Denunciation, Aggravating and Mitigating Factors - Essay Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Title : Tutor : xxxxxxxxxxx Course : xxxxxxxxxxx @2010 Denunciation Denunciation refers to a situation where members of the public make use of public condemnation as a way of moral education. It takes the view of the public as characterised value of consensus. The government on its part represents and articulates the generally held values. An individual who is found guilty of a given crime is denounced; this means that the person is subjected to humiliation and public criticism. I agree with the fact that denunciation is the most important function of punishment and that all the purposes are subordinate to this particular function. The practice brings about dual function of eliminating public fury away from vigilante justice, whereas systematically stigmatizing the person who has been condemned in order to prevent the person from getting involved in a given criminal undertaking in future. This way, the punishment is perceived as a means which provides community a sense of being morally upright, making efforts to try conforming to its moral right in order to have a justice structure that exacts punishment on members of the society who do not behave in accordance with society norms (Spohn 2007). Denunciation is a hybrid of both Unitarianism and retribution as forms of punishment. It is the utilitarian since the idea of being publicly denounced is used as deterrent. Still, denunciation is similar to retributive since it supports the idea that the offenders are supposed to be punished. This is not the best form of punishment since it has the potential of eliciting aggressiveness or other negative emotional side effects. It can also lead the person being denounced to escape or develop avoidance behaviours because of the humiliation the person goes through during the entire denouncing period. Moreover, it can also lead to negative effects to the societal members who are observing the person being humiliated to develop such traits in future and make use similar ways of punishing in future. Specifically, if the children are present during denunciation, their observation skills have a big role during the development of such children. This is because if they observe aggressive behaviour during denunciation, they are likely to take part in such aggressive behaviour themselves (David & Ronald 2002). Unlike denunciation, forms of punishments like utilitarian are consequentiality, this means that such forms of punishment acknowledge that the punishment has effects to both the offender and the society as well and as a result it has the total good being produced by the punishment just in case the punishment exceeds the total evil. This means that punishments should be limited. The ultimate outcome of the punishment should be to prevent the offender from committing such a crime in future. On the other hand, Denunciation does not recognise the ultimate consequences of the punishment. This is because the offender gets public condemnation without considering the negative results which could include everlasting condemnation and stigmatization within the society (David & Ronald 2002). A positive punishment should be able to consider both negatives and positives of a punishment. A good example of this is utilitarian which observes consequentialism of a punishment. For instance, a prisoner who is sick can be released from the prison. In this case, if the death of prisoner is obvious, the prisoner can be released and hence the community is not served by continued imprisonment since he is no longer in a position to commit a crime. Moreover, denunciation does not take away the offender from the society. The offender still remains within the society and therefore has the probability of committing the same crime while within the society (Petersen 2003). However, the positive side of denunciation is that this form of punishment specifies punishment for criminal conduct is supposed to designed in such a way that future criminal conduct are prevent. In this case, deterrence is operated on both specific and a general level. General deterrence means that the punishment is supposed to prevent other individuals from committing similar criminal acts. In this case the punishment would serve as an example to the entire community and it therefore cautions others that criminal behaviour will be punished. Specific deterrence is also present within denunciation. This means that the punishment is supposed to prevent the same individual from committing crimes. Specific deterrence functions in that denouncing the person publicly is designed to be so unpleasant and that it will discourage such an offender from making repeating his or her criminal behaviour (Petersen 2003). Denunciation aims at protecting both the offender and the society as well. This means that the legal rights of the wrongdoer and the society are protected. The society depicts its respect for the free will of the offender by the way of punishment. In the same manner, the punishment indicates respect for the offender since it gives the offender an opportunity to pay the debt to the society and as a result go back to the society, theoretically without any guilt or stigma. Therefore, denunciation gives the offender a chance to co-exist with other society members after the denouncing process, whereby after the entire humiliating denunciation the offender is accepted back to the community. This therefore not only warns the offender of repeating the mistake again but also rehabilitates the offender since he/she would not like to go through a similar incidence again (Petersen 2003). Aggravating and mitigating factors Both aggravating and mitigating factors should be included in the sentencing act since sentencing decisions specifically include the balancing of both aggravating and mitigating factors as they are so as to personalise the sentence according to the offender and the conditions of the offences. Aggravating factors consist of any relevant situations, which have supportive evidence which is presented over the trial, which makes the harshest penalty suitable, within the judgement of the jurors. On the other hand, mitigating factors refers to any evidence that is presented about the defendant’s character or the situation of the crime, which would make a juror to vote for a lesser sentence. In a nutshell, aggravating factors are the factors that can increase the sentence whereas mitigating factors are the factors that may decrease the sentence. Basically, courts have been left a wide discretion as to how to tackle both mitigating and aggravating factors. As a result, including these factors within the sentencing Act will ease up things for the courts. A good question is the level to which these factors should be associated or restricted, to the rationales chosen as the base of the sentence. For instance, if the main aim of sentencing was only deserts, then elements like remorse or contrition on the offenders’ part can be perceived as applicable considerations if they are considered in the reduction of the sentence since they illustrate the offender behaved in that manner out of character or a mistake was committed. Such reasons would be reasonable if rehabilitation was the objective. According to Council of Europe 1993, the making of both aggravating and mitigating factors to be consistent with the declared logics of sentencing was found to improve and develop consistency of approach. However, there has suggestions that linking of the aggravating and mitigating factors only to the key logics would be very astringent more so in regard to branch of the law closely connected with social policy and very politically sensitive as sentencing. This means that whereas the central aim of aggravating and mitigating factors is to link the key logics, some additional factors should also be recognised. Having recognised mitigating and aggravating factors as vital factors during the sentencing, it is therefore reasonable to include them within sentencing Act. This will not only bring clarity to the courts but will also clearly separate these factors from the other additional factors. When making a decision regarding a defendant who has been judged guilty, juries are often requested to weigh the aggravating as well as mitigating conditions of the case. Weighing of aggravating as well as mitigating factors is mostly utilized in situations like, penalty phase of murder cases, when the judge is making a decision regarding life or death of the defendant, but still similar principle are applicable to numerous varying cases, for instance driving under the influence of drugs or alcohol (Spohn 2007). The question is if aggravating and mitigating factors should be included within statue or through other legal guidance or the courts should be left to decide how the case will be carried out. For instance, United Kingdom Criminal Justice Act 1991, calls for courts to take into consideration both aggravating and mitigating factors connecting to the graveness of the offence, but gives the courts a broad discretion as to whether to take into consideration of “any such issues as, within the opinion of the court, are applicable within mitigation of sentence. These issues can consist of a guilty plea, help to the police officers to convict others or elements of the offender could make the usual sentence abnormally difficult on the said offender (Geraldine, Jodie, & Nigel, 2010). In several judicial systems, the impact of both mitigating and aggravating factors on the entire sentence as well as the weighing of aggravating factors against mitigating factors are decided on a case through case basis and this is dependent on the combination of situations as well as the nature of the offence. With the possibly big number and varying combinations of factors, this can be the cause of disparity. Nevertheless, the difficulties of the factors together with their combinations suggest the complexity of rule making. The broader question is how far can the factors be prescribed by using the regulations or guiding principles and how far it can be determined through discretion. Obviously, if the factors are included within the sentencing Act, this will be beneficial in consistency during case approach (Geraldine, Jodie, & Nigel, 2010). Inclusion of the mitigating and aggravating factors in the sentencing Act will be of great significance since sentencing guidance should be precise as to what should be regarded as mitigating and aggravating factors and how can be applicable consistently during sentencing. Therefore, the following matters should be included in the sentencing Act to facilitate efficient sentencing: The level at which the characteristics of the offender, collateral outcomes as well as post-offence conduct are supposed to be incorporated as aggravating or mitigating factors. The level at which both aggravating and mitigating factors are supposed to be connected or restricted to the declared means of sentencing. The level at which the factors may or are supposed to be specified within legislation or other sentencing instructions. The level at which the factors there is supposed to be legislative or other principles that are a law of guidance regarding the manner in which factors are supposed to be utilized and if there are required reasons when these factors are used (Geraldine, Jodie, & Nigel, 2010). Aboriginal customary law Aboriginal customary law is the practice of a person within the family and the group being well and healthy. The main aim of the Aboriginal customary law is to maintain and heal relationships and it is a continuous process which involves negotiating, meditating as well as conciliation within management and resolving of the conflicts that are normal to each and every human association (Clarkson 1992). Aboriginal customary law should be considered during sentencing in several ways especially when there is important need to consider the law. For instance, evidence can be submitted in lessening the sentence that the offender has been sentenced or will be sentenced, traditional punishment. During the sentencing, a court can take into account suspending the sentence in order to allow the offender who is an Aboriginal to face a traditional punishment. In case an Aboriginal offender commits an offence in pursuance of or in accordance with aboriginal customary laws, such circumstances can be raised in order for the mitigation of the offence to occur. For instance, where an individual has undergone a traditional punishment, for example payback spearing, such a person can be convicted of assault. Moreover, these circumstances can also be raised as a defence to the charge (New South Wales Law Reform Commission 2000). Still, if the case is presented in such a manner that the offence took place because the victim breached the customary law, this normally has an effect in the mitigation of the sentence. Even if it might not stringently be an issue of Aboriginal customary law, proof of traditional customs or beliefs can assist in explaining the defendant’s behaviour and thus act in mitigation (Charles 1991). Furthermore, evidence of Aboriginal customary law can have an effect during exercising of the prosecutorial judgment, vested in police as well the Crown, as to if an accused individual is charged with an offence at all, or as to the kind of the offence with which the person has been charged. An Aboriginal offender can be subjected to customary law requirements which are applicable in establishing the suitable sentence. A good example is whereby a person is convicted in relation to impending tribal ceremonies. Still, Aboriginal customary law can come forth in case the Aboriginal community of the offender seeks to in forthcoming the court of its views of the graveness of the crime and its attitude towards the offender. On reliability of hearsay as the evidence during sentencing, if in the opinion of am expert the evidence seems factual, the evidence should be allowed to be considered during the sentencing since it would not be adduced in order to prove the facts asserted by the experts, on the other hand, the evidence would be adduced in order to explain the basis of the expert’s views. Aboriginal customary law can be considered in proving the existence of the asserted facts especially if the evidence is first-hand hearsay (Charles 1991). The Aboriginal customary law can be considered during sentencing when the sentencing judge is fully and reliably informed regarding the applicable customary matters. Therefore, the anthropologists can be availed in the court during the sentencing to assist in interpreting these customary laws during the sentencing. There should be a hearing expert as well as convincing proof from an individual who is entirely conversant with the language and the customs of the Aboriginal community (New South Wales Law Reform Commission 2000). During the consideration of, if and how Aboriginal customary law should be included within the sentencing procedure, it is important to take into consideration that, Aboriginal law, customs in addition to traditions are still in existence within Australia and just like the common law they are also dynamic. Seemingly, Aboriginal customary law has evolved in accordance with the needs of Aboriginal community. Again, the presence of Aboriginal customary law and its use does not depend on the presence of a traditional, segregated Aboriginal community. The issue is if the offender belongs to the rural; traditionally-living Aboriginal society, but if she or he is from an Aboriginal society for which Aboriginal customary law can be applied, and by which the offender is entirely or partly governed. Therefore, it is not obligatory in defining Aboriginal customary law as a precondition to its acknowledgment within the general sentencing procedure. Evidence as to the application as well as the content of Aboriginal customary law within the situations of a specific case can be presented before the sentencing court within that case (Charles 1991). Finally, during sentencing, the Aboriginal customary law should be considered in a situation where the law and the practice do not basically offend the general common law and where justice is best served through inclusion of the law. For instance, conferencing of the family as a juvenile justice alternative acknowledges Aboriginal’s solutions to juvenile offensive actions and hence can be utilized effectively. Similarly, payback tormenting or payback activities where death can lead into death of the offender should not to be embraced. Traditional allotment of property can be applied during sentencing of civil cases, where, in each and every situation justice to all concerned parties is the result, especially given that the normal and reliable conclusion to Aboriginal problems is a sensitive issue. Moreover, customary laws like child betrothals should not be considered during the sentencing (New South Wales Law Reform Commission, 2000). Bibliography Charles, C., 1991, “Sentencing Aboriginal People in South Australia”, Adelaide Law Review, Vol.90/92. Kittrie, 2006, Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice, Foundation Press, New York. Petersen, K., 2003. "The Punishment Need Not Fit the Crime: Harmelin v. Michigan, and the Eighth Amendment." Pepperdine Law Review, Vol.5/ 20. Sendor, B., 2005, "The Relevance of Conduct and Character to Guilt and Punishment." Notre Dame Journal of Law, Ethics and Public Policy, Vol.2/10. Spohn, C., 2007. How Do Judges Decide? The Search for Fairness and Justice in Punishment, Sage Publications, Thousand Oaks, Calif. Geraldine, M. & Jodie, O. & Nigel, S., 2010, Principles of Sentencing, Federation Press, Sydney. Clarkson, C. et al. 1992, Criminal Law: Text and Materials, Sweet & Maxwell, New York. David, J. & Ronald, H., 2002, Toward a Political Sociology of Punishment: Politics and Changes in the Incarcerated Population, Western Washington University, Washington DC. New South Wales Law Reform Commission, 2000, Sentencing: Aboriginal offenders report. Read More