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2
sentencing: theory,
principle, and practice
Andrew Ashworth and Julian Roberts
The passing of a sentence on an offender is the most public stage of the criminal
justice process. Sentencing attracts widespread media coverage, intense public
interestand much public criticism. Selective news coverage, populist
journalism, and the complex- ities of sentencing help to explain why polls
conducted in all western nations routinely demonstrate that most people believe
their courts to be too lenient1 (see Hough and Roberts, this volume). When
researchers provide sufficient information about sen- tencing decisions, the
punitiveness gap between the public and the courts diminishes greatlybut it is
the polls that attract headlines.
Comunicarea sentintei unui infractor este cea mai publica parte a procesului de
justitie si atrage atentia media si a publicului, dar si critica publica. Prezentarea
media selectiva, jurnalismul populist, dar si complexitatile procesului de
condamnare ne ajuta sa intelegem de ce anume sondajele din tarile occidentale
cred despre curtile lor de justitie ca sunt prea blande. Cand cercetatorii ofera
informatii suficiente despre deciziile luate, decalajul dintre realitatea sentintei si
dorintele publicului se reduc simtitor, dar in continuare sondajele sunt cele care
atrag atentia.
This chapter begins by examining the various rationales for sentencing and then
explores sentencing procedures and practices, including both custodial and noncustodial sentencing. We also discuss the sentencing guidelines that have been
issued over the past decade in England and Wales. Throughout the chapter our focus
is upon sentencing in England and Wales. However, since many of the problems
confronting sentencing and indeed the solutions to those problems are shared by
many countries, we also periodically provide illustrations from other common law
jurisdictions.
desert theories
Retributive theories of punishment have a long history, going back to the writings of
Kant and Hegel. In their modern guise as the just deserts perspective, they came to
prominence in the 1970s, propelled by the alleged excesses and failures of rehabilitative ideals (von Hirsch 1976). Desert theorists argue that punishment is justified as the
morally appropriate response to crime: those who culpably commit offences deserve
censure; this censure should be conveyed through some hard treatment that prompts
the offender to take the censure seriously, but the amount of hard treatment should
remain proportionate to the degree of wrongdoing, respecting the offender as a moral
agent (see von Hirsch and Ashworth 2005).
Teoriile retributive ale pedepsei au o lunga istorie, mergand pana la scrierile lui Kant si
Hegel. In forma lor moderna de perspective ale meritului just au ajuns in atentie in anii
70 propulsate de un asa zis exces si esec al idealurilor de reabilitare. Teoriile meritului
sustin ca pedeapsa este justificata a fi raspunsul moral potrivit pentru crima:cei care sunt
vinovati de comiterea unei crime merita blamare, aceasta blamare ar trebui transmisa
printr-un tratament care cheama infractorul sa ia blamarea in serios, dar cantitatea
tratamentului dur ar trebui sa raman proportionala cu gradul de gravitate, respectand
infactorul ca un agent moral. von Hirsch and Ashworth 2005)
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The justification for the institution of state punishment also incorporates the
con- sequentialist element of underlying general deterrence: without the
restraining effect of a system of state punishment, anarchy might well ensue.
Some, notably Duff (2000), tie further consequentialist aims into a
fundamentally retributivist justification, arguing that punishment ought not only
to communicate justified censure but also to persuade offenders to repentance,
self-reform, and reconciliation. The behavioural premise of desert is that
individuals are and should be treated as responsible (though occasionally fallible)
moral agents. The political premise is that all individuals should be respected as
moral agents: an offender deserves punishment, but does not forfeit all rights on
conviction, and has a right not to be punished disproportionately to the crime
committed.
Justificarea pentru institutia statala a pedepsei de asemena contine si elementul
descurajarii generale:fara efetul restrictive al unui system statal de sanctionare,
anarhia ar urma sa apara. Unii, cel mai notabil Duff 2000, declara ca pedeapsa nu
ar trebui doar sa comunice blamarea justificata, dar de aemena sa convinga
infractorii la cainta, auto reformare si reconciliere. Premise comportamentala a
meritului este ca indivizii sunt si ar trebui sa fie tratati ca agenti morali
responsabili- desi cateodata dispusi la esecuri. Premise politica este ca toti
indivizii ar trebui sa fie respectati ca agenti morali:un infractor merita pedepasa,
dar nu renunta la toate drepturile o data cu condamnaea si are dreptul sa nu fie
pedepsit in mod neproportional cu crima comisa.
Proportionality is the key concept in desert theory. There are two forms of proportionality. Cardinal proportionality concerns the magnitude of the penalty,
requiring that it not be out of proportion to the gravity of the conduct: five
years impris- onment for theft from a shop would clearly breach that, as would
the imposition of a trivial penalty for a very serious offence. Ordinal
proportionality concerns the ranking of the relative seriousness of different
offences: to what degree is rape more serious than robbery, for example? In
practice, much depends on the evaluation of conduct, especially by sentencers, and
on social assumptions about traditional (e.g. street crime) compared with new types
of offence (e.g. commercial fraud, pollution). In theory, ordinal proportionality
requires the creation of a scale of values which can be used to assess the gravity of
each type of offence: culpability, together with aggra- vating and mitigating
factors, must then be assimilated into the scale. This task, which is vital to any
approach in which proportionality plays a part, makes consider- able demands on
theory (see von Hirsch and Ashworth 2005: Appendix 3; Ashworth 2010: ch. 4);
some would say that decisions on relative offence-seriousness can never be more
than contingent judgements which bear the marks of the prevailing power
structure.
deterrence theories
Deterrence theories regard the prevention of further offences
through the threat of legal sanctions as the rationale for
punishing. There is little modern literature on individual
deterrence, which sees the deterrence of further offences by the
particular offender as the measure of punishment. A first offender
may require little or no pun- ishment, while a recidivist might be
thought to require an escalation of penalties. The seriousness of
the offence becomes less important than the prevention of
repetition. Traces of this approach can certainly be detected in the
treatment of persistent offend- ers and so-called dangerous
offenders in contemporary sentencing, as noted below.
Teoriile descurajarii privesc preventia viitoarelor infractiuni prin
amenintarea sanctiunilor legale ca motivare pentru pedepsire. Exista
putina literature moderna despre descurajarea individuala, care vede
descurajarea viitoare lor infractiuni ale infractorului particular ca pe o
masura de pedeapasa. Un infractor primar are nevoie de o pedeapsa
mica sau chiar deloc, in timp ce un recidivist se crede ca ar avea
nevoie de o crestere a pedepselor. Seriozitatea infractiunii devine mai
putin importanta decat prevenirea repetarii acesteia. Urme ale acestei
abordari pot fi cu siguranta gasite in tratamentul infractorilor
recidivisti si a celor periculosi in procesul modern de luare a sentintei.
More attention has been devoted to general deterrence, which
involves calculating the penalty on the basis of what will deter
others from committing a similar offence. Leading utilitarian
writers such as Bentham (1789; cf. Walker 1991) and economic
theorists such as Posner (1985) develop the notion of setting
penalties at levels suf- ficiently severe to outweigh the likely
benefits of offending. The behavioural premise is that offenders
are predominantly rational, calculating individualsa premise that
criminologists may call into question. The political premise is that
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rehabilitation
The rationale here is to prevent further offending by the individual
through rehabilitation, which may involve therapy, counselling,
cognitive-behavioural programmes, skills training, etc. Still a
leading rationale in many European countries, it reached its zenith in
the United States in the 1960s, declined in the 1970s, and then began
to regain ground in the 1990s (see von Hirsch, Ashworth, and Roberts
2009: ch. 1). A humanitar- ian desire to help those with obvious
behavioural problems has ensured that various treatment
programmes continue to be developed. The key issue is the
effectiveness of various interventions, and there is a long-running
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iveness (e.g. Lloyd et al. 1994). The reality is that certain rehabilitative programmes are likely to work for some types of offender in
some circumstances. The What Works? movement rekindled
interest in various programmes for behav- iour modification, with
the development of accredited programmes in prisons and as part of
community sentences (see McGuire 2002; Harper and Chitty 2005),
but a sober assessment of the available results demonstrated that the
claims made by the Home Office and other protagonists have not
been translated into practice (Bottoms 2004).
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incapacitation
The incapacitative approach is to identify offenders or groups of offenders who
are likely to do such harm in the future that special protective measures (usually
in the form of lengthy incarceration) are warranted. The primary example of this
in England and Wales, originally introduced by the Criminal Justice Act
2003, is the IPP sentence (Imprisonment for Public Protection), prescribed for
certain offenders classified as dangerous. The nature of this sentence is discussed
later in this chapter. Incapacitation has no behavioural premise. It is neither
linked with any particular causes of offend- ing nor dependent on changing the
behaviour of offenders: it looks chiefly to pre- dicted risk and to the protection of
social theories
There has been a resurgence of writings which emphasize the social and political
context of sentencing (see Duff and Garland 1994: ch. 1). Important in this
respect are Garlands (1990) analysis of the theoretical underpinnings of
historical trends in punishment, and Hudsons arguments (1993) in favour of a
shift towards a more sup- portive social policy as the principal response to the
problem of crime. Those who have been influenced by Harts distinction (1968)
between the general justifying aim of punishment (in his view, utilitarian or
deterrent) and the principles for distribu- tion of punishment (in his view,
retribution or desert) should consider the challenge to this dichotomy in Lacey
(1988). She argues that both these issues raise questions of individual autonomy
and of collective welfare and we should address this conflict and strive to ensure
that neither value is sacrificed entirely at either stage. In developing this view she
explores the political values involved in state punishment and argues for a clearer
view of the social function of punishing.
Three difficulties arise with lists of purposes such as that found in section 142. First,
the objectives are potentially conflicting (except for reparation which can sometimes be achieved alongside another purpose). Second, no direction is provided as
to whether one objective is particularly appropriate for certain caseswhether, for
example, deterrence should be uppermost in a courts mind when sentencing corporate offending. Third, as the Home Office Sentencing Review (2001) pointed out, the
evidence for (b), (c), and (d) is weak. It is therefore unclear on what evidence an individual sentencer could make a rational choice among the various purposes. For these
reasons, lists of this kind have been criticized in the academic literature. England and
Wales is not alone in taking this approach to providing guidance regarding sentencing objectives. Similar lists of objectives have been placed on a statutory footing in
New Zealand and Canada, and the US guidelines manuals provide a similar range of
options for sentencers in the US jurisdictions (e.g. Minnesota Sentencing Guidelines
Commission 2010).
However, the Criminal Justice Act 2003 contains other provisions that may be used
to clarify matters. Section 143(1) states that:
In considering the seriousness of any offence, the court must consider the offenders
culpability in committing the offence and any harm which the offence caused or was
intended to cause or might foreseeably have caused.
Further, when the Act sets the threshold for community sentences and for custody,
and the standard for the length of custodial sentences, it uses the seriousness of the
offence as the key indicator. On this basis the Sentencing Guidelines Council (now
the Sentencing Council) issued a guideline entitled Overarching Principles
Seriousness2 to the effect that the proportionality principle enshrined in section
143(1) should be used by sentencers as the touchstone. That is fully consistent with
the thresholds set by the 2003 Act, but leaves the pick and mix approach of
section 142 somewhat in limbo.
It is hard to know how the various rationales for sentencing affect sentencing
practice. Judges often refer to general deterrence, most notoriously in the judgment in
Blackshaw [2011] EWCA Crim 2312, where sentences significantly above the
guidelines were approved for offenders involved in the riots of August 2011, on
grounds of general deterrence. There was no recognition of the weakness of the
evidence for general deter- rence, or other objections. Parliament too has legislated
for mandatory sentences for example the mandatory minimum of five years for
possession of certain firearms, in section 287 of the Criminal Justice Act 2003
based on a deterrent rationale.Protection of the public (incapacitation) remains as an
exception to the proportionality principle when dealing with so-called dangerous
offenders, and those provisions of the 2003 Act are discussed below.
The reform and rehabilitation of offenders is a relevant purpose once the court
has decided that a community sentence of a particular level is justified by the
serious- ness of the offence: in those cases, therefore, the proportionality
principle must be applied first, and once the threshold is passed, the possibility of
achieving a rehabilita- tive purpose enters the equation. All these points will be
taken further below. What they suggest, and as the seriousness guideline states, is
that proportionality should be the sentencers guide, except in dangerousness
cases, but that within the framework of a proportionate sentence it may be
desirable to aim for rehabilitation. A reparative measure may also be possible.
Reforma si reabilitarea infractorilor este un scop relevant o data ce curta a decis
ca o sentinta de un anumit nivel este justificata de seriozitatea infractiunii: in aceste
cazuri principiul proportionalitatii trebuie aplicat cu prioritate si dup ace acest prag
este deposit posibilitatea de obtinere a reabilitarii intra in discutie.
In so far as the proportionality principle holds sway, it places some limits on the
use of state power over those who offend. Even approaches that are critical of
desert theory, such as the republicanism of Braithwaite and Pettit (1990) and the
communitarian- ism of Lacey (1988), recognize some limits to state power at the
sentencing stage. The argument that desert theory leads to harsh penalties is not
sustainable by reference to international comparisons (von Hirsch and Ashworth
2005: ch. 6), although it does need to be combined with the principle of penal
parsimony to ensure that a movement towards punitiveness is avoided.