Justifying the grounds of mitigation

Abstract

Questions of mitigation arise whenever the sentence has to be kept in proportion to the seriousness of the offense. Thus, mitigation as such is unlikely to be of great concern to rehabilitationists, except insofar as they observe proportionality constraint. Nor is it likely to be central issue for incapacitative theorists unless it is relevant as affecting predictions of the offender's future conduct. But in desert theory, and in Benthamite versions of deterrence theory,(1) considerations of proportionality are particularly important, and so is mitigation. The very process of assessing the seriousness of offenses involves taking account of aggravating and mitigating factors. To some extent this process raises no special problems. Identifying the factors that may render certain crime more or less serious may be seen simply as specific aspect of the general task of determining the relative seriousness of different types of crime. This is not to suggest that the process is trouble-free: it involves whole array of value-judgements, requiring coherent principles and detailed study. Bentham did not shrink from this labor,(2) nor did Hegel,(3) but few modern writers have gone far down this road. A seminal article by Andrew von Hirsch and Nils Jareborg provides framework for tackling the issue within desert theory.(4) My focus in the present paper is not, however, on mitigating factors that are offense-related. Neither shall I be discussing the vexed question of previous record, treated elsewhere in this issue by Julian Roberts; nor the thorny problems of mitigation for pleading guilty or otherwise assisting the smooth functioning of the criminal justice system.(5) My purpose here is to raise questions about number of allegedly mitigating factors that pose problems of different kind. Should sentences be mitigated on account of acts of heroism by the offender, or collateral pains suffered by the offender, or good employment record, or social deprivation in the offender's background? Many sentencing systems pay some attention to one or more of these factors, but the questions of justification have been little explored. Acts of Heroism Should it be relevant to sentencing that the offender has in recent years saved child from drowning, attempted to rescue children from blazing house, or served in the armed forces with distinction?(6) Such factors do not alter the seriousness of the offense, and therefore any justification for taking them into account must be found elsewhere. Those who adopt rehabilitative approach to sentencing might argue that someone who has done heroic deeds is unlikely to require as much rehabilitation because there is already evidence that the offense is not necessarily typical of the offender's disposition. The English Court of Appeal in Reid observed that the offender's bravery in trying to rescue children from blazing house might justify the conclusion that he was a much better and more valuable member of society than his criminal activities would lead one to suppose.(7) An alternative approach, which may also be inferred from those words in Reid, is that courts are expected to register and to recognize positive social contributions by offenders. This seems to be linked either to the claim that public confidence in the courts would suffer if they passed sentence on offenders without making some allowance for these spectacular acts--an empirical claim, which stands in need of verification--or to the belief that sentencing should function as form of social accounting, with offenses counting as negative social acts which can in appropriate circumstances be (partly) offset by positive social acts. This argument sits well with some forms of restorative theory, which would maintain that through the act of heroism the offender has already effected some restoration of the legal order (and therefore less community restoration, or punishment, is required). …