International and Comparative Sentencing

Law and Justice Around the WorldCRIM 405.003

Prof. Andrew Novak

Agenda

Definitions, purposes, and rationale of criminal sentencing

Brief notes about sentencing in our model countries

Opening to discussion on the global death penalty and workshop

Definitions

Mandatory sentencing: Sentence prescribed in law without discretion for sentencing authority

Discretionary sentencing: Sentencing authority can tailor sentence to circumstances of crime or offender› This difference is a spectrum; discretion can be

limited or guided by statute (mandatory minimums, etc.)

› Weigh competing goals of sentencing uniformity and consistency and the risk of overpunishment

Sentencing aims

Retribution› Punish offenders in proportion to their offense (“just

deserts,” Old English: “that which is deserved”) Deterrence

› One less likely to commit crime if one saw harshness of punishment

Isolation› Premise that society must be protected from

dangerous and violent offenders Rehabilitation

› Goal of eventually reintegrating offender into society; divert offender from traditional punishment

Sentencing aims (Part 2)

Every society attempts to reconcile these aims differently, as they are culturally and historically contingent› For instance: Japan focuses heavily on

rehabilitation, while Saudi Arabia focuses heavily on retribution

Model countries

England› Judicial sentencing discretion: About a century old.

Consider circumstances of criminal and offense and tailor punishment

› Increasingly committed to rehabilitation as an aim of criminal sentencing since 1970s on the theory that it is a cost savings for society

France› Délits (minor violations), contraventions

(misdemeanors), felonies: three levels of offenses, each with different sentencing aims

› Move away from imprisonment (too costly) toward alternative sentencing schemes

Model countries (Part 2) China

› Traditional tension between retribution and rehabilitation (Confucian v. Legalist views)

› Emphasis on administrative punishments for lesser violations, to educate population as to what is legal and illegal

› Use of forced labor as sanction› 90% of the world’s executions

Japan› Main concern: How will a criminal punishment benefit

society?› Procurators have very wide discretion in choosing a sanction

or not prosecuting at all› Emphasis on rehabilitation; close-knit society ensures that

social isolation, and not corporal punishment, is most effective

Model countries (Part 3)

Saudi Arabia› One of the most retributivist legal systems

in the world› Resisted demands for reform; belief that

Islamic law is fundamentally different from Western law

› In general: Perpetrator can be harmed in same manner and to same degree as victim, unless pardoned or forgiven by victim

Introduction to the Global Death Penalty

What regional patterns appear from the preceding map?

Why do you think these countries still use the death penalty? Is it for the same reasons?

Is there a correlation between wealth/economic development and death penalty retention?