Manifest Injustice? The Judiciary as Moderator of Penal Excess in the Sentencing of Youth for Murder

Abstract

A principled approach to the sentencing of young people requires recognition of their particular mitigating characteristics, including brain development. Contemporary approaches to the sentencing of murder involve mandatory or presumptive sentencing. Legislative allowance for judicial discretion has been suggested as a counterbalance to the punitive effect on young offenders. This article uses New Zealand as a case study to consider whether, and how, judges would exercise a ‘safety valve’ discretionary provision for young offenders. Judges acted (at least in part) to moderate penal excess in the imposition of long minimum periods of imprisonment (MPIs), but it seems that a discretionary sentencing provision of itself will not ensure proportionate and humane sentences for this category of offender. This lends support to the idea that appropriate legislative caps and a requirement of demonstrated risk to public safety for a sentence of imprisonment may be a better avenue for ensuring proportionality.

Beyond the Life Sentence – A Children’s Rights Lens on Sentencing for Murder

“…This article scaffolds on previous work (Lynch, 2018a). It extends the comparative analysis of penal responses to children who commit murder, and further elucidates what a children's rights-compliant response to serious offending by children should involve (Lynch 2018b(Lynch , 2018cLynch and Liefaard, 2020).…”

“…The children's rights and human rights framework also recognises the legitimacy of the interests of victims and the public (UN Committee on the Rights of the Child, 2019a: para. 76), though this aspect receives remarkably little attention in the child justice literature (Lynch 2018a;Lynch 2018b;Lynch 2018c;Van den Brink, 2019b). This section explores what the international children's rights and human rights framework requires when it comes to the interests of victims and the wider public in cases of child-perpetrated murder.…”

Towards a Principled Legal Response to Children Who Kill

“…A general theme across jurisdictions is how sentencing for violent offences such as homicide has become more punitive and with less scope for judicial discretion (Tonry, 2009). As the table demonstrates (Figure 2), the offence of murder is typically punished through mandatory or presumptive sentencing laws, where life imprisonment, 2 whole-of-life terms or long minimum periods of imprisonment 3 are enshrined in legislation, often with no or minimal exceptions for children (Lynch, 2018b). While the lesser culpability of the offence of manslaughter means a broader range of sentences available, conviction is still likely to result in a sentence of imprisonment.…”

“…It could reasonably be expected that judges would utilise this provision for children given their recognised lesser culpability and the harsher effect of punishment on them. However, an analysis of cases since the legislation was enacted in 2002 demonstrates that in only one of 22 convictions of children, was the option to impose a fixed sentence utilised (Lynch, 2018b). This was for a 13-year-old child convicted of murder.…”