Mitigation of Punishment: Towards a Diachronic Theory
The paper is a response to a theory of degrees of blameworthiness (and praiseworthiness) that has recently been put forward by Dana Nelkin. I argue that she is right to focus on the agent's capacities and features of the situation in which a wrong has taken place. However the focus for Nelkin's theory is entirely upon those factors present at the time of the wrong. I argue that her theory explains some aspects of the sentencing practices of the courts but that the courts take a diachronic approach to mitigation that consider the agent's capacities at the time of the offence and features of the situation of the offence, but also historical factors relating to the moral development of the agent (for example difficult formative circumstances). In order to capture these historical features, a diachronic theory of mitigation is needed. I suggest that her theory needs to be supplemented with an acknowledgement of the difficulty that some agents have in forming a self with a greater inclination to exercise what capacities they do have in a way that conforms to norms. I take some tentative steps to addressing this and thereby adding further complexity to her theory of mitigation but bringing it closer to encapsulating the practice of the Australian courts.
Dr Allan McCay is from Macquarie University's Centre for Agency, Values and Ethics and University of Sydney Foundation Program.