The Sentencing Framework And Risk Dangerousness And Non Commensurate Sentencing Notes

CSPS Supervision 3 – The Sentencing Framework (and Risk, Dangerousness & Non-commensurate Sentencing)

I. SENTENCING

Easton and Piper – Structuring sentencing (2016)

Justice and discretion

Who decides what is ‘fair’?

• In the 21^st C, Ashworth (2013) argues that there has been a ‘struggle for supremacy in sentencing’. P37

• The freedom of the judge or magistrate to choose a particular sentence has been reduced over the past two decades such that judicial discretion has been restricted.

• Despite opposition from the judiciary and the magistry, the Sentencing Advisory Panel set up in 1998 was joined by the Sentencing Guidelines Council, and then both were replaced by the Sentencing Council.

• For most of 20^th C, sentencers had considerable freedom to choose a penalty.

  • Ashworth and Roberts (2013) argue that the change has been driven not only by the desire for greater consistency at the sentencing stage but also by the ‘need to achieve greater accuracy in projections of the number of prisoners’.

  • Young and King (2013) argue that the guidelines ‘provide a more sophisticated range of mechanisms through which Parliament can influence sentencing practice and they increase transparency in sentencing policy and practice.

• What is construed as fair or just depends on the changing ideas of social justice and on the theoretical approach which is taken to understanding the notion of punishment itself. P38

The discretion continuum

• At one extreme, sentencing is unjust because there are no constraints whatsoever on the sentence, who can then make decisions based on personal prejudices and whims.

• At the other end of the spectrum is the sentence who has no discretion whatsoever because the rules and principles are so tightly drawn, with all potential factors accounted for, that the sentence is simply the technician who feeds in the data and reads off the answer.

• The expectation is that the rule of law will be upheld because the citizen must have confidence in the law and institutions of the state.

  • Salter and Twist (2007): ‘Discretionary decision making is condemned as a cavalier disregard for the imperative’ and threatens to undermine the ‘moral’ allegiance of the citizen to the criminal justice system. P39

Constitutional issues

• In democratic states neither the professional nor the lay judge can do just what they might want to do when sentencing.

• There are rules that guide them in the exercise of their discretion.

• But the discretion of the sentencing judge has been described as ‘the central principle of the English sentencing system’ (Thomas 2002).

• Democratic legitimacy requires that Parliament has a role in determining the sentencing framework.

• In the UK we have the paradoxical situation where judges and magistrates have historically been provided with an increasingly wide choice of available penalties while, at the same time, the trend has been to circumscribe their discretion.

Discretion as ‘bad’

• Parliamentary anxiety about the differential treatment of persistent but minor offenders was one of the factors leading to the creation of the Court of Criminal Appeal in 1907.

• By end of 20^th C, a major concern arising from research results was that there appear to be geographic variations in custodial sentencing in England and Wales.

  • Home Office research from 2003-2006 showed that average custodial sentence lengths and the use of life and indeterminate sentences for public protection varied significantly across the 42 Criminal Justice Areas in England and Wales. P40

• Concern is that the exercise of discretion is not being limited to the ‘relevant idiosyncrasies’ of a case.

• Does discretion allow ‘space’ for discrimination – personal or institutional – to occur?

  • Focus of research has been the custodial sentence and the fact that ethnic minorities are over-represented in prison.

  • Hedderman (1990) suggests that ‘women may receive more lenient sentences than men because they are more nervous and act more respectfully and deferentially to the Bench’.

• Wise discretion criticised as diminishing possibility of accurately predicting sentence outcome.

  • Sanctions cannot give a clear deterrent message to past or potential offenders and solicitors are unable to advice their clients effectively.

Criticism: discretion is ‘good’

• Writing in the context of prosecutorial discretion in the Health and Safety Inspectorate, Hawkins has argued that ‘systems of formal rules, for all their appearance of precision and specificity, work in only imprecise ways. Indeed, precision and consistent practice are not necessarily assisted by the drafting of ever more elaborate schemes of rules.’ P41

• Main arguments in favour of more sentencing discretion:

  • Reduced discretion results in a decreased possibility that justice can be tailored to the specific circumstances of a case.

  • Research on practice in jurisdictions which have had mandatory sentencing for some time would suggest that its utilitarian aims cannot be delivered.

  • Judges and other legal professional may seek ways to circumvent mandatory provisions.

  • The lack of discretion at the sentencing stage could encourage more ‘not guilty’ pleas.

    • Accused might consider that more is at stake if the likely penalty is severe and so choose to risk a trial.

  • Insertion of specific sentences into an otherwise discretion-based sentencing system will skew the ‘tariff’ which in practice determines a scale of severity-related punishments.

  • Lack of discretion may lead to constitutional or human rights violations.

• But political imperatives and symbolic goals may outweigh the money ‘wasted’ or even the likelihood of a rights challenge.

• Mandatory sentences have given clear messages to the electorate that Parliament is ensuring that sentencers will be sufficiently tough to protect them.

Sentencing choices: contradictory trends

• Garland (1985) argues that 1895-1914 was crucial period in history of modern penality, with the number of sanctions almost doubling in this period.

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