Mitigating Factors: A Typology

Ewing, Benjamin

doi:10.1007/978-3-030-22811-8_18

Cited by 3 publications

(1 citation statement)

References 16 publications

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“…25 Another writer suggests that if we adopt this theory of punishment, it is possible to conclude that remorseful offenders deserve mitigated sentences because their remorseful actions like pleading guilty and apologizing ease their burdens on the criminal justice system, which contributes to general deterrence and thereby fulfills part of their moral obligation. 26 In a different kind of deontological desert argument -one of a more evidentiary nature -one could argue that genuine feelings of remorse serve to alter after-the-fact our assessment of the offender's conduct and culpability at the time the offense. That is, we may take the subsequent feelings as relevant in interpreting (or reinterpreting) what the offender must have had in his mind at the earlier time of the offense conduct.…”

Section: Acquiescing In Deserved Punishmentmentioning

confidence: 99%

The Opposite of Punishment: Imagining a Path to Public Redemption

Robinson

Sarahne

2019

SSRN Journal

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The criminal justice system traditionally performs its public functionscondemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms -through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

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Section: Acquiescing In Deserved Punishmentmentioning

confidence: 99%

The Opposite of Punishment: Imagining a Path to Public Redemption

Robinson

Sarahne

2019

SSRN Journal

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Mass Incarceration as Distributive Injustice

Ewing

2023

Palgrave Handbooks in the Philosophy of Law

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Reconstructing Gladue

Ewing,

Kerr

2024

University of Toronto Law Journal

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Section 718.2(e) of the Criminal Code directs sentencing judges to exercise restraint in the use of incarceration ‘with particular attention to the circumstances of Aboriginal offenders.’ In R v Gladue, the Supreme Court of Canada interpreted this as a remedial provision aiming to reduce the incarceration of Indigenous people. That has made it appear to be a failure by its own lights. Yet to write off section 718.2(e) and the Gladue principles would be to fail properly to understand their moral foundations and structure. Judges are called upon to reduce the incarceration of Indigenous people neither by working backwards from prison demographic targets nor merely by combating implicit bias. Rather, Gladue requires judges to open their minds to hitherto unappreciated reasons that many Indigenous offenders should be afforded mitigation, restorative justice, and community-based accountability. One reason, we argue, relates to the unfair criminogenic disadvantages disproportionately faced by Indigenous offenders. Another reason is that the Canadian state’s complicity in such disadvantages calls into question its legitimate authority and its standing to blame Indigenous offenders. In sum, Gladue calls upon our courts to widen the horizon of fairness in their treatment of Indigenous people. This matters for its own sake in each and every case, whether or not it brings about an appreciable reduction in Indigenous incarceration in the aggregate. Our reconstruction of Gladue not only rescues it from cynical dismissals but also helps to solve the central doctrinal puzzles surrounding it: how Indigenous offenders’ unique life circumstances must be connected to their offences to be mitigating; how Gladue principles should apply differently to more and less serious offences; how a variant of Gladue principles should be extended to members of other disadvantaged groups such as Black Canadians; and how judges should weigh the interests of Indigenous victims when sentencing Indigenous offenders.

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Mitigating Factors: A Typology

Cited by 3 publications

References 16 publications

The Opposite of Punishment: Imagining a Path to Public Redemption

The Opposite of Punishment: Imagining a Path to Public Redemption

Mass Incarceration as Distributive Injustice

Reconstructing Gladue

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