Monday, October 7, 2019
Gabrielle Wolf and Mirko Bagaric (Deakin University, Geelong, Australia - Deakin Law School and Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School) have posted Nice or Nasty? Reasons to Abolish Character as a Consideration in Australian Sentencing Hearings and Professionals’ Disciplinary Proceedings ((2018) 44(3) Monash University Law Review 567) on SSRN. Here is the abstract:
An offender’s character is a consideration that often influences the outcomes of Australian sentencing hearings; good character is generally a mitigating consideration, while bad character can increase the severity of the penalty. Character can also play a central role in lawyers’ and health practitioners’ disciplinary proceedings and lead to determinations that restrict the practise of their professions. In this article, we argue that it is unfair and unnecessary for purported evaluations of the character of the subject of a sentencing or disciplinary hearing to influence decisions made in those matters about penalties or determinations respectively. The concept of character is vague and incoherent, and lacks any settled definition or empirical foundation. Consequently, judicial and tribunal decisions that are based on assessments of individuals’ character and impinge on their legal rights and interests may be unjust and violate the rule of law. Further, it is sufficient for decision-makers to evaluate the crime or misconduct of the subjects of sentencing and disciplinary hearings, without referring to their character, to reach decisions that achieve the appropriate objectives of those proceedings and, in particular, the protection of the community. We therefore propose that the law be reformed to abolish character as a consideration in sentencing hearings and professionals’ disciplinary proceedings.