencing calculus: the absence of prior convictions; the offender's past positive good acts; and the offender's family ties, particularly where other individuals are financially or physically dependent on the offender.

    The complexity of the inquiry regarding the profile of the offender has resulted in an incoherent and unsatisfactory jurisprudence. The general trend of the sentencing landscape is that the absence of prior convictions is a mitigating sentencing consideration, except in relation to certain defined offenses. (4) However, there has been no considered attempt by the courts to justify the rationale for this discount, nor to identify the circumstances in which the sentencing reduction does not apply. Past good acts do not normally mitigate penalty. (5) Family ties can, in some situations, mitigate penalty, but these circumstances (on their face) are rare. (6)

    We conclude that the current state of the law in this area is fundamentally normatively and empirically flawed. The absence of prior convictions should mitigate more significantly than is currently the case, given that the empirical data shows that in relation to most offense types, first offenders are statistically less likely to reoffend than recidivists. Offenders who have made significant social contributions should not receive a discount. However, offenders who have dependents should be treated more leniently than other offenders. The interests of the dependents should not be totally ignored in the sentencing calculus. They are innocent parties whose flourishing will necessarily be diminished by imprisonment of the offender. The objectives of sentencing law are important, but sentencing law does not overwhelm, and is not superior to, other legal imperatives such as the prohibition against punishing the innocent. The interest of blameless dependents should not be totally subordinated to the need to thoroughly punish offenders. First-time offenders and offenders with financial or physical dependents should receive a penalty reduction in the order of twenty-five percent. For considerations of clarity, the nature and quantum of the penalty adjustments in this article are examined from the perspective of a reduction to a term of imprisonment. However, in principle, in relation to proposed short terms of imprisonment, the mitigation that should be provided to first-time offenders and those with defendants could result in a penalty substitution, such that a term of imprisonment is avoided altogether in favor of, say, probation or a fine.

    The manner in which the profile of the offender should be accommodated in the sentencing calculus is discussed in the context of the sentencing systems operating in the United States and Australia. The sentencing regimes in these jurisdictions have many commonalities (principally because they have the same overarching goals in the form of community protection, deterrence, and rehabilitation), (7) however, the means invoked to pursue these objectives are strikingly different. (8) The contrasting manner in which these respective sentencing systems deal with an offender's profile illustrates possible approaches to the issue. It is argued, however, that ultimately both sentencing systems are flawed when it comes to incorporating the profile of offenders into sentencing determinations.

    In Part II of this article, we examine the manner in which sentencing law currently deals with the offender's profile. The remaining part of the article makes reform recommendations regarding the manner in which the profile of the offender should be factored into the sentencing inquiry. Part III argues that first offenders should receive a discount for all offense types, with the possible exception of property offenses. This is followed in Part IV by an explanation of the reasons that past good acts should not mitigate penalty. In Part V, we argue that offender dependency should reduce penalty. This is a particularly complex, multilayered issue which requires consideration of a number of multidisciplinary principles and ideals, including the right to a family, the proscription against punishing the innocent, and the doctrine of double effect. Part VI of the paper provides an overview of the main rationales of sentencing and notes that implementation of the recommendations will not undermine any of the key sentencing objectives so long as the recidivist premium for serious sexual and violent offenders is maintained even in relation to offenders with dependents. (9) The concluding remarks, in Part VII, set out the reforms that should occur to accommodate the analysis in this article.

  2. THE CURRENT STATE OF THE LAW

    1. The United States

      The United States does not have uniform sentencing laws or procedures. Each state and the federal jurisdiction have their own sentencing system. (10) The federal sentencing regime in particular is important given that approximately ten percent of all inmates have been sentenced for violating federal criminal laws (11) and, as has been noted by Douglas A. Berman and Stephanos Bibas, this system "profoundly shapes American criminal justice." (12) There are a number of key similarities that mark sentencing law throughout the United States, notwithstanding the uniqueness of each sentencing system.

      A defining feature of sentencing in the United States is the heavy reliance on standard or fixed penalties. Most jurisdictions in the United States have some form of standard or mandatory penalty provisions. (13) These penalties are normally set out in grids which utilize two main variables in arriving at the set penalty: offense seriousness and criminal history. (14) The penalties prescribed in the grids are generally severe and this has contributed to a steep increase in prison numbers over the past two decades. (15) Currently, more than two million Americans are incarcerated. (16) This equates to an imprisonment rate of over 900 people per 100,000 adults, (17) and sets the United States apart from all other nations on the basis that it imprisons more of its citizens than any other country. (18)

      The Federal Sentencing Guidelines ("Federal Sentencing Guidelines or Guidelines") are perhaps the best known standard penalty laws and are typical of the manner in which...

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