The Fallacy of Punishing Offenders for the Deeds of Others: An Argument for Abolishing Offence Prevalence as a Sentencing Aggravating Consideration
Mirko Bargaric & Theo Alexander
Abstract
Sentencing outcomes are often marked by a considerable degree of unpredictability. A key reason for this is the large number of aggravating and mitigating considerations, some of which have unstable questionable foundation. This article argues that one well-established aggravating factor — offence prevalence — should be abolished. Pragmatically, the courts have not established workable criteria or a process for establishing whether an offence is prevalent. From a normative perspective, increasing the penalty for prevalent offences is unsound because defendants should be punished for their acts, not those of other offenders. Further, on close analysis, all of the rationales (in the form of general deterrence, denunciation and specific deterrence) invoked to justify offence prevalence do not do so. Abolishing one sentencing variable will not make sentencing a significantly more coherent or predictable discipline, but the methodology applied in this article can be used to assess the viability of other sentencing considerations.
1 citation
Evidence weight
Balanced mode · F 0.40 / M 0.15 / V 0.05 / R 0.40
| F · citation impact | 0.00 × 0.4 = 0.00 |
| M · momentum | 0.80 × 0.15 = 0.12 |
| V · venue signal | 0.50 × 0.05 = 0.03 |
| R · text relevance † | 0.50 × 0.4 = 0.20 |
† Text relevance is estimated at 0.50 on the detail page — for your query’s actual relevance score, open this paper from a search result.