International Journal of Punishment and Sentencing


Vol. 7, No. 4, October

The Place of Repentance in Retributive Sentencing
ABSTRACT: Repentance touches many aspects of life. It is basic to human relations. The article sets forth the normative reasons for taking repentance into account in the frame of criminal sentencing. Change that takes place in people should be recognized...
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Regional Differences in Sentencing Practices
Abstract: This study examines various sentencing practices across fifty states in order to determine whether regional differences exist across the United States. Empirical examinations of regional differences in punishment have largely been limited...
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Sexually Biased Case Law: A Biological Perspective
Introduction 'Judges are not moral or intellectual giants, prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers,' Richard Posner states in the introduction of How Judges Think (2009, p. 7). Yet all too often judges...
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Vol. 7, No. 3, July

Applying Padilla V. Kentucky to Sex Offenders: An Argument for Extending the Supreme Court's Recent Deportation Decision to Sex Offender Registration Requirements and Civil Commitment under Sexually Violent Predator Statutes
ABSTRACT: Historically, most courts have held that defense attorneys are only required to notify defendants of the direct consequences of plea bargains--incarceration, probation, and fines. In its recent decision in Padilla v. Kentucky, however, the...
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Supervising Probationers on the Information Superhighway: Towards an Understanding of Minimum Supervision Level Probationers in a Large Texas County
Abstract: Community Supervision and Corrections Departments (Probation) in Texas and around the United States have entertained the idea of "off-site" supervision of offenders who are classified as low risk. Some departments have explored the use of...
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Vol. 7, No. 2, April

The Lost Side of Apprendi: Jury Trials, Judicial Discretion, and Making the Case for Sholom Rubashkin
Introduction: The path of constitutional sentencing law is riddled with detours. In the United States Supreme Court's landmark Apprendi (1) decision, the Court created the current doctrine of constitutional sentencing. Addressing the issue of whether...
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Are All Probation Revocations Treated Equal? an Examination of Felony Probation Revocations in a Large Texas County
Abstract: In Texas, revocations make up a large percentage of the prison population. Probation departments have been examining ways to decrease this number without diminishing the safety of the community. Once viewed as a respectable sign of a tough...
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Vol. 7, No. 1, January

In Their Own Words: Capital Jurors' Reactions to Mitigation Strategies
Abstract: Despite decades of grappling by the Supreme Court over how to ensure capital defendants are afforded their Sixth Amendment right to an impartial jury, research has shown that capital jurors are predisposed to reject mitigation and sentence...
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"... One Dube Fits All?"
The foundation of criminal law is the idea that people should be punished by the State when they are to blame for conduct which brings about certain grievous wrongs. (1) Almost from day one as a law student we are told to define what the law is and...
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Separation of Powers Doctrine in Australia: De Facto Human Rights Charter
Abstract: Australia is the only western nation without a bill of rights. The High Court of Australian has interpreted the separation of judicial powers in the Commonwealth Constitution over the past decade in the manner which confers a number of rights...
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Vol. 6, No. 3, November

Who Rules the Joint Revisited: Organizational Change and the Importance of Prison Leadership
Abstract: In 1972, a black Texas prison inmate filed a lawsuit claiming systematic racial and ethnic segregation and discrimination across numerous aspects of Texas prison operation. In 1977, this lawsuit was dealt with by consent decree. As the consent...
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The Correlation between Law and Behaviour as Pillars of Human Society
Introduction Man by nature is a gregarious being both in his body and mind. In other words, he likes to live in a community. (1) This explains the hackneyed adage that no man is an island. Instead he is a victim of social inevitability as he must...
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Vol. 6, No. 2, July

Virtue Ethics and the Justification of Punishment
I. A CENTURY (OR SO) AND A TAXONOMY (1) From the turn of the twentieth century (e.g., in Hastings Rashdell's "The Ethics of Forgiveness" (2)) until the end of the nineteen fifties (e.g., in H.L.A. Hart's "Prolegomenon to the Principles of Punishment"...
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Sentencing Children to Life Imprisonment And/or to Be Detained at the President's Pleasure in Eastern and Southern Africa
Abstract: All eastern and southern African countries that retain the death penalty prohibit the imposition of that sentence on those convicted of heinous crimes such as murder when the perpetrator committed that offence when he was below the age of...
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Reconciling Sentencing Principles with Practice When Sentencing Mentally Disordered Offenders
INTRODUCTION Many criminal offenders suffer from mental illness short of insanity in the legal sense of that word. This is reflected in recent statistics indicating that 15% of men and 23% of women in Irish prisons in 2003 suffered from some form...
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Vol. 6, No. 1, April

The Banality of Punishment: Context Specificity and Justifying Punishment of Extraordinary Crimes
Abstract: The scale and brutality of the crimes committed in Rwanda and the former Yugoslavia raise particular issues for sentencing scholars. Both academic commentators and the International Tribunals have defended punishment on a number of grounds...
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Lethal Injection: Constitutional Method of Execution or Cruel and Unsual Punishment?
Introduction * From this day forward, I no longer shall tinker with the machinery of death. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated,...
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Vol. 5, No. 3, November

Criminal Injuries Compensation, Victim Assistance Programs and Restoration in Australian Sentencing Law
ABSTRACT: This article provides a critical assessment of the legislation establishing criminal injuries compensation and victim assistance schemes across the states and territories of Australia. These programs are assessed in terms of the extent to...
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The Recidivist Wants to Be Punished - Punishment as an Incentive to Reoffend
I. INTRODUCTION: THE MAIN DILEMMAS A person carries out a robbery and is sentenced to a year in prison. Shortly after having served his sentence, the same person carries out a second robbery in similar circumstances. What punishment should the court...
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Vol. 5, No. 2, July

Grassroots Drug Court Policies Have Significant Impact on Rural Blacks: Alabama's Ongoing Concern for Equal Protection under the Law
"Perhaps most troubling is that our drug law policies, under even the most casual scrutiny, reflect embarrassing racial disparities unfit for any nation, especially a democratic one." (1) INTRODUCTION In Alabama, and across the nation, there...
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A Personal Affair: Moral Obligation and the New Common Law of Sentencing
Abstract: Sentencing has a tortured history in the federal system. The Sixth Amendment, due process, and separation-of-powers problems with the current sentencing regime have been extensively documented. But this Essay deals with a different problem....
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Vol. 5, No. 1, January

Morality in Criminal Cases
Introduction Morality forms a big part of criminal law according to the judges. In Canada, Estey J said that the purposes of the criminal law included "public peace, order, security, health and morality." (1) At least two other Supreme Court decisions...
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Rehabilitating Durkheim: Social Solidarity and Rehabilitation in Eastern State Penitentiary, 1829-1850
I. INTRODUCTION Durkheim famously postulated that crime tears at the moral fabric of society and that punishment is the means by which society strengthens its solidarity: by condemning the criminal and his (1) criminal act, society reminds itself...
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Informal Reckonings Conflict Resolution in Mediation, Restorative Justice and Reparations
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Vol. 4, No. 3, October

What Distinguishes the Evil of Genocide and How Should We Respond to It?
Abstract: Despite the Genocide Convention in 1951 pledging to abolish all cruel and unfair forms of torture and death to innocent civilians for religious, national and ethnic reasons, there has been an alarming denunciation from the international rules...
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Making the Circle Stronger: An Effort to Buttress Aboriginal Use of Restorative Justice in Canada against Recent Criticisms
The reliance of the Canadian criminal justice system on adversarial procedures and incarceration is not very effective or productive when dealing with Aboriginal crime. Restorative justice is often presented as a more constructive way of dealing with...
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Vol. 4, No. 2, July

Restorative Justice: Sketching a New Legal Discourse
What needs radical reexamination is what it means to punish, what is being punished, why there is punishment, and, finally, how punishment should be carried out. What was conceived in a clear and rational way in the seventeenth century has grown dim...
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Punishment in Wonderland
I. INTRODUCTION As a general rule, and generally by design, American judicial opinions make for rather dull reading, except for those readers with a direct stake in the outcome of the case a particular opinion is deciding. In more than eight years...
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Vol. 4, No. 1, January

Deliberately Indifferent: Government Response to HIV in U.S. Prisons
At the end of 2005, 20,888 state inmates and 1592 Federal inmates were known to be infected with HIV. (1) The HIV positive inmates, a total of 22,480, accounted for 1.0% of all Federal inmates and 1.8% of state inmates, and 1.8% of the entire prison...
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The Proportionality Thesis in Australia: Application and Analysis
1 Introduction: Justification and Explanation of the Proportionality Principle In this paper we consider the main consideration that is relevant to the determination of the penalty severity. The three the main rationales that are often employed...
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Vol. 3, No. 4, December

Brown V. Sanders: The Weighing/nonweighing Framework Affecting Constitutional Error in Capital Sentencing
INTRODUCTION This comment explores United States death penalty jurisprudence through the lens of the United States Supreme Court's recent decision of Brown v. Sanders, (1) and concludes that the current sentencing system is in turmoil. The weighing/nonweighing...
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The Impact of Common Law on Judicial Decision Making
I. Introduction Studies of the judiciary seem to be most concerned with how justices make decisions (Langer 2002, Segal & Spaeth 2002, and Knight & Epstein 1996). The research has focused on explaining judicial decisions as a function of...
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Vol. 3, No. 3, October

Waiver in a Criminal Case
A person charged with a crime can waive entitlement to a great number of matters. Some of these entitlements are given by legislation. Others come from those rights which are entrenched in the common law. The prosecution can also waive some rights...
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Female Homicide in the United States
Abstract: This paper develops and tests a model of cross-sectional and temporal variation in female homicide rates using sex specific victimization data from individual States in the U.S. for the years 1980-2002. The results indicate that tremendous...
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Vol. 3, No. 2, July

The Military Commissions Act of 2006: An Analysis of the Treatment of Hearsay Evidence and Witness Confrontation
We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and...
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Toward a New Confessions Test: Replacing Voluntariness with Power
I. Introduction Miranda is broken. (1) It is broken not only because of the problems associated with the now-famous warnings established by the Supreme Court in 1966. (2) The warning is only the first part in a two-part test for the admissibility...
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The Trial on Trial (Volume One) Truth and Due Process
Page i of this excellent text includes these observations: The trial is central to the institutional framework of criminal justice. It provides the procedural link between crime and punishment, and is the forum in which both guilt/innocence and...
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Vol. 3, No. 1, January

Referral of Iranian President Mahmoud Ahmadinejad and the Member State of the Islamic Republic of Iran to the United Nations, Including Its Main Bodies, Judicial Organs, and Specialized Agencies on the Charge of Incitement to Commit Genocide and Other Charges
ON BEHALF OF THE PEOPLE OF THE STATE OF ISRAEL INTRODUCTION 1. Iranian President Mahmoud Ahmadinejad has made the destruction of Israel his avowed policy. Between his repeatedly stated intentions and exhortations to others, this matter might...
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Picking Up the Pieces of the Gordian Knot: Towards a Sensible Merger Methodology
In an apparent attempt to demonstrate that "succinct" is an art form, Justice John Flaherty of the Pennsylvania Supreme Court summed up the relevant criminal wrongdoings of Steven Keith Anderson in this way: "On October 31, 1987 Anderson shot Norma...
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Sentencing and Punishment the Quest for Justice
On occasion, it is fitting to introduce the subject matter by means of a conclusion, and this is such an occasion: accordingly, I begin by noting that this book represents a signal contribution to our understanding of both sentencing and punishment,...
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Vol. 2, No. 3, October

Strategic (and Popular) Sentencing
1 OVERVIEW OF RECOMMENDATIONS: OVERLAP BETWEEN WHAT IS POPULAR AND CORRECT This paper outlines the manner in which sentencing law and practice should be developed in Australia. The easiest policy for a sensible politician to implement is one involving...
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Opportunity Lost?: The High Court of Australia and the Sentencing of Indigenous Offenders
Indigenous overrepresentation in the Australian criminal justice system has been a longstanding concern. Notwithstanding such a presence and the high volume of cases involving Indigenous offenders, the High Court of Australia has considered the principles...
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Maconochie's Gentlemen: The Story of Norfolk Island and the Roots of Modern Prison Reform
I confess that although I have been a criminal court judge for over a decade, and a criminal defence counsel and later a prosecutor for another decade previously, I had never heard of Maconochie's Gentlemen and I had no more than an inkling of what...
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Justice for Crimes against Humanity
Justice for Crimes Against Humanity Edited by Mark Lattimer and Philippe Sands Q.C. Hart Publishing: Oxford, 2003 The goal of the editors in publishing this book was to assess a number of recent developments in international law, including...
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Vol. 2, No. 2, July

Out of the Blue: The Emergence of Indigenous Sentencing Jurisprudence in Victoria
Introduction Notwithstanding the high level of interaction between the Indigenous and non-Indigenous community since the establishment of the District of Port Phillip (1) and the subsequent State of Victoria--especially by means of the operation...
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Victim Impact Statements in Homicide Cases: Should 'Recognising the Harm Done ... to the Community' Signify a New Direction?
Abstract: Victim impact statements have played an active role in voicing the harm caused to victims in a variety of criminal cases for the past 8 years in New South Wales. However their role in determining sentence in homicide cases has been limited...
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Victim's Complicity in Criminal Law
I. Introduction In March 2001 Bernd Juergen Brandes, a 43 year-old computer engineer, applied to an advertisement on the internet which looked for volunteers to be slaughtered and eaten. The advertiser was Armin Meiwes, a 44 year-old technician....
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A Life of H.L.A. HART: The Nightmare and the Noble Dream
A LIFE OF H.L.A. HART: The Nightmare and the Noble Dream. By Nicola Lacey New York: Oxford University Press, 2004 North American jurists are quite familiar with Professor Lon Fuller's contribution to the "Hart-Fuller" debate and to his seminal work...
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Vol. 1, No. 4, January

Sado-Masochism and the Rule of Law: Brown Re-Examined
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. (1) --Jeremy Bentham INTRODUCTION Pain and pleasure...
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Extradition of the 'Bali Nine': Can and Should the Risk of Capital Punishment Facing Australians Be Relevant to Extradition Decisions?
I INTRODUCTION The power to request that a person be extradited from another country to face criminal charges in Australia lies with the Commonwealth Executive. It is a prerogative power. (1) There are currently 12 Australians facing possible death...
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Vol. 1, No. 3, October

Lessons to Be Learned from the Execution of Van Nguyen
1 Introduction The execution of 25 year old Melbourne man Van Nguyen by Singaporean authorities on 2 December 2005 for attempting to smuggle 400 grams of heroin out of Singapore was cruel. It was also futile. Yet, there are three important lessons...
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The Good, the Bad, the Ugly, and More: A Survey of Litigation Arising from the Operation of Kangaroo Courts
Abstract: Back in the day, kangaroo courts were common in American jails and prisons, and the operations of those tribunals often led to litigation in actual state and federal courts. While jailhouse kangaroo courts are now universally disfavored,...
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The Theory: The Present and the Future of Criminal Law in Australia
Abstract: The criminal law at present is a rag-bag of offences and the means of proof. Changes to legislation are usually caused by a parliament trying to plug some hole or to show the electorate how serious is crime. This is not to say that there...
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Vol. 1, No. 2, July

Criminal Law Futurology *
MICHAEL HILL REMEMBERED Yet I am here a chosen sample, To show thy grace is great and ample; I'm here a pillar o' Thy temple, Strong as a rock, A guide, a buckler, and example, To a' Thy flock (1). We do well to remember Michael Hill, for whom...
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Scientific Proof That Humans Enjoy Punishing Wrongdoers: The Implications for Punishment and Sentencing
Abstract Recent developments in brain science confirm that as a race we are in fact a punitive lot. Human beings actually derive pleasure from inflicting punishment on wrongdoers. We are wired in such a way that the part of our brain that reports...
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Vol. 1, No. 1, April

Justitia's Bandage: Blind Sentencing
Abstract: Although the public wants sentencing to reduce crime, judges and legislators make no responsible effort to select or encourage sentences that are most likely to reduce an offender's criminal behavior. We produce cruelly avoidable victimizations...
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Linkages: Mabo and the Sentencing of Indigenous Offenders
Abstract: The ground breaking decision by the High Court of Australia in Mabo v Queensland (No 2) overturned the principle of terra nullis as a legal fiction. It paved the way for a reconsideration of property law. Mabo arguably has significance beyond...
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The Sentencing Provisions of the International Criminal Court
Abstract: Approximately 57 years after the international Military Tribunal in Nuremberg was established in 1945, the Rome Statute of the International Criminal Court came into force. This heralded the first permanent and truly international criminal...
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