2 research outputs found
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Punishment as an Inclusionary Practice: Sentencing in a Liberal Constitutional State
This chapter puts forward a conceptualisation of the sentencing judgment as setting the terms of future relationship with an offender. By drawing on the writings of Johann Gottlieb Fichte, the author develops a reintegrative conception of state punishment and argues that a constitutionally legitimate proportionality assessment must be âbifocalâ â focused not just on the seriousness of the offending behaviour but also on the question what undergoing the punishment will mean for and do to the offender. The chapter is included in an edited collection on Criminal Law and the Authority of the State (edited by Antje du Bois-Pedain, Magnus UlvĂ€ng and Petter Asp; Hart/Bloomsbury, 2017)
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In Defence of Substantial Sentencing Discretion
This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed âsubstantialâ sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds