Punishment and Sentencing

by Bagaric, Mirko

• ISBN13: 9781859416310
• ISBN10: 1859416314
• Format: Paperback
• Copyright: 2001-07-01
• Publisher: Cavendish Pub Ltd

Summary

In terms of the interests it deals with,sentencing is the most important area of law. Ironically, it is also arguably the least coherent. Nearly three decades ago sentencing was described as a wasteland in the law. Unfortunately, little has changed in that time. Sentencing decisions are often made in accordance with the idiosyncratic sentiments of sentencers, rather than on the basis of binding rules and principles. The broad purpose of this book is to suggest a way of introducing principle into sentencing. This is done by bridging the gap between the philosophical justification for punishment and sentencing law and practice. Part A of the book provides an overview of current sentencing law and practice. Part B critically examines the main contemporary theories of punishment. Part C discusses the implications that this has for the sentencing process. It is a useful text for students of criminology, law and philosophy courses, as well as a valuable resource for criminal law practitioners.

Table of Contents

Preface
Table of Cases
Table of Statutes
Table of International Instruments
Introduction	p. 3
The Need for Principle in Sentencing	p. 3
Outline, Purpose and Scope of Book	p. 6
Issues Not Discussed - Abolitionism and Restorative Justice	p. 9
Sentencing Law Overview - The Road to Nowhere	p. 11
The Absence of a Primary Justification for Sentencing	p. 11
The Judicial Approach to Sentencing	p. 13
Lack of Consistency in Sentencing	p. 15
Lack of Fairness in Sentencing	p. 25
Theories of Punishment and the Current State of the Debate	p. 33
The Definition of Punishment	p. 33
Retributive Theories of Punishment	p. 38
The Utilitarian Theory of Punishment	p. 41
Current State of the Debate and Criticisms of Utilitarian Theory of Punishment	p. 44
Compromise Theories of Punishment	p. 48
The Errors of Retributivism	p. 51
Judicial Approach to Retributivism	p. 52
Desert as a Natural Response - Intrinsic Retributivism	p. 56
Von Hirsch - Punishment as Denunciation and Censure	p. 67
Duff's Theory - Communication and Reconciliation	p. 72
Unfair Advantage Theory of Punishment	p. 86
In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights	p. 93
Punishing the Innocent and Utilitarianism	p. 93
Punishing the Innocent and Retributivism	p. 98
Utilitarianism and Rights	p. 106
Utilitarian Justification for Rights	p. 120
Utilitarianism and the Separateness of Persons	p. 122
The Decisiveness of Consequences	p. 124
Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?	p. 127
Incapacitation	p. 128
Deterrence	p. 138
Rehabilitation	p. 151
Proportionality in Sentencing: Its Justification, Meaning and Role	p. 163
The Role of Proportionality in Sentencing	p. 165
Definitional Matters	p. 168
Factors Relevant to the Seriousness of an Offence	p. 171
The Justification of Proportionality	p. 182
Commensurability Between the Offence and the Sanction	p. 188
Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments	p. 191
Background and Overview of Suspended Sentences	p. 192
Criticisms of Suspended Sentences	p. 194
Background and Overview of Preventive Sentences	p. 202
Objections to Preventive Sentences	p. 205
More Illusory Sanctions - Discharges and Bonds	p. 210
New Criminal Sanctions - Inflicting Pain Through the Denial of Employment and Education	p. 215
Principles Governing Criminal Sanctions	p. 216
Problems with Existing Sanctions	p. 220
New Sanctions	p. 222
Double Punishment and Punishing Character - The Unfairness of Prior Convictions	p. 229
The Relevance of Prior Convictions to the Sentencing Process	p. 230
The Doctrinal Basis for Prior Convictions	p. 235
Proper Approach to Prior Convictions	p. 246
Advantages of Flat Rate Sentencing - Unjust Society Concerns	p. 247
Consistency and Fairness in Sentencing - The Splendour of Fixed Penalties	p. 253
Criticisms of Fixed Penalties	p. 256
Outline of Fixed Penalty Regime	p. 264
Other Objections to Fixed Penalties	p. 270
Conclusion	p. 273
Bibliography	p. 277
Index	p. 297
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