Ensuring Sentencing Fairness in Cases of Recidivism with Mitigating Circumstances

Introduction: although the prescription for harsher punishment for recidivism may seem axiomatic, the criminal law itself provides for the possibility of showing leniency towards the guilty party and mitigating his fate in this situation. However, the inaccuracy of the legislative wording of certain norms, in particular the exception clause established in Part 3 of Article 68 of the Criminal Code, as well as the scarcity of relevant interpretative practice, hinder the adequate perception of the state’s will, impede the understanding of the grounds and limits for mitigating the punishment of a recidivist, and thereby obstruct the selection of a punishment proportionate to the crime committed. Purpose: 1) to clarify the role of “ordinary” mitigating circumstances in forming the grounds for reducing punishment under Part 3 of Article 68 of the Criminal Code and the limits of their influence on the measure of punitive impact chosen for a recidivist; 2) to formulate proposals for overcoming deficiencies in the legaltechnical formulation of the studied rules for mitigating punishment and for the implementation of these rules in interpretative practice and law enforcement. Methodology: the research methodology is traditional for addressing criminal law issues and takes into account the need to employ a complex of scientific research methods at both theoretical and practical levels. Results: the study has revealed the grounds for exceeding the notional lower limit of the sanction established for a recurrent crime in the presence of mitigating circumstances that are not exceptional; it has clarified the range of such circumstances and the limits for such mitigation of punishment. Recommendations have been formulated for the legislator and law enforcement bodies. Conclusions: 1) the grounds for exceeding the notional lower limit of the sanction established for a recurrent crime should be recognized as a set of facts which, in combination, indicate the possibility of achieving the goals of punishment, albeit through the application of only the most severe type of punishment listed in such a sanction, but to a lesser extent than one third of its maximum term, while the trigger for raising the question of the existence of such grounds from the perspective of ensuring sentencing fairness should be any mitigating circumstances, including those not listed in the statutory catalogue; 2) there is a need to differentiate between the grounds for mitigating the punishment of a recidivist considering ordinary mitigating circumstances and the grounds for granting him leniency under Article 64 of the Criminal Code; 3) the limit of the considered mitigation of punishment should be recognized as the minimum specified in the sanction of the particular article for the most severe type of punishment, or, in the absence of such specification, the minimum limit for this type of punishment as detailed in the General Part of the Criminal Code; 4) ways to technically and legally improve the text of Part 3 of Article 68 of the Criminal Code and to adjust the practice of implementing the norms enshrined in this article are outlined.