By Paul McGorrery

In sentencing an offender, courts take many factors into account, such as the seriousness of the offence, the offender’s prior record, their age, whether they pleaded guilty and many others. In Australia, courts do this through an approach known as instinctive synthesis, meaning they consider all the factors that can justify a sentence being more or less severe and then arrive at a final outcome. One of the factors that courts may take into account is whether the offender has already been punished in some fashion outside the criminal justice process. Known as extra-curial punishment3 (or extra judicial or natural5 punishment) this can take various forms such as visa cancellation,6 loss of chosen career, injury to the offender8 and hardship to the offender’s family. This report is concerned with just one form of extra-curial punishment: adverse media coverage, in particular, of people. The media and the courts have an important and symbiotic relationship, but sometimes their interests can diverge. The media have an interest in reporting on criminal justice matters because they are often stories of considerable interest to their audiences. In reporting on those stories, the media often concentrate their attentions ‘on the exceptional and unusual among serious crimes’, which can lead to ‘intense and often emotive media reporting’ about sentencing. This can run the risk of undermining, rather than promoting, confidence in the justice system.

Courts in turn have an interest in having their decisions reported. Confidence in the judicial arm of the criminal justice system relies on a combination of community awareness about what courts do, the transparency of their work, and the apparent fairness of their decisions, which can only be scrutinised if there is transparency and community awareness. Moreover, the sentencing purpose of general deterrence – whereby the sentencing of one offender is thought to deter other people from engaging in similar behaviour – is realistically only achievable (if at all) if the media and/or government operate as the conduit between the courts and the community. While some courts have taken the very laudable step of making most of their sentencing remarks publicly available, many people do not even have time to read media summaries, let alone original source material like sentencing remarks, especially in the social media age. So the community realistically only becomes aware of sentencing decisions through the media. The difficulty is balancing the need for fair coverage (the courts’ priority) with the need for interesting coverage (the media’s priority). Justice Harper has described the relationship as like a ‘Greek tragedy’ because ‘[e]ach is forced by its circumstances to face the other off, with neither having the flexibility necessary to reach a satisfactory working compromise’.

Malbourne: Sentencing Advisory Council (VIC), 2022. 24p.

By David de Boer

For victims of persecution, attracting international awareness of their plight is often a matter of life and death. This book uncovers how in seventeenth-century Europe, persecuted minorities first learned how to use the press as a weapon to combat religious persecution. To mobilize foreign audiences, they faced an acute dilemma: how to make people care about distant suffering? This study argues that by answering this question, they laid the foundations of a humanitarian culture in Europe. The book reveals how, as consuming news became an everyday practice for many Europeans, the Dutch Republic emerged as an international hub of printed protest against religious violence. It traces how a diverse group of people, including Waldensian refugees, Huguenot ministers, Savoyard officeholders, and many others, all sought access to the Dutch printing presses to raise transnational solidarity for their cause. By examining their publicity strategies, this study deepens our understanding of how people tried to confront the specter of religious violence that had haunted them for generations.

Oxford, UK: Oxford University Press, 2023. 225p.

By Hsuan L. Hsu

Perhaps the most popular of all canonical American authors, Mark Twain is famous for creating works that satirize American formations of race and empire. While many scholars have explored Twain’s work in African Americanist contexts, his writing on Asia and Asian Americans remains largely in the shadows. In Sitting in Darkness, Hsuan Hsu examines Twain’s career-long archive of writings about United States relations with China and the Philippines. Comparing Twain’s early writings about Chinese immigrants in California and Nevada with his later fictions of slavery and anti-imperialist essays, he demonstrates that Twain’s ideas about race were not limited to white and black, but profoundly comparative as he carefully crafted assessments of racialization that drew connections between groups, including African Americans, Chinese immigrants, and a range of colonial populations. Drawing on recent legal scholarship, comparative ethnic studies, and transnational and American studies, Sitting in Darkness engages Twain’s best-known novels such as Tom Sawyer, Huckleberry Finn, and A Connecticut Yankee in King Arthur’s Court, as well as his lesser-known Chinese and trans-Pacific inflected writings, such as the allegorical tale “A Fable of the Yellow Terror” and the yellow face play Ah Sin. Sitting in Darkness reveals how within intersectional contexts of Chinese Exclusion and Jim Crow, these writings registered fluctuating connections between immigration policy, imperialist ventures, and racism.

New York: NYU Press.2015.

By Dimitri A. Bogazianos

In 2010, President Barack Obama signed a law repealing one of the most controversial policies in American criminal justice history: the one hundred to one sentencing disparity between crack cocaine and powder whereby someone convicted of “simply” possessing five grams of crack—the equivalent of a few sugar packets—had been required by law to serve no less than five years in prison. In this highly original work, Dimitri A. Bogazianos draws on various sources to examine the profound symbolic consequences of America’s reliance on this punishment structure, tracing the rich cultural linkages between America’s War on Drugs, and the creative contributions of those directly affected by its destructive effects.

Focusing primarily on lyrics that emerged in 1990s New York rap, which critiqued the music industry for being corrupt, unjust, and criminal, Bogazianos shows how many rappers began drawing parallels between the “rap game” and the “crack game." He argues that the symbolism of crack in rap’s stance towards its own commercialization represents a moral debate that is far bigger than hip hop culture, highlighting the degree to which crack cocaine—although a drug long in decline—has come to represent the entire paradoxical predicament of punishment in the U.S. today.

New York; London: NYU Press, 2011. 216p.