Re-thinking notions of evidence and proof for sentencing: Towards a more communitarian model

Abstract

Judges and magistrates are often criticised for failing to take sufficient account of social factors such as poverty and social deprivation when sentencing offenders. The implication is that the sentencing practices of the courts lack an important social dimension—that of ‘social justice’—namely, the perception that the punishment of criminalised behaviour by the state is fair and non-discriminatory. This article asserts that the notion of ‘social justice’ sits uneasily with the values that sustain the existing paradigm of adversarial trial. It is argued that shifting the focus of the adversarial trial away from its narrow preoccupation with individual accountability towards a more communitarian model of penal accountability would significantly enhance the moral credibility of sentencing and its social impact. A more flexible approach to the admissibility and evaluation of evidence is advocated, one conceived within a communitarian ideology whose purpose is to promote penal interventions which enhance social justice.