Proportionality in Sentencing and the Restorative Justice Paradigm: 'Just Deserts' for Victims and Defendants Alike? [Book Review]
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Criminal Law and Philosophy 4 (2):197-213 (2010)
The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their âjust desertâ. In Australian sentencing law, proportionality goes some way toward achieving this âbalancedâ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.
|Keywords||Proportionality Restorative justice Sentencing Victim Defendant|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
Andrew von Hirsch & Nils Jareborg (1991). Gauging Criminal Harm: A Living-Standard Analysis. Oxford Journal of Legal Studies 11 (1):1-38.
Citations of this work BETA
Göran Hermerén (2012). The Principle of Proportionality Revisited: Interpretations and Applications. [REVIEW] Medicine, Health Care and Philosophy 15 (4):373-382.
Similar books and articles
Tyrone Kirchengast, Recent Developments in Victim Agency in the New South Wales Justice System: The Case of Victim Impact Statements.
Tyrone Kirchengast, Sentencing Law and the 'Emotional Catharsis' of Victim's Rights in Nsw Homicide Cases.
M. Sigler (2000). The Story of Justice:Retribution, Mercy, and the Role of Emotions in the Capital Sentencing Process. [REVIEW] Law and Philosophy 19 (3):339-367.
Wesley Cragg (1992). The Practice of Punishment: Towards a Theory of Restorative Justice. Routledge.
Phillip Balsmeier & Jennifer Kelly (1996). The Ethics of Sentencing White-Collar Criminals. Journal of Business Ethics 15 (2):143 - 152.
Charles K. B. Barton (2001). Victim-Offender and Community Empowerment. International Journal of Applied Philosophy 15 (1):25-46.
Michael Davis (1982). Sentencing: Must Justice Be Even-Handed? [REVIEW] Law and Philosophy 1 (1):77 - 117.
Roozbeh Baker, Proportionality in the Criminal Law: The Differing American Versus Canadian Approaches to Punishment.
Steven Keith Tudor (2008). Why Should Remorse Be a Mitigating Factor in Sentencing? Criminal Law and Philosophy 2 (3):241-257.
Suzanne Uniacke (2011). Proportionality and Self-Defense. Law and Philosophy 30 (3):253-272.
Constance de la Vega & Michelle T. Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice.
Adam J. Kolber (2009). The Subjective Experience of Punishment. Columbia Law Review 109:182.
Matthias Klatt (2012). The Constitutional Structure of Proportionality. Oxford University Press.
Added to index2010-09-13
Total downloads9 ( #162,682 of 1,099,722 )
Recent downloads (6 months)1 ( #301,057 of 1,099,722 )
How can I increase my downloads?