1 University of New England, School of Law, Armidale NSW 2351, email@example.com
Arguably, traditional sentencing theory reflects a balance between Kantian retributivism based on assumptions of formally equal rational and autonomous moral agents, and pragmatic Benthamite utilitarianism. Although both have normative underpinnings, arguably, these sentencing philosophies can lead to anormative sentencing practices because both theories arguably give insufficient attention to the humanity and moral interests of offenders. In the sentencing context, TJ is a normative philosophy that urges legal actors and procedures to aim to minimise anti-therapeutic and maximise pro-therapeutic impacts on offenders when it can do so without compromising other important legal values. TJ has often drawn justification from utilitarian concerns, such as its potential to reduce recidivism; or from human rights concerns such as its tendency to better recognise the health and welfare needs of offenders. While recognising the importance of these perspectives, this paper will argue that a significant strength of TJ is that it imbues legal practice with state-of-the-act behavioural science knowledge. The crime prevention function of sentencing is enhanced both theoretically and pragmatically, when law and practice is imbued with scientific knowledge drawn from evidence-based behavioural sciences. Given the complexities involved in understanding human behaviour and influencing behavioural change, such interdisciplinary knowledge helps the law move towards a more scientifically coherent praxis.
Michelle Edgely is in the final stages of her PhD which examines the challenges involved in mainstreaming TJ in relation to mentally disordered offenders. She has published on TJ related issues and on other criminal procedure related issues.