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 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 Gregory Forter

Though American crime novels are often derided for containing misogynistic attitudes and limiting ideas of masculinity, Greg Forter maintains that they are instead psychologically complex and sophisticated works that demand closer attention. Eschewing the synthetic methodologies of earlier work on crime fiction, Murdering Masculinities argues that the crime novel does not provide a consolidated and stable notion of masculinity. Rather, it demands that male readers take responsibility for the desires they project on to these novels.
Forter examines the narrative strategies of five novels--Hammett's The Glass Key, Cain's Serenade, Faulkner's Sanctuary, Thompson's Pop. 1280, and Himes's Blind Man with a Pistol--in conjunction with their treatment of bodily metaphors of smell, vision, and voice. In the process, Forter unearths a "generic unconscious" that reveals things Freud both discovered and sought to repress.

New York; London: NYU Press, 2000. 278p.