CULTURAL BACKGROUND AS A MITIGATING FACTOR IN SENTENCING

Guy Ben-David, Netanya Academic College

Abstract

In this article I will discuss the consideration of the cultural background of a defendant belonging to a minority culture as a mitigating factor in sentencing. When a defendant belonging to a minority, commits a criminal offense under the influence of the culture to which he belongs, his act can be viewed as resulting from dictates, norms and standards that were rooted and inculcated in his character. The principle of blameworthiness is a basic foundation in criminal law, and as such, if the defendant’s cultural background diminishes his blameworthiness, this factor should find expression in the criminal proceeding. Recognition of the cultural background of a defendant belonging to a minority culture is known as a "cultural defense." This expression means the recognition of the cultural background of a defendant who belongs to a minority group, as a "defense" in a criminal proceeding. In principle, the rule operates not only in establishing a "restriction of criminal liability”, in the functional sense; it also takes the literal meaning, i.e. that the defendant's cultural background may confer him a defense at all stages of the criminal proceedings, including exculpation from criminal liability, operating as a mitigating factor in the indictment filed against him, and finally, in the sentencing process. In this article I shall address the third aspect. In other words, I will examine the consideration for cultural background from the perspective of the sentencing system.

In the first part of the article I examine the validity of the four rationales that have been offered for the sentencing system - retribution, deterrence, incapacitation, and rehabilitation - as they relate to defendants belonging to cultural minorities. The second part of the article focuses on the various strategies used for presenting cultural backgrounds as a factor in sentencing. The third part of the article discusses recognition of cultural background as a sentencing consideration in practice, as evidenced in the Federal legal system of the U.S.A. The final part of the article discussed the arguments for and against recognition of the defendant's cultural background at the sentencing stage, and finally, I sum up the article.