Responding to the Culpable State

Is Sentence Mitigation Appropriate?

Leo Zaibert, Julian V Roberts, Jesper Ryberg

• Publisher: Hart Publishing
• Year: 2025
• Edition: 1
• eBook ISBN:
  9781509975679
• Topic: Law
• Subtopic: Sentencing
• Index: Law

This volume explores ethical aspects relating to claims for mitigation arising from culpable state action (or inaction).

It answers the important and controversial question: to what extent should the state mitigate sentencing for defendants who have been victims of state misconduct?

The volume explores the normative justifications for mitigation and answers many intriguing questions. For example, in terms of the procedural challenges, should the offender have to prove a causal link between state wrongdoing or neglect and the offending? Can a court take judicial notice of state-induced social adversity and apply this consideration to all affected offenders? Other questions relate to the implications for courts and sentencing commissions which issue guidance to courts regarding mitigation at sentencing. To what extent is the offender less culpable as a result of state misconduct, and what are the limits of any resulting sentence reductions? Do sentence reductions for state misconduct undermine proportionality, or deprecate the seriousness of the impact on the victim of crime? Should this factor be included in any sentencing guidelines or possibly even as a statutory mitigating factor?

Each contribution explores a distinct, cross-jurisdictional claim for mitigation on the basis of State negligence or misconduct towards the offender. The chapters all address the appropriate response of courts at sentencing.

Table of contents

• Acknowledgements
• Table Of Contents
• About the Authors
• Table of Cases
• Table of Statutes
• 1. State Misconduct as Sentence Mitigation: Setting the Scene
• 2. State Illegitimacy and Punishment: Examining the Case for Discounts
• 3. State Misconduct and Mitigation in Punishment
• 4. The State Fault and the Right to Mitigation of Punishment
• 5. Standing to Punish, Sentence Mitigation and the Applicability Challenge
• 6. 'One Wrong Treads upon the Heels of Another': Mitigating Sentence in Response to State Misconduct
• 7. Sentence Mitigation as a Response to Intrinsic State Injustice
• 8. Sentence Mitigation for Unjustly Disadvantaged Offenders: Some Hard Questions
• 9. The Relevance of State Misconduct for Mitigating Punishment
• 10. Sentence Mitigation as a Remedy for the State's Legitimacy Deficit
• 11. The Relevance of State Misconduct in Sentencing: Distinguishing Justifications
• 12. Police Misconduct and Sentence Mitigation
• 13. Epistemic Injustice, State Misconduct and Sentence Mitigation
• 14. Unpacking the Recidivist Sentencing Discount from a State Misconduct Perspective
• 15. Whataboutism at Sentencing?
• 16. State Misconduct and Sentence Mitigation: Final Reflections
• Bibliography
• Index