Remorse can be a powerful source of mitigation at sentencing. However, there is a lack of formal justification for this practice and a paucity of theoretical literature engaging with this issue. Addressing this gap, this thesis offers a comprehensive justification for why an offender’s remorse should mitigate the punishment he receives. It begins by discussing the emotion of remorse – its nature and value. With reference to broadly-retributive theories of punishment, it then considers various arguments that could be offered to justify the mitigating effect of remorse on the offender’s sentence. It rejects two arguments: either remorse constitutes some of the offender’s deserved punishment or remorse reduces the seriousness of the offence. Instead, it develops a justification inspired by philosophical work distinguishing blameworthiness and blaming. The thesis argues that, in the context of sentencing, a broadly-conceived dialogical model of censure is the most legitimate. Remorse, as the offender’s ideal input into the dialogue about the offence, modifies the subsequent censure required. If censure seeks a response, and this response is already forthcoming, to nonetheless continue to seek this response as if it were absent devalues the censure. Von Hirsch and Ashworth’s assertions that censure appeals to the offender as a rational moral agent, and their adherence to certain quasiretributive values, are shown to provide further support for these arguments. If the deserved censure is mitigated, then so is the corresponding punishment communicating this censure. The thesis next explores how this justification for mitigation compares with ‘mercy’ justifications, arguing that the justification offered in this thesis operates more internally to deserved censure, and is more principled, so is preferable on these grounds. In conclusion, the thesis considers the implications of its arguments for sentencing practice and whether it is a concern that they are valid only within ‘censure’ theories of punishment.

Aboriginal peoples are over-represented in many adverse demographics. Most striking is their presence in the justice system. Aboriginal offenders experience the highest levels of incarceration, and later recidivism. Sentencing circles are an indigenized alternate approach to sentencing that aim to improve their justice experience. Most studies conducted on the efficacy of circle sentencing have focused on its capacity to reduce crime. The findings of such research conclude that circle sentencing is ineffective at achieving such outcomes. I propose that these are the wrong outcomes to analyze and in turn seek to research new evaluative criteria for assessing circle sentencing’s effectiveness, by focusing on its restorative capacity instead of its reductive ability alone. The legitimacy of these measures is examined by interviewing individuals from different levels of restoration and comparing findings to existing scholarship. Semi-structured interviews are used to investigate the efficacy of Mi’kmaq circle sentencing in Millbrook, Nova Scotia.

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Mitigating evidence is evidence that is presented during the sentencing phase of a trial and is meant to argue for leniency in sentencing. A new form of psycho-legal professional, called a mitigation specialist, is being relied upon more often to assemble the diverse array of psychosocial factors into coherent arguments for less severe sentences. Unfortunately, there is a lack of empirical evidence upon which such professionals can base their work. This is of particular concern in the context of sex offenses—where strong attitudes may overwhelm legal instruction. In collaboration with the Office of the Pima County Public Defender, the current investigation utilized 209 cases; half involving sex offenses, half involving violent non-sexual offenses, and half utilizing professional mitigation, half not utilizing professional mitigation, to better elucidate the effects of professional mitigation reports on sentences in cases involving sexual and violent nonsexual crime. Results revealed that the effectiveness of mitigation reports was heavily moderated by case type. While mitigating evidence was effective in reducing sentence length for violent nonsexual offenses, it had the opposite effect in the cases involving sex offenses. Psychological reports, however were effective in reducing sentence lengths for cases involving sex offenses. Individual mitigating factors and lexical characteristics (examined through Linguistic Inquiry and Word Count software) did not show any consistent relationship with sentence length, suggesting that the effect of the mitigation reports as a whole cannot necessarily be discerned from its parts. Limitations, future directions, and possible implications for the practice of mitigation specialists are explored.

This thesis argues that the honour of the Crown and the reconciliation agenda are engaged in the sentencing of Aboriginal offenders, given grossly disproportionate Aboriginal incarceration rates and their underlying causes, including socio-economic problems, community breakdown and cultural dislocation that arise at least partly from the history of Crown-Aboriginal interaction. Such an interpretation facilitates a new relationship between the Crown and Aboriginal peoples and will contribute to the rehabilitation of the rule of law. I address not only the underlying legal questions pertaining to the engagement of the honour of the Crown and the reconciliation agenda in sentencing Aboriginal offenders, but also interrogatories relating to the role of morality in the law and the rule of law for Aboriginal peoples in the sentencing context. Fundamentally, the honour of the Crown and reconciliation principles are interpreted and applied such that the sentencing of Aboriginal offenders can accommodate and attempt to ameliorate colonialist history. This distinctive history produces a legal requirement of reconciliation and honour-based governance if the rule of law is to be a reality for Aboriginal peoples in Canada. Section 718.2(e) of the Criminal Code and Gladue analysis provide a vehicle for the courts to inject the honour of the Crown into the sentencing of Aboriginal offenders, albeit at one remove. However, the honour of the Crown requires a vigorous Gladue type analysis by judges sentencing Aboriginal offenders regardless of the existence of section 718.2(e). Canada must be prepared to accept responsibility and directly address some of the fallout in the criminal justice system from the history of Crown / Aboriginal relations. The honour of the Crown requires a different sentencing approach for Aboriginal offenders independent of section 718.2(e) and reconciliation is an interpretive normative principle underlying the sentencing of Aboriginal offenders, shaping the honour of the Crown and infusing the rule of law for Aboriginal peoples. Aboriginal offender rehabilitation needs to go hand in hand with the rehabiltation of the rule of law for Aboriginal peoples as a pivotal component of reconciliation. / Thesis (Master, Law) -- Queen's University, 2012-04-23 18:41:36.57

abstract: Gender disparity in sentencing outcomes has a long tradition in sentencing literature, with a substantial body of evidence indicating that women offenders are treated with greater leniency over male counterparts. The prior literature on gender and sentencing, however, has ignored broader social contexts within which judicial decision-making occurs. This dissertation attempts to address this limitation by dissecting the nature of gender disparity through ecological lenses. Using federal sentencing data for FY 2001 through 2010 and other complementary data sets, this dissertation, divided into two major sub-studies, has examined the roles of two social contextual variables, such as religioius and political conservatism, in producing gender differentials in sentencing outcomes. / Dissertation/Thesis / Doctoral Dissertation Criminology and Criminal Justice 2015

abstract: The purpose of this preliminary study is to determine if sentencing disparities exist between male and female teachers who have been convicted of sexual misconduct with a student in Maricopa County, Arizona over a ten-year period. The hypothesis is that male teachers convicted of sexual misconduct with a student will receive harsher punishment than their female counterparts. In addition, this research will analyze the sentencing decisions of Arizona judges and prosecutors through plea-bargaining when compared with the presumptive sentence set by the Arizona Legislature. Issues that will be addressed include: a brief review of gender disparities in sentencing, sex offender sentencing, Arizona's rules of criminal procedure, and a review of the Arizona Revised Statutes pertaining to sexual crimes as well as the Arizona Supreme Court sentencing guidelines. The data set consists of fifteen different Maricopa County teachers who committed a sexual offense against a student and were convicted of that offense from February 2000 through September 2009. According to the results of this study, male teachers do receive harsher penalties than their female counterparts within Maricopa County. / Dissertation/Thesis / M.S. Criminology and Criminal Justice 2012

Since the renowned terrorist attacks of September 11th, 2001, exclusionary narratives or “othering” have proliferated in the securitized West. Prominently associated with media campaigns, popular culture, or political debates, exclusionary discourses operating within the Canadian judiciary have been largely overlooked. Inspired by the work of Giorgio Agamben and Richard Ericson, this study is a critical discourse analysis of sentencing decisions within five terrorism cases. Findings suggest that “othering” operates in these decisions through seven discursive mechanisms. Those mechanisms construct the offenders as Muslim non-conforming foreign “others” threatening the Canadian nation, and worthy of exclusion. As such, the offenders are seen as deserving of punitive incarceration by the severest extent of the law. The courts also justify this punishment by invoking political imperatives namely the need for the State to preserve its alliance with other nations engaged in the “War on Terrorism” and the necessity to counter the “discontent with the West”. Although limited by legal safeguards, the exceptional state power at play in the post 9/11 era is not without effect on the wider population of Muslim in Canada and abroad.

This study calls into question the use of the total incarceration response variable incorporated into sentencing studies over the past 30 years. Specifically, using data from the Pennsylvania Commission on Sentencing (PCS), it argues - and reveals - that prison and jail represent two distinct institutions, and that the judge's decision on disposition should take that factor into account. It recommends that researchers should therefore reconsider use of the total incarceration variable, which combines prison and jail into a single response category.

In the Canadian criminal justice system, there is a procedure which provides additional protections to Indigenous offenders during sentencing and its related events. This procedure is commonly referred to as the Gladue process. This thesis defends the plausibility of extending Gladue-like procedures to non-Indigenous offenders on the grounds that failing to do so would be a failure of consistency of the law. The law must be consistent in the sense that it must treat like cases alike. It will be argued in this thesis that there are other individuals and groups who may be similarly deserving of additional protections during sentencing because of their significant circumstances of vulnerability. This includes black individuals, LGBTQIA+, and mentally ill persons, but this is by no means an exhaustive list. This thesis does not aim to diminish the unique experience of Indigenous persons, but rather, it suggests that extending Gladue-like processes to particular non-Indigenous persons and groups may be required based on consistency of the law and attention to intersectionality. It is my hope that this thesis brings about greater awareness to the sentencing procedures pertaining to both Indigenous and non-Indigenous offenders alike, and that it may spark discussion on the subject of extending additional legal protections to vulnerable persons. This thesis relies heavily on the hybrid theory of punishment, as presented by H.L.A. Hart, which combines both utilitarian and retributivist elements in justifying the act of punishment. Hart’s theory aligns with the Canadian legislation on sentencing and provides a convincing justification for punishment while allowing the inclusion of restorative punishment practices for vulnerable persons. It will be argued that extending restorative practices to non-Indigenous offenders is, in some cases, plausible, and at times, necessary. / Thesis / Master of Arts (MA) / Within Canadian legislation Indigenous offenders are provided an additional procedure during sentencing and its related events. This system is commonly known as the Gladue process. Gladue provides a good model for how the sentencing of vulnerable individuals and groups should be handled. However, this process or something similar to it is not provided to other offenders who may also experience vulnerability or should be comparably deserving of additional protections or mitigating factors during sentencing. This thesis argues for the plausibility of extending Gladue-like procedures to other, similarly situated, non-Indigenous offenders based on arguments for consistency of the law and respect for intersectionality. The law must treat like cases alike, and in doing so, must pay particular attention to the intersections between layers of vulnerability. The main contribution of this thesis is to make suggestions for change in Canada’s sentencing procedures of vulnerable individuals and groups.