Sentencing Vulnerability: Conceptualizing the Incorporation of Personal Characteristics and Experiences at Sentencing

Social inequalities that lead to criminal conduct are often not considered in sentencing; individuals subject to structural inequities receive the same formal sentence as those convicted of like crimes irrespective of the latter’s social advantage. Individual characteristics may also affect how a sentence will be experienced by an individual. While Characteristics and Experience-Sensitive Sentencing (CESS) already exists in various forms and to various degrees in sentencing theory and praxis, a more cohesive, comprehensive, and principled CESS remains wanting. Building on existing approaches, this article locates CESS as a necessary response to equality-based concerns arising from current mainstream sentencing practice. Thus, it is not merely that CESS could be incorporated in sentencing or that judges have the discretion to consider and perhaps should more often consider personal characteristics and experiences at sentencing. Rather, the alignment of sentencing with overarching Charter values and equality-based ideals requires an intentional, cohesive CESS framework that routinely informs the practice of sentencing.