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Defining the Proper Role of "Offender Characteristics" in Sentencing Decisions: A Critical Race Theory Perspective
American Criminal Law Review ( IF 3.455 ) Pub Date : 2019-03-01
Lisa M. Saccomano

In 2016, the news media in the United States widely reported the case of Brock Turner, a young white college athlete from Stanford who was convicted of sexual assault but spared the mandatory term of imprisonment. The American public was outraged at the leniency of the sentence imposed. A campaign was launched to remove from the bench the judge who rendered the sentence, and commentators accused him of racial and gender bias. However, this case was hardly an isolated incident of apparent privilege in criminal justice. In this Article, I argue that the problem resides primarily in the tradition of the law, not the fairmindedness of the judge. I specifically argue that the way in which courts weigh offender characteristic factors in sentencing is unfair and unjust. That court practice emerged in the late nineteenth century with a call to punish offenders according to their individual character. During that historical period, the word “character” was commonly understood to refer to inherent traits that were often associated with race. The assertion that non-white people had inferior character was cited as justification for their social oppression. The law about offender characteristic factors developed in accordance with that understanding of what constitutes good character. Thus, good character was assessed largely in terms of intrinsic (racial) superiority and material success. I argue that white cultural values are deeply embedded in the practice of weighing of-fender characteristic factors at sentencing, such that judges often cite the incidents of privilege in mitigation, e.g., educational attainment and employment status. Similarly, judges often cite the incidents of disadvantage in aggravation. I reject that logic under both retributive and utilitarian perspectives, arguing that fair sentencing requires dismantling the logic of privilege in sentencing.

中文翻译:

定义“罪犯特征”在量刑决策中的适当作用:批判种族理论视角

2016年,美国新闻媒体广泛报道了来自斯坦福大学的年轻白人大学运动员布洛克·特纳(Brock Turner)的案件,他因性侵犯罪名成立,但没有被强制判处监禁。美国公众对所判刑罚的宽大感到愤怒。发起了一场运动,将作出判决的法官从法官席上撤下,评论员指责他存在种族和性别偏见。然而,这起案件并不是刑事司法中明显特权的孤立事件。在本文中,我认为问题主要在于法律传统,而不是法官的公正性。我特别指出,法院在量刑中权衡罪犯特征因素的方式是不公平和不公正的。这种法庭惯例出现在 19 世纪后期,呼吁根据罪犯的个性来惩罚他们。在那个历史时期,“性格”一词通常被理解为指通常与种族相关的固有特征。非白人品格低劣的断言被引用为他们受到社会压迫的理由。关于罪犯特征因素的法律是根据对什么构成良好品格的理解而制定的。因此,良好的品格主要是根据内在(种族)优势和物质成功来评估的。我认为,白人文化价值观深深植根于在量刑时权衡犯罪者特征因素的实践中,因此法官经常在缓解中引用特权事件,例如,教育程度和就业状况。同样,法官经常引用不利事件加重处罚。我从报复性和功利主义的角度拒绝这种逻辑,认为公平的量刑需要拆除量刑中的特权逻辑。
更新日期:2019-03-01
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