CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 15, 2018

Bagaric & Isham on Publicity and Condemnation in Sentencing

Mirko Bagaric and Peter Isham (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School and Northwestern University, School of Law, Students) have posted A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders (Florida State University Law Review, Vol. 46, 2019) on SSRN. Here is the abstract:
The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience. There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending. Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify. Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders. It can engender feelings of shame, embarrassment and humiliation. At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law. There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions. Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences. By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.
On other occasions, courts have held public condemnation is irrelevant to sentencing. The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law. In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions. We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention. The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders. Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States. We also consider the position in Australia, where the issue has been considered at some length.

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