No description available.

Com o declínio do ideal de reabilitação, a partir principalmente de 1970, impulsionado pelo fracasso do modelo de exclusão para inclusão, muitas jurisdições ocidentais passaram a colocar a retribuição e a proporcionalidade no centro da decisão sobre a pena, com o objetivo de diminuir disparidades entre penas, ou seja, garantir que pessoas que cometem crimes de gravidade semelhante recebam penas semelhantes. Práticas que visam aumentar a uniformidade das penas em relação ao tipo penal como penas mínimas, aumentos obrigatórios de pena e obrigação de cumprimento de determinado tempo de pena antes de progredir de regime - envolvem, necessariamente, a imposição de obstáculos à individualização da pena pelo juiz e podem ocultar desigualdade maior: o tratamento semelhante de casos distintos. A pesquisa empírica desenvolvida no trabalho baseia-se na análise de casos concretos de roubo com causa de aumento (conduta responsável por mais da metade da população prisional brasileira) em que foi aplicada a pena mínima, de 5 anos e 4 meses de prisão. O estudo dos casos revelou situações concretas muito distintas entre si com a mesma pena, muitas vezes inclusive com a mesma fundamentação, o que aponta para uma padronização da decisão judicial nesses casos. A definição de pena em abstrato pelo legislador, em função da gravidade do crime, garante que pessoas condenadas pelos mesmos tipos penais recebam penas semelhantes, mas oculta inúmeras diferenças entre os casos concretos. Esta dissertação argumenta contra o uso da igualdade e da proporcionalidade princípios que têm papel fundamental para coibir o abuso do poder estatal para impedir o juiz de reduzir a pena ou de aplicar sanção alternativa à prisão, quando a pena prevista em lei não for adequada. Permitir maior individualização da pena não significa patrocinar um sistema de penas indeterminadas de prisão, mas sim atribuir a tarefa de escolha da pena a quem tem o caso diante dos olhos, sempre com critérios que guiem e controlem a decisão por motivação, até para que seja possível o desenvolvimento de um verdadeiro sistema de alternativas à prisão. / From 1970 onwards, with the decline of the rehabilitative ideal, driven in part by the failure of the social exclusion rehabilitation model, many jurisdictions turned to retribution and proportionality to answer the question of how much to punish. The intentions were noble: to reduce sentencing disparity, guarantying that offenses of similar gravity receive similarly harsh sentences. Strategies aimed at improving sentencing uniformity e.g. minimum mandatory sentences, mandatory aggravating factors and parole restrictions necessarily obstruct sentencing discretion and may conceal even greater inequality, consisting of similar treatment of unlike situated offenders. In my empirical research, I study sentencing decisions for robbery offenses (robbery convictions make up for more than half of Brazilian prison population) in which the same punishment has been decided upon (prison term of 5 years and 4 months) and, in a qualitative approach, analyze what they have in common and which differences the sentencing decision does not distinguish. I found many cases with very different concrete circumstances, with the same prison sentence and even with the same judicial reasoning, which points towards an unfair case aggregation. The definition of adequate punishment by the legislative body, based only on offense gravity, may make people convicted of similar offenses receive the same sentences, but conceals many differences between each case. I argue against the use of equality and proportionality ideals that once served exclusively for individual protection from the State to prevent the judge from reducing a sentence or from applying intermediate punishment in a given case. To allow greater individualization is different from favoring indeterminate sentencing. It means assigning the sentencing task to the person who has the case before them, always with guidelines that may control the decision through motivation, so maybe it finally becomes possible to develop a true system of alternatives to imprisonment.

Com o declínio do ideal de reabilitação, a partir principalmente de 1970, impulsionado pelo fracasso do modelo de exclusão para inclusão, muitas jurisdições ocidentais passaram a colocar a retribuição e a proporcionalidade no centro da decisão sobre a pena, com o objetivo de diminuir disparidades entre penas, ou seja, garantir que pessoas que cometem crimes de gravidade semelhante recebam penas semelhantes. Práticas que visam aumentar a uniformidade das penas em relação ao tipo penal como penas mínimas, aumentos obrigatórios de pena e obrigação de cumprimento de determinado tempo de pena antes de progredir de regime - envolvem, necessariamente, a imposição de obstáculos à individualização da pena pelo juiz e podem ocultar desigualdade maior: o tratamento semelhante de casos distintos. A pesquisa empírica desenvolvida no trabalho baseia-se na análise de casos concretos de roubo com causa de aumento (conduta responsável por mais da metade da população prisional brasileira) em que foi aplicada a pena mínima, de 5 anos e 4 meses de prisão. O estudo dos casos revelou situações concretas muito distintas entre si com a mesma pena, muitas vezes inclusive com a mesma fundamentação, o que aponta para uma padronização da decisão judicial nesses casos. A definição de pena em abstrato pelo legislador, em função da gravidade do crime, garante que pessoas condenadas pelos mesmos tipos penais recebam penas semelhantes, mas oculta inúmeras diferenças entre os casos concretos. Esta dissertação argumenta contra o uso da igualdade e da proporcionalidade princípios que têm papel fundamental para coibir o abuso do poder estatal para impedir o juiz de reduzir a pena ou de aplicar sanção alternativa à prisão, quando a pena prevista em lei não for adequada. Permitir maior individualização da pena não significa patrocinar um sistema de penas indeterminadas de prisão, mas sim atribuir a tarefa de escolha da pena a quem tem o caso diante dos olhos, sempre com critérios que guiem e controlem a decisão por motivação, até para que seja possível o desenvolvimento de um verdadeiro sistema de alternativas à prisão. / From 1970 onwards, with the decline of the rehabilitative ideal, driven in part by the failure of the social exclusion rehabilitation model, many jurisdictions turned to retribution and proportionality to answer the question of how much to punish. The intentions were noble: to reduce sentencing disparity, guarantying that offenses of similar gravity receive similarly harsh sentences. Strategies aimed at improving sentencing uniformity e.g. minimum mandatory sentences, mandatory aggravating factors and parole restrictions necessarily obstruct sentencing discretion and may conceal even greater inequality, consisting of similar treatment of unlike situated offenders. In my empirical research, I study sentencing decisions for robbery offenses (robbery convictions make up for more than half of Brazilian prison population) in which the same punishment has been decided upon (prison term of 5 years and 4 months) and, in a qualitative approach, analyze what they have in common and which differences the sentencing decision does not distinguish. I found many cases with very different concrete circumstances, with the same prison sentence and even with the same judicial reasoning, which points towards an unfair case aggregation. The definition of adequate punishment by the legislative body, based only on offense gravity, may make people convicted of similar offenses receive the same sentences, but conceals many differences between each case. I argue against the use of equality and proportionality ideals that once served exclusively for individual protection from the State to prevent the judge from reducing a sentence or from applying intermediate punishment in a given case. To allow greater individualization is different from favoring indeterminate sentencing. It means assigning the sentencing task to the person who has the case before them, always with guidelines that may control the decision through motivation, so maybe it finally becomes possible to develop a true system of alternatives to imprisonment.

No description available.

This thesis considers how judges sentence. It explores and critically analyses judicial decision making in sentencing along with judicial perceptions of, and attitudes towards, the sentencing process. Building upon a thorough review of recent scholarship on judicial decision making and sentencing, and incorporating a comparative study of domestic and Commonwealth sentencing jurisprudence, the thesis comprises the first empirical study of judicial sentencing in Scotland in a decade. The thesis reports the results of an interview-based study with 25 serving Scottish judges. In particular it investigates judicial views on the importance of judicial discretion; the pursuit of individualised justice; the aims and purposes of sentencing; the role of personal mitigation, leniency and mercy; the use of guidelines, and whether consistency in sentencing is either achievable or desirable. The empirical findings reveal that, in order to comply with the demands of justice, the majority of Scottish judges consider the process of sentencing to be an adjudicative balancing of the relevant facts in every case – a delicate art based on competence, experience and expertise which is best achieved through a process of “instinctive synthesis”. This means that sentencing must remain an essentially discretionary process structured by appellate guidance. Through an integration of the concept of equity as particularised justice, the Aristotelian concept of phronesis (or “practical wisdom”) and appellate courts’ focus on the instinctive synthesis, the thesis argues that judicial sentencing methodology – to the extent that it relies on intuition and experience – is best viewed in terms of a phronetic synthesis of the relevant facts and circumstances of the individual case. The sentencing task is thus conceptualised as a form of case-orientated, concrete and intuitive decision making that seeks individualisation through judicial recognition of the profoundly contextualised nature of the process.

Crime severity has been found to be one of the best predictors of sentencing decisions (Darley, Carlsmith, & Robinson, 2000). There is however a dearth of research examining the effect of offender and victim ethnicity on perceptions of crime seriousness, and the few studies that do exist have produced equivocal findings. Some studies find an effect of victim ethnicity (e.g., Cohen-Raz, Bozna, & Glicksohn, 1997), some studies find no significant effects of offender nor victim ethnicity (e.g., Benjamin, 1989), and some studies only find effects under certain conditions, such as when the crime is of low seriousness (e.g., Herzog, 2003a). The present study was conducted in an attempt to clarify these convoluted findings by using measures of modern and old-fashioned prejudice. Whereas old-fashioned prejudice refers to the belief that an out group is in someway inferior, modern prejudice refers to the view that a minority group no longer faces discrimination or that the minority group is being too pushy when advocating for equal rights (McConahay, 1983). Using a sample of undergraduate psychology students, it was found that when the crime was perceived as being quite severe, harsher punishments were recommended for the offender. Further to this, participants scoring high in modern prejudice perceived crimes to be more severe and recommended longer sentences in certain offender-victim ethnicity conditions than participants scoring low in modern prejudice. However, contrary to the hypotheses, no significant differences were found between high and low old-fashioned prejudice participants. Perceived offender responsibility and stability were also found to affect perceptions of crime severity and recommended punishment. When an offence was described as being stable (i.e., the offender had committed similar crimes in the past), participants rated the crime as being more severe and recommended a harsher punishment than when it was the offenders first offence. Additionally, when participants attributed responsibility for the crime to the offender, crime severity ratings were higher and recommended punishments were longer. The implications of these results are discussed and recommendations for future research are put forward.

Crime severity has been found to be one of the best predictors of sentencing decisions (Darley, Carlsmith, & Robinson, 2000). There is however a dearth of research examining the effect of offender and victim ethnicity on perceptions of crime seriousness, and the few studies that do exist have produced equivocal findings. Some studies find an effect of victim ethnicity (e.g., Cohen-Raz, Bozna, & Glicksohn, 1997), some studies find no significant effects of offender nor victim ethnicity (e.g., Benjamin, 1989), and some studies only find effects under certain conditions, such as when the crime is of low seriousness (e.g., Herzog, 2003a). The present study was conducted in an attempt to clarify these convoluted findings by using measures of modern and old-fashioned prejudice. Whereas old-fashioned prejudice refers to the belief that an out group is in someway inferior, modern prejudice refers to the view that a minority group no longer faces discrimination or that the minority group is being too pushy when advocating for equal rights (McConahay, 1983). Using a sample of undergraduate psychology students, it was found that when the crime was perceived as being quite severe, harsher punishments were recommended for the offender. Further to this, participants scoring high in modern prejudice perceived crimes to be more severe and recommended longer sentences in certain offender-victim ethnicity conditions than participants scoring low in modern prejudice. However, contrary to the hypotheses, no significant differences were found between high and low old-fashioned prejudice participants. Perceived offender responsibility and stability were also found to affect perceptions of crime severity and recommended punishment. When an offence was described as being stable (i.e., the offender had committed similar crimes in the past), participants rated the crime as being more severe and recommended a harsher punishment than when it was the offenders first offence. Additionally, when participants attributed responsibility for the crime to the offender, crime severity ratings were higher and recommended punishments were longer. The implications of these results are discussed and recommendations for future research are put forward.

The debate surrounding the impact of gender on sentence severity is ongoing. The majority of the research contributing to this debate has been based in the United States and has focused primarily on the effect that offender characteristics have on sentencing outcomes. This study utilizes 28 years of homicide data from a large Canadian urban jurisdiction to examine the effect that the gender of both the victim and offender has on determining sentence length. Results show that an offender’s gender alone has no effect on sentence length, but that offenders who kill female victims receive longer sentences and male offenders who kill female offenders receive the longest sentences. A deep-sample exploratory qualitative analysis further demonstrates that other gendered factors such as prior victimization and familial roles may have an impact on sentencing decisions in Canada. Future research directions from this analysis are discussed.

China has long been sceptical on mitigating sentences based on the offender’s good character, while good character mitigation is widely accepted in Canada. This study was to examine the justification of good character mitigation in Canada so that China can better face the future choice in sentencing: whether to consider good character a mitigating factor. Through examining the use of good character in Canadian sentencing practice, the justification of good character mitigation in Canada has been questioned. A three-part argument has been put forward to support the removal of good character as a mitigating factor in Canada: first, the workability of the very concept of “good character” is low; second, theoretical basis for mitigating sentences on good character is problematic; third, the present practice contributes to a form of status-based discrimination. This study shows that the justification of good character mitigation is not as strong as we have expected it to be. Even in Canada, a country which has good character mitigation with a long history, the consideration of good character as a mitigating factor needs further discussion. The adoption of good character mitigation in China should be more cautious. / Thesis (Master, Law) -- Queen's University, 2007-12-17 16:48:45.471

In spite of legislative, judicial, and governmental initiatives, Indigenous youth continue to face over-representation in the Canadian criminal justice system. While the Government of Canada appears to be closer than ever to accepting wide scale self-governance of Indigenous peoples, there are a number of obstacles within the proposed solutions that will continue to prevent Indigenous youth from achieving sentencing equity. This thesis asks the question, to what extent can the Youth Criminal Justice Act and supporting regulations be reformed in order to effectively “rehabilitate and reintegrate” Indigenous youth and serve the Government of Canada mandate of “reconciliation;” or, considering the colonialist underpinning of Canadian legislation, to what extent do Indigenous youth require alternative solutions to establish equitable justice? In answering this question, this thesis engages the theoretical framework of Critical Race Theory to examine existing legislation, jurisprudence, programs, and institutions geared towards creating sentencing equity for Indigenous youth in Canada, ultimately proposing recommendations for a more fair criminal justice system.