Putting the offender back into sentencing: An empirical study of the public’s understanding of personal mitigation

Abstract

In recent times judicial sentencing has become harsher. This is in response, at least in part, to the public’s apparent view of mitigation personal to the offender as of little importance, particularly in serious cases. Recent research on factors seen by the public as mitigating is consistent with this. But perhaps humanity in sentencing would emerge if people were given detailed information about cases and felt they were dealing with a real person, and that their responses were important? The present study tested this. Judges presented four actual cases, involving six offenders, to over 470 participants in 32 groups around Victoria, Australia. The participants responded by discussing the judges’ sentences in these groups (after individually imposing sentences for these offenders). In fact, the participants found numerous matters involving culpability, rehabilitation and mercy to be mitigating. Thus, it would seem, calls from among the public for tougher sentencing and the judiciary’s acquiescence in this are not well founded. Moreover, for research on personal mitigation, how the offender is presented to participants appears to matter.

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