Carissa Byrne Hessick (Arizona State, Sandra Day O’Connor College of Law) has posted Why are Only Bad Acts Good Sentencing Factors? (Boston University Law Review, Vol. 88, No. __, (forthcoming 2008)) on SSRN. Here is the abstract:
Few pieces of information play a larger role in determining a criminal offender’s sentence than her prior criminal history. The notion that an offender’s prior bad acts ought to be considered an aggravating sentencing factor enjoys near-universal acceptance. But fewer jurisdictions appear to consider an offender’s prior good acts (such as honorable military service or charitable works) as a mitigating factor at sentencing. This Article discusses the potential relationship between aggravating and mitigating sentencing factors. It also explores whether, in light of the overwhelming consensus that a prior bad act is aggravating, there is a principled reason that a sentencing system could fail to treat a prior good act as mitigating.
I saw this fine paper presented at Law & Society in Montreal just a couple of weeks ago. One of the interesting questions that emerged in discussion concerns the question what framework should be applied to normative analysis when a "first best option" (excluding both prior bad & good acts) is outside the feasible choice set. (See Legal Theory Lexicon 011: Second Best)
Highly recommended.