¹ P. Robinson, “Competing Conceptions of Modern Desert: Vengeful, Deontological and Empirical” [2008] C.L.J. 145.

² See generally, A. von Hirsch and A. Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford 2005); and A. von Hirsch, Censure and Sanctions (Oxford 1993).

³ See generally, A. Ashworth, Sentencing and Criminal Justice, 4^th ed. (Cambridge 2005).

⁴ See generally, N. Morris, The Future of Imprisonment (Chicago 1974); N. Morris and M. Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System (New York 1990); M. Tonry, Sentencing Matters (New York 1996); and M. Tonry, “Parsimony and Desert in Sentencing” in A. von Hirsch and A. Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy, 2nd ed. (Oxford 1998), ch. 4.8.

⁵ Tonry, Sentencing Matters, note 4 above, at 19.

⁶ E.g., R. Fox and A. Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed. (Melbourne 1999); D. Thomas, Current Sentencing Practice (London 2002); Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottowa 1987); and A. Alschuler, “The Failure of Sentencing Guidelines: A Plea for Less Aggregation” (1991) 58 University of Chicago Law Review 901; and D. Freed, “Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers” (1992) 101 Yale Law Journal 1681.

⁷ E.g., A. Lovegrove, Judicial Decision Making, Sentencing Policy, and Numerical Guidance (New York 1989); J. Jacobson and M. Hough, Mitigation: The Role of Personal Factors in Sentencing (London 2007); T. Palys and S. Divorski, “Judicial Decision-Making: An Examination of Sentencing Disparity Among Canadian Provincial Court Judges” in D. Müller, D. Blackman and A. Chapman (eds.), Psychology and Law (Chichester, England 1984), ch. 24; and S. Diamond and L. Stalans, “The Myth of Judicial Leniency in Sentencing” (1989) 7 Behavioral Sciences and the Law 73.

⁸ See Minnesota Sentencing Guidelines Commission, The Impact of the Minnesota Sentencing Guidelines: Three Year Evaluation (St Paul 1984).

⁹ See R. Frase, “Sentencing Guidelines in Minnesota, 1978–2003” (2005) 32 Crime and Justice 131.

¹⁰ See United States Sentencing Commission, Sentencing Guidelines and Policy Statements (Washington 1987).

¹¹ See P. Hofer, “United States V. Booker as a Natural Experiment: Using Empirical Research to Inform the Federal Sentencing Policy Debate” (2007) 6 Criminology and Public Policy 433.

¹² See Sentencing Guidelines Council, Overarching Principles: Seriousness. Guideline (London 2004).

¹³ Sentencing Guidelines Council, Robbery. Definitive Guideline (London 2006).

¹⁴ Sentencing Guidelines Council, Sexual Offences Act. Definitive Guideline (London 2007).

¹⁵ Sentencing Guidelines Council, Causing Death by Driving. Definitive Guideline (London 2008).

¹⁶ Sentencing Guidelines Council, Assault and Other Offences Against the Person. Guideline (London 2008).

¹⁷ See J. Roberts, “Aggravating and Mitigating Factors at Sentencing: Towards Greater Consistency of Application” [2008] Criminal Law Review 264. At the time of writing the present piece, there is a current Sentencing Advisory Panel consultation paper issued with a view to the Sentencing Guidelines Council's general sentencing principles being revised. The recommendations include a list of 12 or so potentially mitigating factors and guidance on the use of rehabilitation as a sentencing aim. Nevertheless, proportionality remains strongly controlling; the Panel appears to envisage largely confining these matters to cases whose seriousness places them in the range just above the custody threshold. See Sentencing Advisory Panel, Overarching Principles of Sentencing Consultation Paper (London 2008).

¹⁸ For additional details about the method, see A. Lovegrove, “Public Opinion, Sentencing and Lenience: An Empirical Study Involving Judges Consulting the Community” [2007] Criminal Law Review 769; and A. Lovegrove, “Putting the Offender Back into Sentencing: An Empirical Study of the Public's Understanding of Personal Mitigation” (in press) Criminology and Criminal Justice.

¹⁹ Other factors regarded by the participants as significant are presented in the following section (B.). For a full list, see Lovegrove, “Putting the Offender Back into Sentencing”, note 18 above, Tables 1–3.

²⁰ This is not to say that a participant who found one of these categories to be relevant for an offender, found all four to be relevant for that offender.

²¹ There is a second aspect of the global character of the participants' take on personal mitigation. Recall, factors seen by them as underlying offending, and thus reducing culpability, were also applied in respect of the same offenders' rehabilitation. But rehabilitation is not a part of proportionalists' thinking.

²² See notes 2 and 3 above.

²³ See note 4 above.

²⁴ This illustrates a somewhat subtle difference between proportionalist and law-and-order sentiments. There are also substantial differences; for example, von Hirsch and Ashworth seek moderate, proportionate sentences, whereas the law and order lobby call for disproportionately harsh sentences. See also the discussion in the last paragraph of this section.

²⁵ See Lovegrove, “Public Opinion, Sentencing and Lenience”, note 18 above.

²⁶ See note 1 above.

²⁷ See Lovegrove, “Putting the Offender Back into Sentencing”, note 18 above.

²⁸ This conclusion assumes the generality of the present findings; this is addressed subsequently.

²⁹ See J. Roberts and A. Doob, “News Media Influences on Public Views of Sentencing” (1990) 14 Law and Human Behavior 451; R. Hogg and D. Brown, Rethinking Law and Order (Sydney 1998); and J. Roberts, L. Stalans, D. Indermaur and M. Hough, Penal Populism and Public Opinion: Lessons from Five Countries (New York 2003).

³⁰ See Lovegrove, “Putting the Offender Back into Sentencing”, note 18 above.

³¹ See Roberts et al., Penal Populism and Public Opinion, note 29 above.

³² See M. Hough, J. Roberts and J. Jacobson, Public Attitudes to the Principles of Sentencing (London 2009).

³³ See J. Jacoby and F. Cullen, “The Structure of Punishment Norms: Applying the Rossi-Berk Model” (1999) 89 Journal of Criminal Law and Criminology 245.

³⁴ See Lovegrove, Judicial Decision Making, note 7 above.

³⁵ See F. Cullen and K. Gilbert, “Reaffirming Rehabilitation” in von Hirsch and Ashworth (eds.), Principled Sentencing, ch. 1.4, note 4 above; and B. Hudson, “Beyond Proportionate Punishment: Difficult Cases and the 1991 Criminal Justice Act” (1995) 22 Crime, Law and Social Change 59. See also, note 24 above and the associated discussion.

³⁶ See M. Bagaric, “Proportionality in Sentencing: Its Justification, Meaning and Role” (2000) 12 Current Issues in Criminal Justice 143.

³⁷ See S. Easton, “Dangerous Waters: Taking Account of Impact in Sentencing” [2008] Criminal Law Review 105.

³⁸ See Roberts, “Aggravating and Mitigating Factors at Sentencing”, note 17 above.

³⁹ See Hudson, “Beyond Proportionate Punishment”, note 35 above.

⁴⁰ See G. Dingwall and L. Koffman, “Determining the Impact of Intoxication in a Desert-based Sentencing Framework” (2008) 8 Criminology and Criminal Justice 335.

⁴¹ See M. Hirst, “Causing Death by Driving and Other Offences: A Question of Balance” [2008] Criminal Law Review 339.