Pardon or Prosecute: Offenders, Special Circumstances and the Law

Vol 12, Issue 1

​NATHAN GRECH

Crimes are reported at all hours of the day online, on television and in print. Often, background information is provided about the offenders themselves. In recent times, one group of characteristics among offenders has emerged as an influential factor on deciding the outcome of criminal cases – that is, special circumstances related to substance addiction, mental health, and cognitive impairment.

A justice system that acknowledges the impact special circumstances may have upon offending is one well-attuned with reality and contemporary attitudes about diversity. But is taking such an individualised, proactively tolerant approach appropriate in criminal proceedings, when the aim of the game is to protect the public and seek justice by holding offenders responsible for their behaviour?

Obviously, all parties should have the same rights to submit their perspectives to courts, no matter what their circumstances. Further, such a sensitive topic is difficult to raise without coming across as flippant or ignorant to the struggles of those caught up in the criminal justice system.

I think, though, that the question of lessening sentences or pardoning criminal behaviour for offenders with special circumstances needs closer scrutiny. Because no matter who an offender is, or how crimes are committed, is it not true that serious and uniform consequences of some severity are needed to set an example and maintain faith in criminal law and justice?

Place yourself for a moment in the shoes of the judiciary. Would it be appropriate to leniently prosecute someone with addiction-related mental health issues who stole clothing from a department store to fund their drug addiction? Arguably, this sort of crime lacks the same impact that a crime against a person would have,  because a shop is a commercial entity and a person is clearly an emotional being. So then, what if you’re presented with a more moral-based example?

This time, you’re faced with considering sentencing leniency for an adult offender who suffered years of childhood trauma, abuse and neglect, who repeatedly raped and molested children. Do you feel comfortable lessening the term of imprisonment or severity of punishment for this offender? After all, they’ve got special circumstances that have caused them to have an altered sense of what is lawfully acceptable and what isn’t. And you have some level of empathy for the fact that they too have had a turbulent, negative upbringing.

What is the best approach here, to ensure public safety and faith in the criminal justice system be maintained? How should criminal trials be handled when special circumstances complicate the submissions and facts surrounding a case? The more you attempt to consider how you yourself might approach these sorts of issues, the harder it becomes to treat both parties to a case with the same, uniform, impartial approach.

So then, should we actually somewhat “excuse” this group of offenders because we see the impact mitigating circumstances can have when criminal behaviour is involved? Or are we better off, in the interests of public safety and harmony, painting all offenders with the same strict brush, irrespective of their personal characteristics?

Ultimately, this issue is contentious and ripe for independent review and investigation. Only through competent management and forethought does the criminal justice system have a hope to resolve the matter sooner rather than later.

Nathan Grech is a first-year JD student

The rest of this issue:

• Nationalise the Profession
• What is it Like Being an Anarchist Law Student
• On Difficult Readings​
• Big Data: Challenges to the Freedom of Political Communication through Meme Pages

​