CrimProf Blog

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

Monday, June 1, 2020

Bagaric on Delay as Mitigating Factor in Sentencing

Mirko Bagaric (Swinburne Law School) has posted An Argument for Abolishing Delay as a Mitigating Factor in Sentencing (Adelaide Law Review, Vol. 40, No. 2, 2019) on SSRN. Here is the abstract:
Delay is a common mitigating factor in sentencing and can sometimes result in a significant penalty reduction. This is despite the fact that delay does not impact on the seriousness of the offence or the culpability of the offender. This article examines the validity of the rationales which underpin reducing sentencing severity on the basis of delay. It emerges that there is a dearth of critical analysis on this issue. This article attempts to at least partially fill a gap in the literature. There are two different rationales which have been advanced to justify delay reducing penalty severity. The first is anxiety stemming from the waiting associated with a criminal matter being finalised. The second is rehabilitation that the offender may have undergone prior to sentencing. An examination of these rationales establishes that: (i) the anxiety rationale is based on speculative assumptions and reasoning and (ii) the rehabilitation limb cannot justify delay as a sentencing factor given that rehabilitation is a stand-alone, independent, mitigating factor. Hence, it is argued that (subject to one relatively uncommon exception) delay should be abolished as a mitigating factor. This would enhance the transparency and integrity of the sentencing system without undermining any of its appropriate objectives.

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