Easton & Piper: Sentencing and Punishment 4e
Chapter 2: Guidance for end-of-chapter questions
At the end of chapter 2 you were given:
- Discussion questions focusing on sentencing discretion
- A case study which asks you to consider the importance in sentencing of penal justifications.
A. Questions for discussion
We asked you to read the comments below and then consider the questions posed under ?Tasks?.
This chapter has examined the traditional and the more recent tools for structuring the discretion of those who sentence. In England and Wales the judges have sometimes resisted the new constraints, on the basis that a wider discretion gives them the power to do justice in individual cases. On the other hand, public and policy pressure has more usually been in favour of constraining judicial independence on the assumption that this would reduce the injustice of inconsistency and achieve particular policy objectives.
Most of these statements and assumptions cannot be tested empirically in any way that will give closure to the debate about sentencing discretion. Whilst there is evidence that the provisions of the CJA 1991 - after an initial decrease - did not reduce the use of custody and that there was an increase from 1993 onwards, there is not necessarily a clear link. Several possible explanations have been suggested: that the amendments made to the Act in 1993 reintroduced discretion in relation to previous offending and associated offences (see Chapter 3), that community penalties lacked legitimacy and were under-resourced, that later legislation provided too many exceptions to the restriction on the use of custody, and that popular and government punitiveness influenced judicial thinking. Some of these factors involve judicial discretion, others do not although the Halliday Report (2001) implicitly blamed the sentencer when arguing that the system was not ?working? in line with policy objectives, that seriousness is not measured ?properly?, and that there should be a ?limited? retributivism.
We also suggested the following texts might be helpful in doing the tasks below:
Padfield, N. (2013) ?Exploring the Success of Sentencing Guidelines? in Ashworth, A. and Roberts, J. (eds) Sentencing Guidelines, Exploring the English Model. Oxford, Oxford University Press.
Roberts, J. (2013) ?Complying with Sentencing Guidelines: Latest Findings from the Crown Court Sentencing Survey? in Ashworth, A. and Roberts, J. (eds) Sentencing Guidelines, Exploring the English Model. Oxford, Oxford University Press.
Sentencing Council (2015a) Theft Offences, Definitive Guideline. London, Sentencing Council (an example of a recent Guideline)
Sentencing Council (2015c) Crown Court Sentencing Survey, Annual Publication January to December 2014 England and Wales. London, Sentencing Council.
- What evidence would you need to demonstrate the effectiveness of guidelines in constraining discretion?
As noted above, there is no sure way of demonstrating how effective guidelines are as a means of constraining judicial discretion. In effect, in line with the aim of the Sentencing Council ?to promote a clear, fair and consistent approach to sentencing?, the ?success? of a guideline in constraining discretion could be evidenced by data showing consistency of outcome across courts and judges dealing with similar cases and by evidence that judicial reasons given for sentence complied with the guidelines. However, Padfield (2013) notes that ?consistency is itself a fluid and slippery concept? and that we might be seeking consistency of approach rather than consistent outcomes (p.32). She also points out that judges have to apply the potentially inconsistent sentencing aims in s 142(1) of the Criminal Justice Act 2003 and that ?this provision may have led to greater inconsistency? (p.33).
There is the further problem in that there is very little sentencing data to use for this purpose. Criminal justice sentencing statistics give overall figures for the numbers of convictions and different sentences for various offences but they cannot tell us whether there has been consistency of outcome resulting from sentencers having to follow guidelines. Interviews with judges and magistrates might indicate their approaches but not prove their practice.
One possibly useful source is the Crown Court Sentencing Survey which collected data from 1 October 2010 to 31 March 2015. This paper survey, completed by the sentencing judge in the Crown Court collected information on the factors taken into account by the judge in working out the appropriate sentence for an offender and the final sentence given: examples of the forms used can be seen at http://www.sentencingcouncil.org.uk/publications/?type=publications&s=form&cat=crown-court-sentencing-survey. The 2015 Survey , using data for Jan-Dec 2014 can be accessed at http://www.sentencingcouncil.org.uk/wp-content/uploads/CCSS-Annual-2014.pdf One part of the report that you might look at for ?answers? concerns departures from the guidelines:
Courts are under a legislative duty to impose a sentence within the offence range specified by sentencing guidelines, unless it is in the interests of justice to depart from this. However, they are not required to stay within the relevant category range defined by the guideline. The offence range is the full spectrum of sentences over all offence categories? (2015:7).
Table 1, regarding sentences covered by the definitive guidelines for assault, burglary and drug offences, showed that 97-98% of sentences were within the range. For burglary 3% were above the range, for all three 1% or fewer were below the range (ibid; see section 6 of the Survey for very detailed analysis of the departures data). You might see this as evidence that at least one aspect of the guidelines is constraining discretion. On the other hand it is not possible to prove the direct link using this data.
Further the crucial issue might be where in the offence range the sentence falls and how the listed mitigating and aggravating factors have been weighted: you might wish to think about this again when you have read section 3.2.1 in Chapter 3. That section examines the format of the Burglary Offences Definitive Guideline (Sentencing Council: 2011b) and explains the importance of establishing a category range but without sufficient guidance on weighting of factors at each step. Therefore, whilst it might be possible (via surveys and interviews) to establish that a judge or magistrate has not strayed beyond the factors listed in the guideline there would still appear to be discretion in weighting of factors in the crucial choice of offence category. In particular there is a problem establishing causation in relation to the discount for a guilty plea (see Padfield 2013: 45-46).
So, providing evidence of consistency, adherence to the process and factors listed in a guideline is fraught with difficulties for two main reasons: first it is not easy to gain access to courts and judges to acquire the data, and secondly, the data can establish correlations and references to guidelines but not prove conclusively that the outcome would otherwise have been different.
- In the light of our comments above, do you think that the guidelines issued since 2011 are effectively constraining discretion? Why/why not?
As you will read in Chapter 10 (section 10.2.3):
Research undertaken in 2006 in the magistrates? courts of England and Wales to assess the extent to which magistrates were using new structured sentencing guidance for fines found that, whilst all participants were using the guidance to reach a decision, many panels ?subsequently chose to change their minds? (Raine and Dunstan 2009: 29).
This would suggest that there is sufficient discretion in the guidelines used by magistrates to allow for preferred outcomes to be fitted into the framework of the guideline. Further, as we saw in relation to Question 1, whilst the guidelines appear to be constraining discretion in that judges and magistrates must follow the guidance and explain their sentence in relation to it, there is no sure ?proof? that the guideline alone is leading to the chosen outcome. As Padfield states, ?There has undoubtedly been a big change in sentencing ?culture? in recent years? but, she asks ?how much of this can be credited to the development of guidelines?? (2013: 46). She points out that there are many ?extra-legal? factors that influence sentencers, notably the political climate (ibid: 47).
As we noted in Chapter 1 (section 1.2.3), the sentencing of those who had committed offences during the riots of 2011, appeared harsh and inconsistent to many commentators. Some sentences were successfully appealed but others not. The initial assessment published by the Sentencing Council in January 2016 of the influence on sentencing of the 2012 burglary guideline also notes on p.1 ?For domestic burglary there has been a shift towards more severe sentences. However, this was anticipated and appears to be part of a long term trend, and therefore unlikely to be as a result of the release of the guideline?. So it would appear there was ?room? within the guidelines to allow public opinion and politicians to influence outcome.
B. Sentencing exercise
At the end of Chapter 2 you were given the scenario below and asked what you would do with Arti and Burt. You were told to imagine that you know no sentencing law and guidance and that you have complete discretion to sentence how you like. We gave you the following task:
- To justify an outcome (a ?sentence?) separately for Arti and Burt in relation to what each has done.
- To do this twice using the following information and then compare your conclusions.
1. Decide you will punish Arti and Burt in a way which seems to you what they deserve for what they have done. State what factors of the case you took into account and decide whether your answer would be any different if you had been aware that insulting or harming grandparents was viewed as a very serious matter in their community?
2. Decide what you think will be the most effective outcome for everyone concerned. State the purpose of your decision and what factors you took into account.
The following are the agreed facts of your ?case?:
Arti, a 20-year-old, and his friend, Burt, aged 17, came back to Arti?s family home one evening feeling upset and angry because their twin-sister girlfriends had just ditched them. Arti took his grandad?s radio?of great sentimental significance to his grandad because it had been a present from a dying friend?couldn?t find the right wavelength and smashed the radio. Burt insulted and swore at Arti?s grandad.
Burt and Arti then decided to take the motorbike from the neighbour?s yard (without asking him) and, taking turns, drove the motorbike round the town. (Arti had apparently done this twice before.) They then abandoned the motorbike. While they were gone, Arti?s grandad had a stroke and died two hours later.
If your answers to 1 and 2 are different that is probably because you were applying different principles or rationales in each one. The first approach asks you to sentence on retributivist principles; the second allows you to choose a utilitarian or even a restorative principle and objective.
For the first task you are being asked to sentence on retributivist principles and so the purpose of the sentence is that Arti and Burt should receive their just deserts. You therefore need to calculate how serious their offending was and select a sentence for each of them which is proportionate to what they have done. Given that you have no information about approaches to proportionality in that society, you need to consider issues of ordinal and cardinal proportionality and decide on 'anchoring points' for your penalty scale.
You also need to consider what factors in the case make the offending more or less serious, and what personal factors you are prepared to take into account in mitigation. You need to decide on the extent to which you would take into account the element of persistence in their wrongful use of the motorbike, given different retributivist approaches. You also need to consider how much weight you will give to the 'value' of the damaged radio to the victim as opposed to its value in monetary terms. You might also consider whether the offenders' culpability is increased because of the outcome of the incident on the victim's health. If you are made aware that the victim had a particular status in the community so that any offending against him was automatically more serious, then you would need to weight the seriousness and proportionate punishment more heavily.
For the second task you would sentence on utilitarian principles (Chapter 4) or, arguably, restorative justice principles (see Chapter 6, section 6.2) and so you need to decide what effective outcome you wish to encourage. In relation to utilitarianism, this outcome could be incapacitation or rehabilitation of the offender (to prevent or reduce their re-offending) or deterrence (of the offender or others). For the purposes of deterrence, rehabilitation or incapacitation the penalty you impose could be considerably longer, more intrusive and generally more 'painful' than any proportionate sentence imposed under Task 1 as long as you could justify that this would achieve its stated objective. In regards to rehabilitation you might wish to impose a form of punishment which also benefits the community or the family if you think this would contribute to changing the attitudes of Arti and Burt to their offending. Similarly, if you took a reparative approach, where the desired outcome is re-integration of the offenders and the repairing of damage (physical or emotional) to all affected persons, then you might consider mediation and reparation.
We also noted that, in relation to Task 1, you might wish to alter your proposed sentence if asked to reconsider your ideas about seriousness. When thinking again about seriousness you might have:
- Appreciated - through focusing on the 'value' of grandad's radio, and the 'value' of grandad himself - the problems in deciding on the seriousness of offending, given the problematic nature of the values and ideas that underpin our social understandings of harm and culpability.
- Realised the significance of Arti?s previous 'borrowing' of a motor bike. How far can retributivist theory incorporate 'punishment' for what has already been punished? Is culpability increased by persisting in offending? (In Chapter 3 section 3.2.4 we look at this issue in more detail.)
- Understood the usefulness of a detailed sentencing framework for deciding what punishment is commensurate with the amount of offence seriousness.
- Appreciated the difficulty in practice of sentencing purely on one set of principles - retributivist or utilitarian.
You may wish to re-read section 2.1 of Chapter 2 to think again about the arguments around discretion and fairness.
The edited collection by A. Ashworth and J. Roberts, Sentencing Guidelines, Exploring the English Model (2013, Oxford University Press), is also a useful text for gaining a better understanding of the benefits and problems arising from the use of sentencing guidelines.