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Book part
Publication date: 16 September 2020

Shona Minson

The chapter is based on studies that explored the consideration of motherhood as a mitigating factor when sentencing women to imprisonment in criminal courts in England…

Abstract

The chapter is based on studies that explored the consideration of motherhood as a mitigating factor when sentencing women to imprisonment in criminal courts in England and Wales. Drawing upon two studies I conducted, it examines the way in which motherhood has been constructed by the courts and the difficulties in centring women's experiences within sentencing. It demonstrates how only by moving to a focus on children's rights has it been possible to ensure sentencers consider the implications of a defendant's motherhood.

The chapter outlines the parameters within which a sentencer can consider motherhood and explores some of the findings from the qualitative research I undertook with Crown Court judges, as part of a larger study in which I also interviewed children whose mother was at the time of interview in prison and the adults providing care to the children in her absence. The studies found that there was inconsistent understanding of a sentencer's duty to consider the impact of any sentence upon dependent children, coupled with a lack of understanding of the consequences of maternal imprisonment for a child. The ways in which this contravenes the Human Rights Act, 1998 and the United Nations Convention on the Rights of the Child 1989 are identified.

The resources which have been developed for sentencing professionals as a consequence of that work are discussed before considering the lack of concern for women's motherhood when imprisoning women on remand or recall. The chapter concludes with a call for motherhood, and not just children's rights, to be centred in sentencing decisions.

Details

Mothering from the Inside
Type: Book
ISBN: 978-1-78973-344-0

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Book part
Publication date: 1 January 2014

Ross Kleinstuber

The very contextual nature of most mitigating evidence runs counter to America’s individualistic culture. Prior research has found that capital jurors are unreceptive to…

Abstract

The very contextual nature of most mitigating evidence runs counter to America’s individualistic culture. Prior research has found that capital jurors are unreceptive to most mitigating circumstances, but no research has examined the capital sentencing decisions of trial judges. This study fills that gap through a content analysis of eight judicial sentencing opinions from Delaware. The findings indicate that judges typically dismiss contextualizing evidence in their sentencing opinions and instead focus predominately on the defendant’s culpability. This finding calls into question the ability of guided discretion statutes to ensure the consideration of mitigation and limit arbitrariness in the death penalty.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78350-785-6

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Book part
Publication date: 25 May 2017

Celesta A. Albonetti

This chapter presents four theories that hypothesize race/ethnicity disparities in sentence outcomes. Empirical studies assessing the relationship between defendant’s…

Abstract

Purpose

This chapter presents four theories that hypothesize race/ethnicity disparities in sentence outcomes. Empirical studies assessing the relationship between defendant’s race/ethnicity and sentence severity are discussed.

Methodology/approach

I focus on federal sentencing in terms of support or non-support of the theoretical perspectives.

Findings

Sentence disparity linked to defendant’s race/ethnicity are observed as net main effects, as a component in joint-conditioning effects with other extralegal defendant characteristics, and as a variable that conditions the effect of process-related mechanism of discretion, and legally relevant case characteristics, and as indirect effects.

Originality/value

Theories share substantial conceptual overlap in specifying the relationship between defendant’s race/ethnicity and predictions of the effect of defendant’s race/ethnicity on sentence severity.

Details

Race, Ethnicity and Law
Type: Book
ISBN: 978-1-78714-604-4

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Book part
Publication date: 1 September 2008

Ruthy Lazar

The ways in which battered women respond to domestic violence, and the ways the legal system constructs those responses, constitute the framework of this chapter. The…

Abstract

The ways in which battered women respond to domestic violence, and the ways the legal system constructs those responses, constitute the framework of this chapter. The analysis focuses on mitigation in sentences of battered women who killed their abusers and examines the manifestation of agency and victimization in the mitigation structure. My thesis is that these women are perceived by courts solely as victims who lack agency and autonomy. Three main themes emerge from the analysis: first, the courts focus on the mental state of the defendants, stressing their psychological deficiencies as the primary mitigating factors. Secondly, many cases are categorized by courts as unique cases. Thirdly, in several cases the courts portray the women as “victims of circumstances”. An alternative analysis to that offered by the courts, one that seeks to reframe the mitigation process, is introduced in this chapter. According to this analysis, the narrative used in cases of battered women who kill should be changed to reflect dimensions of agency and resistance. In the suggested discourse, the abuse these women suffer is acknowledged, but is used to explain the women's urge to self-preservation and thus, the rationality and reasonableness of their acts.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84855-090-2

Book part
Publication date: 10 October 2014

Aleksandr Khechumyan

This chapter aims to demonstrate that the fundamental human rights principle that no one should be subjected to (grossly) disproportionate punishment should be interpreted…

Abstract

Purpose

This chapter aims to demonstrate that the fundamental human rights principle that no one should be subjected to (grossly) disproportionate punishment should be interpreted to take into account terminal illness of the offender. It should be applied both during imposition of the sentences and also during execution of already imposed sentences.

Design/methodology/approach

In order to reveal whether this principle takes into account serious medical conditions, including terminal illness of the offender in the calculus of the proportionality of punishment and whether it is applicable at the execution stage of sentences, this chapter examined the roots of the fundamental human rights principle of proportionality of punishment by briefly surveying the penal theory, jurisprudence, court cases, laws, and legislative history from the U.S. federal and state jurisdictions and from Europe.

Findings

There is a consensus among surveyed theories that terminal illness of the offender is an element of the principle of proportionality of punishment. Thus the fundamental human rights principle must be interpreted to take it into account. The principle should be observed not only at the imposition stage, but also at the execution stage of already imposed sentences.

Originality/value

This chapter re-examines the roots of the fundamental human right to not being subjected to (grossly) disproportionate punishment. It does so in order to demonstrate that the right should be interpreted to take into account terminal illness of the offender and that it should be observed not only at the imposition stage, but also at the execution stage of already imposed sentences.

Details

Punishment and Incarceration: A Global Perspective
Type: Book
ISBN: 978-1-78350-907-2

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Article
Publication date: 11 April 2022

Emily M. Homer and George E. Higgins

The purpose of this study is to investigate the federal sentencing of organizational probation for environmental offenders using the focal concerns. Those organizations…

Abstract

Purpose

The purpose of this study is to investigate the federal sentencing of organizational probation for environmental offenders using the focal concerns. Those organizations that are more blameworthy should be sentenced to longer probation terms. However, little research has been conducted to examine whether probation is being sentenced accordingly. This is especially true for organizations convicted of environmental offenses, which are often thought of as deserving of increased penalties compared to non-environmental offenses.

Design/methodology/approach

This study used quantitative federal sentencing data from 2011 to 2020 (n = 1,436) and eight potential measures of blameworthiness grounded in the focal concerns.

Findings

The results showed that those organizations convicted of environmental crimes received 30% longer probation sentences than those not convicted of environmental crimes. However, additional measurements of blameworthiness derived from the existing literature of focal concerns were not relevant to probation sentencing decisions.

Originality/value

This study extends the application of the focal concerns and increases the body of knowledge regarding the sentencing of federal environmental offenders.

Details

Journal of Financial Crime, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1359-0790

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Book part
Publication date: 1 September 2008

M. Catherine Gruber

This chapter explores some of the risks and constraints associated with defendants’ apologies during allocution at sentencing. It argues that defendants’ stigmatized…

Abstract

This chapter explores some of the risks and constraints associated with defendants’ apologies during allocution at sentencing. It argues that defendants’ stigmatized institutional role identities in conjunction with the constraints imposed by the discursive context of allocution function to limit both the effectiveness with which defendants can speak on their own behalf and the kinds of things that they can say. Allocution has long been understood as a protection for defendants. This chapter proposes that the ideologies associated with this turn at talk have functioned to obscure the ways in which allocution preserves existing power configurations instead of challenging them.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84855-090-2

Abstract

Details

Leading with Presence: Fundamental Tools and Insights for Impactful, Engaging Leadership
Type: Book
ISBN: 978-1-78714-599-3

Book part
Publication date: 9 December 2003

Susan Elizabeth Sweeney

A “sentence,” according to the Oxford English Dictionary, is a pronouncement of opinion, a pithy statement, an authoritative decision, or an idea expressed in a…

Abstract

A “sentence,” according to the Oxford English Dictionary, is a pronouncement of opinion, a pithy statement, an authoritative decision, or an idea expressed in a grammatically complete, self-contained utterance. Notice that these definitions all emphasize thought rather than action. Of course, sentences – such as “Let there be light,” “Keep off the grass,” “You shall be hanged by the neck until dead,” and “Notice that these definitions all emphasize thought rather than action” – may command or recommend an act. Some philosophers even maintain that “certain classes of utterances, in certain situations…bring about, rather than refer to, a new state of fact” (Hollander, 1996, p. 178). J. L. Austin, whose book How to Do Things with Words established the field of speech-act theory, argues that “performative” statements can have the effect of actions (1962).1 And yet the words in a sentence – whether it is an ordinary linguistic unit or the judgment in a criminal case – are still distinguishable from the deed they describe. The differences between pronouncing and executing sentences even led Justice Antonin Scalia to assert, in Wilson v. Seiter, that restrictions against “cruel and unusual punishment” should apply only to pain “formally meted out as punishment by the statute or the sentencing judge,” or meant to be cruel and unusual by the inflicting officer (1991, p. 2325). He is assuming, of course, a legal system that “guarantees – or is supposed to – a relatively faithful adherence to the word of the judge in the deeds carried out against the prisoner” (Cover, 1992, p. 225).2 As Scalia’s remarks demonstrate, however, the distinction between a sentence’s pronouncement, on the one hand, and its execution, on the other, raises disturbing questions about intention, interpretation, agency, and responsibility.

Details

Punishment, Politics and Culture
Type: Book
ISBN: 978-0-76231-072-2

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