Manifest Injustice? The Judiciary as Moderator of Penal Excess in the Sentencing of Youth for Murder
| Date | 01 March 2018 |
| DOI | http://doi.org/10.1111/hojo.12238 |
| Published date | 01 March 2018 |
| Author | NESSA LYNCH |
The Howard Journal Vol57 No 1. March 2018 DOI: 10.1111/hojo.12238
ISSN 2059-1098, pp. 57–76
Manifest Injustice? The Judiciary as
Moderator of Penal Excess in the
Sentencing of Youth for Murder
NESSA LYNCH
Senior Lecturer, Faculty of Law, Victoria University of Wellington,
New Zealand
Abstract: A principled approach to the sentencing of young people requires recognition of
their particular mitigating characteristics, including brain development. Contemporary
approaches to the sentencing of murder involve mandatory or presumptive sentencing.
Legislative allowance for judicial discretion has been suggested as a counterbalance
to the punitive effect on young offenders. This article uses New Zealand as a case
study to consider whether, and how, judges would exercise a ‘safety valve’ discretionary
provision for young offenders. Judges acted (at least in part) to moderate penal excess
in the imposition of long minimum periods of imprisonment (MPIs), but it seems that
a discretionary sentencing provision of itself will not ensure proportionate and humane
sentences for this category of offender. This lends support to the idea that appropriate
legislative caps and a requirement of demonstrated risk to public safety for a sentence of
imprisonment may be a better avenue for ensuring proportionality.
Keywords: mitigation; murder; punitiveness; sentencing; youth justice
A principled approach to the sentencing of young people requires recog-
nition of the lesser capacity and culpability of this category of offender
(VonHirsch 2001; Zedner 1998).1Despite contemporary understanding of
child and adolescent brain development, and the demonstrable traumatic
and criminogenic effects of contact with the adult justice system (Royal
College of Psychiatrists 2006), a charge of murder is inevitably a jurisdic-
tional exception, removing the young person from the specialised youth
justice system (Child Rights International Network (CRIN) 2015). Upon
conviction, sentencing in adult court juxtaposes vulnerable and troubled
young people with punitive and deterrent sentencing laws, such as life
imprisonment and mandatory minimum periods of imprisonment (MPIs)
(Logan 1998). The effect on young people is particularly severe, imposing
lengthy terms of imprisonment on individuals whom the law may consider
incapable of driving, voting, or being at home without adult supervision.
This has been criticised for gross disproportionality, particularly given the
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2017 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol57 No 1. March 2018
ISSN 2059-1098, pp. 57–76
temporal nature of criminogenic factors in this group (Cohen and Casey
2014).
There is scholarly and professional support for the abolition of the
mandatory sentence of life imprisonment in murder cases, in favour of dis-
cretionary provisions which allow greater judicial recognition of a range
of circumstances and culpability (Fitz-Gibbon 2013), such as youth and
vulnerability. New Zealand removed the mandatory sentence of life im-
prisonment for murder in 2002, and replaced it with presumptive provi-
sions, where judges may choose a finite sentence, or a lesser non-parole
period, in cases of ‘manifest injustice’ (ss. 102–4, Sentencing Act 2002).
The discussion which follows uses New Zealand as a case study to consider
whether, and how, judges would e xercise this discretion for young people
convicted of murder, in the context of a jurisdiction which combines a
highly-punitive adult justice system and a tolerant and progressive youth
justice system (Lynch 2013).
Data on the use of the discretion and analysis of a sample of judicial
sentencing notes demonstrate how judges act (at least in part) to moder-
ate penal excess in the imposition of long MPIs for ‘aggravated murders’.
However, contrary to evidence of harsh and criminogenic effect, they do
not consider the life sentence to be disproportionate and unjust for young
people. This is important in considering the design of a principled ap-
proach to young people convicted of murder. It seems that a discretionary
sentencing provision of itself will not ensure more humane sentences for
this category of offender. This lends support to the idea that appropri-
ate legislative restrictions such as removal of MPIs, and a requirement of
demonstrated risk to public safety before a custodial sentence may be im-
posed, may be a better avenue for ensuring that the harshest effects of
such sentences are tempered (Child Rights International Network (CRIN)
2015).
The Sentencing of Young People for Murder
Murder,the intentional killing of another, is regarded as topping the harm
scale of the criminal law (Pillsbury 2000), albeit with a range of culpability
(Law Commission of England and Wales 2006). Murder was customarily
punishable by death (Hart 1957) though often commuted to life imprison-
ment, particularly for young offenders (Hammel 2010; Hood and Hoyle
2015). Life prisoners were subject to broad discretionary release powers,
exercised by politicians or administrative bodies (Padfield 2013). In a more
rehabilitative penal environment, life prisoners could serve as little as five,
but commonly ten to 15 years’ imprisonment (Harrison 2012; Padfield
1993, 2013). Contemporary sentencing regimes for murder are reflective
of a view that discretion ought to be fettered (Roberts 2003b). Perceived
public appetite for punishment and truth-in-sentencing means that the
sentence of life imprisonment is increasingly imposed with mandatory
or presumptive MPIs (Tonry 1992), including ‘whole of life’ sentences
(Appleton and Grøver 2007; van Zyl Smit, Weatherby and Creighton
2014). Public safety, rather than the rehabilitation of the offender, governs
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2017 The Howard League and John Wiley & Sons Ltd
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