Sentencing aims, principles and policies

CHAPTER Sentencing aims, principles and policies 3.1 The aims of the criminal justice system The ‘criminal justice system’ is not a structure which has been planned as a system Nor is it so organized that the several interlocking parts operate harmoniously In England and Wales, as in many other jurisdictions, the administration of criminal justice has grown in a piecemeal way over the years, with separate phases of development leaving their mark To refer to a ‘system’ is therefore merely a convenience and an aspiration It should not be assumed that the various arrangements were planned or actually operate as a system, although it remains necessary to recognize the interdependence of the different parts and to incorporate this into any planning It is important to distinguish the aims of the criminal justice system from the aims of sentencing, which merely relate to one element The system encompasses a whole series of stages and decisions, from the initial investigation of crime, through the various pre-trial processes, the provisions of the criminal law, the trial, the forms of punishment, and then post-sentence decisions concerned with, for example, supervision, release from custody and recall procedures It would hardly be possible to formulate a single meaningful ‘aim of the criminal justice system’ which applied to every stage It is true that one might gather together a cluster of aims: for example, the prevention of crime, the fair treatment of suspects and defendants, due respect for the victims of crime, the fair labelling of offences according to their relative gravity and so on But to combine these into some overarching aim such as ‘the maintenance of a peaceful society through fair and just laws and procedures’ is surely to descend into vacuity, since it gives no hint of the conflicts that arise and the priorities that need to be determined The Home Office’s first Statement of Purpose reveals the conflicts but fails to indicate priorities: To work with individuals and communities to build a safe, just and tolerant society enhancing opportunities for all and in which rights and responsibilities go hand in hand, and the protection and security of the public are maintained and enhanced.1 www.homeoffice.gov.uk 67 68 Sentencing aims, principles and policies This generalized purpose does not recognize that different stages may have their distinct aims and purposes It needs supplementing with more focused aims, but those enumerated by the Home Office not carry the issue much further These are (i) to reduce crime and the fear of crime, tackle youth crime and violent, sexual and drug-related crime, anti-social behaviour and disorder, increasing safety in the home and public spaces; (ii) to reduce organized and international crime, including trafficking in drugs, people and weapons, and to combat terrorism and other threats to national security, in co-operation with European Union (EU) partners and the wider international community; (iii) to ensure the effective delivery of justice, avoiding unnecessary delay, through efficient investigation, detection, prosecution, trial and court procedures To minimize the threat to and intimidation of witnesses and to engage with and support victims; and (iv) to deliver effective custodial and community sentences to reduce reoffending and protect the public, through the prison and probation services, in partnership with the Youth Justice Board These aims are undoubtedly important, even if the attempt to highlight some forms of crime results in leaving out others However, once again, there is no acknowledgment of the inevitable conflicts, no reference to human rights, and no reference to appropriate international documents (e.g European Convention on Human Rights, United Nations Convention on the Rights of the Child) Unrealistic aims should not be set for individual decisions in the criminal justice system We saw earlier2 that only a small proportion of crimes come before the courts for a sentencing decision – around per cent on Home Office figures Even granted that publicity may make it appear that the courts are dealing with a higher proportion than this, the potential of sentencing for altering the frequency and patterns of offending in society is severely handicapped by the fact that relatively few offences result in the passing of a sentence However, it may be assumed that sentencing fulfils an indispensable public function within the criminal justice system: without the panoply of police, penal agents and courts, there would surely be more crime There is at least some evidence that law and order would break down in the absence of police, for example.3 But it does not follow from any of this that increases in sentence levels will bring about increases in general crime prevention, as we shall see in the discussion of deterrence theory in part 3.3.2 below The conscientious pursuit of crime prevention is, however, a worthy objective of a criminal justice system as a whole, and considerable developments have taken place Since at least the early 1980s the Home Office has devoted considerable attention In ch 1.4 above Evidence for this might be derived from the spread of lawbreaking, mostly property offences, during the police strikes in Melbourne in 1918 and Liverpool in 1919, and during the immobilization of the Danish police force in 1944 It is argued by Mathiesen (1990), pp 62–3, that these were such atypical situations that they leave the propositions in the text as unsupported assertions 3.1 The aims of the criminal justice system to different forms of crime prevention, in order to identify and to carry forward the most effective methods of crime prevention Some of these begin with family planning and parenting, through pre-school facilities to the identification and monitoring of children ‘at risk’ of offending.4 Then there is situational crime prevention, which the Home Office has long encouraged through a variety of initiatives, such as altering the designs of buildings or vehicles in order to reduce the opportunity for certain kinds of crime This ‘target-hardening’ approach has been used to increase surveillance (e.g the now widespread use of cameras in public places, on public transport and in shopping centres), to make houses more secure against burglars, and so forth.5 A further possibility is social crime prevention, although in the present government’s policy this is often termed ‘community crime prevention’ and includes ‘zero tolerance’ approaches to incivilities as well as improvements to housing, social and recreational facilities, education and employment.6 Techniques of policing may also offer possibilities for crime prevention, although the prospects of success are often grossly overestimated by references to ‘more police on the beat’ as a solution to alleged increases in the crime rate There is, however, evidence that in some circumstances certain techniques of policing can bring crime prevention benefits.7 There is much promise in some crime prevention strategies, insofar as they are shown to reduce crime and thereby reduce the load on the law enforcement agencies and the labelling of people as offenders The history of ‘auto-crime’ shows the considerable impact of introducing steering locks in the 1960s in reducing thefts and takings of cars – a far more significant reduction than could have been achieved by all but the most draconian sentencing policy – and in the 1990s motor manufacturers co-operated in improving car security as part of a renewed effort against these types of crime However, although some crime prevention strategies appear so promising that they should be pursued with much greater vigour than at present, there are at least three drawbacks which must be borne in mind One is that the number of small local projects far outstrips the amount of careful and rigorous evaluation Schemes are often difficult to evaluate, and not just because one has to investigate possible ‘displacement’ effects, in the shape of lawbreaking of other kinds or in other areas The political attractions of crime prevention initiatives are sometimes allowed to run ahead of proper assessments of their effectiveness.8 A second danger is that the schemes will be used to spread the net of social control, promoting socalled ‘community’ initiatives in a way which increases state control over individuals, families and neighbourhoods and therefore brings other disadvantages Insufficient attention has been paid to ethical issues in crime prevention, raised by a number of techniques (such as CCTV) A third unwelcome consequence is that situational approaches might conduce to the mentality of a ‘fortress’ society, surrounded by locks, bars and unbreakable articles This might heighten fear of crime, even if it reduces objective risk Despite these drawbacks, it remains the best policy to try Graham (1998) Jordan (1998) Ekblom (1998), Pease (1998) Hope (1998) For an overview and critical discussion, see Bottoms (1990) 69 70 Sentencing aims, principles and policies to prevent crime before it occurs, so long as this can be achieved within a rightsbased framework However, when the government abandoned its much-trumpeted 10-year Crime Reduction Programme in 2002, after only three years, it was evident that the main source of disappointment stemmed from setting over-ambitious targets too quickly, without proper monitoring and evaluation.9 If prevention does not work, then the state must be prepared to respond to an offence that has been committed The immediate danger is that sentencing will be expected to function efficiently as a crime prevention mechanism, when there are well-documented reasons why this may not happen Two clear reasons why sentencing and crime rates may vary independently are (i) that crime rates are affected by demographic factors such as the age profile of the population and by changes in the availability of desirable and stealable goods (such as mobile phones); (ii) that fewer than half of all crimes are reported to the police, as we saw in Chapter 1.4 above.10 When there is a formal response to an offence this does not always mean prosecution–conviction–sentence, since, as we saw in Chapter 1.4, there are various methods of diversion available For those cases that are brought to court, however, sentencing is a process that has considerable social significance in its own right Conviction involves the public labelling of people as offenders The sentencing decision can often be seen as the core of the labelling or censuring process by giving a judgment of ‘how bad’ the offence was, and by translating that judgment into the particular penal currency of this country at this time Sentencing has an expressive function and, as Durkheim argued, ‘the best punishment is that which puts the blame in the most expressive but least costly form possible’.11 This expressive or censuring function is carried out by means of imposing coercive measures on convicted offenders The imposition of punishment requires justification We should not be satisfied with the proposition that anyone who commits any offence forfeits all rights, and may be dealt with by the state in whatever manner the courts decree That would be to suggest that any convicted person is at the disposal of the criminal justice system, and has no relevant rights Instead, we should seek strong justifications for contemporary sentencing practices, not least because of the increasing use of imprisonment and the greater restrictiveness of non-custodial sentences in many countries But before turning to consider the possible rationales for sentencing, it is first necessary to say something about the institution of state punishment 3.2 Justifying state punishment Whence does the state acquire its right to punish, and what sustains it? A proper answer to these questions would require a substantial foray into political philosophy Maguire (2004) 10 See further Bottoms (2004), pp 60–1 11 Quoted in Garland (1990), p 46 3.2 Justifying state punishment All that can be done here is to sketch some of the lines of justification.12 It is often assumed that the right to punish is simply one aspect of the modern sovereign state, but any such assumption is disputed by those who proclaim that victims and their families, or victims and communities (through restorative justice), ought to be central to responses to crime.13 Justifications for assigning the central role to the state are often derived from social contract theories, the essence of which is that citizens give up their ‘natural’ right to use force against those who attack their interests and hand it over to the state, in return for the state’s promise to protect them by maintaining law and order.14 Citizens retain a limited right of self-defence, but apart from that the state takes charge of enforcing the law, maintaining courts and providing the institutions of punishment Without some such idea of contract, the co-operation on which society rests could not be attained, it is argued The state then has the responsibility of ensuring peaceable co-operation, and one aspect of that is to establish a category of wrongs that amount to crimes It is the state’s task to provide police, prosecutors and courts to respond to these wrongs Individual victims may bring civil actions against the perpetrators, but it is in principle for the state to prosecute and (on conviction) to provide the institutions of sentencing Another approach would be to justify the state’s role in punishment by reference to the need to displace individual revenge and retaliation by maintaining a social practice that constitutes an independent and authoritative response to crime.15 This does not constitute the state as a ‘proxy retaliator’: the state has the duty to act with justice and with humanity in discharging the function of punishment, and often there may be a ‘displacement gap’ between what the public or the media would like to see by way of punishment, and what the state’s institutions can and should provide Regulating that gap and its social consequences is one of the modern state’s more difficult obligations The importance of punishment being in the hands of state institutions rather than victims or other individuals resides in rule-of-law values Decisions on punishment should be taken by an independent and impartial tribunal, not by individuals with an emotional involvement in the events The outcome should not be dependent on whether the victim is vengeful or forgiving, but should be dependent on the impartial application of settled principles, notably principles that recognize the offender as a citizen capable of choice and that regard proportionality of sentence to offence as a key value.16 The state therefore has the role of providing the institutions for an authoritative response to wrongs, which constitute a public valuation of the offender’s conduct.17 Sometimes these notions are expressed in terms of the state and its courts being more ‘objective’ than victims and their families, but one must 12 13 14 15 17 For accessible discussions, see MacCormick and Garland (1998), Gardner (1998) and Duff (2001) E.g Christie (1977) See MacCormick and Garland (1998) for discussion and variations on this theme Gardner (1998) 16 Ashworth (2002) See further von Hirsch and Ashworth (2005), ch 71 72 Sentencing aims, principles and policies beware of the concept of objectivity here Issues of crime and punishment have become intensely political in recent years and, even if sentences are objective in the sense that they are not chosen by victims or their representatives, they are not objective in the sense of being free from the political posturing or vote-catching policies that have tended to shape sentencing legislation (and therefore judicial sentencing) in recent decades Thus whether one takes the justification for state punishment to be an aspect of the idea of a social contract, or (more pragmatically) to be the carrying out of a displacement function that is essential to social co-operation, there are problems in translating the justification to any particular criminal justice system There are many signs of what David Garland has termed ‘the decline of the sovereign State’,18 and, even if some of his analysis is less compelling than it might appear,19 it is surely true that the simple model in which the state provides for the security of its subjects is not sustainable in many countries Responsibility is being devolved to private entrepreneurs and to local authorities, and crime is perceived as a major social problem still At some times in some countries, the legitimacy of the state and its institutions suffers collapse, and those dire circumstances would force reconsideration of the basic principles.20 Thus we might conclude with Antony Duff that, although there may be justifications for the state taking responsibility for criminal justice, they are contingent on the state fulfilling its side of the agreement,21 and in many countries that is in doubt This area of doubt makes it all the more important to scrutinize the justifications for sentencing policy in general, for the types of sentence that are used, and for the conditions that they impose on offenders 3.3 The rationales of sentencing 3.3.1 The argument for declaring a primary rationale When judges are discussing sentencing, one of the most frequent topics is discretion Some of the constitutional dimensions were mentioned in Chapter 2, but another dimension is the constant tension between flexibility and the rule of law There are many who would agree that sentencers ought to have sufficient discretion to take account of the peculiar facts of individual cases So be it But does that remove the argument for bringing the rule of law as far into sentencing decisions as possible? The rule of law, in this context, means that judicial decisions should be taken openly and by reference to standards declared in advance.22 It is one thing to agree that judges should be left with discretion, so they may adjust the sentence to fit the particular combination of facts in an individual case It is quite another to suggest that judges should be free to choose what rationale of sentencing to adopt in particular cases or types of case Freedom to select from among the various 18 Garland (2000) 19 Zedner (2002) 20 For references, see Ashworth (2002b), pp 580–1 21 Duff (2001), p 197 22 Raz (1979), ch 11 3.3 The rationales of sentencing rationales is a freedom to determine policy, not a freedom to respond to unusual combinations of facts It is more of a licence to judges to pursue their own penal philosophies than an encouragement to respond sensitively to the facts of each case It is fairly well established that a major source of disparity in sentencing is the difference in penal philosophies among judges and magistrates.23 Yet many judges and magistrates place great importance on the freedom to pursue whatever approach they think appropriate ‘on the facts of the case’.24 One notable decision of the Supreme Court of Victoria expresses what many judges may believe: The purposes of punishment are manifold and each element will assume a different significance not only in different crimes but in the individual commission of each crime Ultimately every sentence imposed represents a sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process.25 The inscrutable idea of an ‘instinctive synthesis’ comes close to another notion, which is that the various aims of sentencing should be ‘balanced’ in each case Indeed, the Sentencing Reform Act of 1984 in the United States required the US Sentencing Commission to devise guidelines that reflected proportionality, deterrence, public protection and offenders’ treatment needs – aims that were listed without recognition that they conflict, and that priorities must be established If there is thought to be some value in each of these purposes, what should be done? It is often assumed that there are only two alternative courses: either (i) to declare a single rationale, or (ii) to allow sentencers a fairly free choice among several rationales Critics of the first approach argue that it is too rigid, especially when there is such a wide range of crimes and criminals They may then assume that the second approach is the only ‘realistic’ one They may argue that the second approach is more ‘balanced’ or is ‘multi-faceted’, thereby contrasting its practicality with the academic, even ascetic regime of a single rationale But there is a third possibility, which is both practical and consistent with the rule of law: (iii) to declare a primary rationale, and to provide that in certain types of case one or another rationale might be given priority This approach has been operating in Sweden since 1989, with desert or proportionality as the primary rationale and other aims having priority in certain types of case.26 It was also the approach embodied in the Criminal Justice Act 1991, with desert as the primary rationale and incapacitation having priority in certain types of case And it received the approval of the Council of Europe in its recommendation on ‘Consistency in Sentencing’: 23 See Hogarth (1971), cited in ch 1.6 above, and the wider review of research by the Canadian Sentencing Commission (1987), para 4.1.2 24 See ch 1.6 above on this concept 25 Williscroft [1975] VR 292, at pp 299–300; see also Young [1990] VR 951 26 For the text of the law in English, see von Hirsch and Jareborg (1989); for discussion, see Jareborg (1995) 73 74 Sentencing aims, principles and policies A.1 The legislator, or other competent authorities where constitutional principles and legal traditions so allow, should endeavour to declare the rationales for sentencing A.2 Where necessary, and in particular where different rationales may be in conflict, indications should be given of ways of establishing possible priorities in the application of such rationales for sentencing A.3 Where possible, and in particular for certain classes of offences or offenders, a primary rationale should be declared.27 However, the government appears not to regard itself as bound by this kind of clearly structured approach The scheme of the 1991 Act has been abandoned, and in its place we have a law that seems to embody the worst of ‘pick-and-mix’ sentencing Section 142 of the Criminal Justice Act 2003 provides: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing – (a) (b) (c) (d) (e) the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by their offences This invites inconsistency, by requiring judges to consider a variety of different purposes and then, presumably, to give priority to one However, it seems possible that its effect will be blunted by another provision in the 2003 Act, which the Sentencing Guidelines Council has adopted as the touchstone for its guidelines Thus, having set out the terms of s 142, the Council goes on to state that ‘the sentencer must start by considering the seriousness of the offence’, and then quotes s 143(1): In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused The remainder of the Council’s guideline on Overarching Principles focuses on the proportionality principle in s 143, without returning to s 142, and makes it clear that s 143 will underpin the guidelines it issues.28 It remains to be seen how closely the guidelines are followed, and what happens to any judge or magistrate who purports to ‘have regard to’ one of the purposes in s 142 rather than to the guidelines.29 The enactment of s 142 makes it all the more important to examine six contemporary rationales of sentencing: deterrence, rehabilitation, incapacitation, desert, 27 Council of Europe (1993), p 28 SGC, Overarching Principles – Seriousness (2004) 29 It should be mentioned that s 142 does not apply to the sentencing of offenders under 18 However, there are also conflicting rationales in respect of them – s 37 of the Crime and Disorder Act 1998 states that the aim should be ‘to prevent offending by children and young persons’, whereas s 44 of the Children and Young Persons Act 1933 enjoins courts to ‘have regard to the welfare of the child or young person’ See further ch 12.1 below 3.3 The rationales of sentencing social theories, and reparation or restoration Each of these aims has a considerable philosophical background and penological context, which cannot be set out in full here Readers are referred to a recent anthology of readings, with commentary and bibliography, for further study.30 3.3.2 Deterrence31 Deterrence is one of several rationales of punishment which may be described as ‘consequentialist’, in the sense that it looks to the preventive consequences of sentences In fact, deterrence is merely one possible method of producing crime prevention through sentencing: it relies on threats and fear, whereas rehabilitation and incapacitation adopt different methods of trying to achieve a similar end, as we shall see below It is important to draw the distinction between individual (or special) deterrence and general deterrence The latter aims at deterring other people from committing this kind of offence, whereas individual deterrence is concerned with deterring this particular person from reoffending A system which regards individual deterrence as the main goal would presumably escalate sentences for persistent offenders, on the reasoning that if non-custodial penalties fail to deter then custody must be tried, and if one year’s custody fails to deter, two years must be tried, and so on It is not the gravity of the crime but the propensity to reoffend which should be the main determinant of the sentence Although this approach seems to underlie the latest provision on persistent offenders,32 it is rarely adopted as the primary rationale of a sentencing system More significant is general deterrence Jeremy Bentham was its chief proponent, and he started from the position that all punishment is pain and should therefore be avoided However, punishment might be justified if the benefits (in terms of general deterrence) would outweigh the pain inflicted on the offender punished, and if the same benefits could not be achieved by non-punitive methods Sentences should therefore be calculated to be sufficient to deter others from committing this kind of offence, no more and no less The assumption is that citizens are rational beings, who will adjust their conduct according to the disincentives provided by sentencing law The same assumption leads to a belief in marginal deterrence – that increasing penalty levels by a certain amount will result in a decline in offending Modern economic theorists such as Richard Posner adopt a similar approach, viewing punishments as a kind of pricing system.33 Less sweeping is the rational choice perspective, adopted by criminologists such as Ronald Clarke as an explanation of certain types of offending and used to generate specific preventive strategies The argument is that particular types of crime tend to result from a form of rational calculation (usually termed ‘bounded rationality’), and that the responses to such crimes should take account of this and combat it.34 30 32 33 34 Von Hirsch and Ashworth (1998) 31 Von Hirsch and Ashworth (1998), ch S 143(2) of the 2003 Act, analyzed in ch 6.3.2 below Posner (1985), excerpted in von Hirsch and Ashworth (1998), ch 2; see also Pyle (1995) Cornish and Clarke (1986) 75 76 Sentencing aims, principles and policies Criticisms of deterrence theory may be divided into the empirical and the principled The main empirical criticism is that the factual data on which a deterrent system must be founded not exist Reliable findings about the marginal general deterrent effects of various types and levels of penalty for various crimes are hard to find For example, sophisticated techniques have been applied in attempts to assess the deterrent efficacy of the death penalty, without yielding clear and reliable results.35 A necessary element in research is a proper definition of deterrence, to establish that fear of the legal penalty was the particular factor that led to avoidance of the proscribed conduct Deterrence must operate (if at all) through the potential offenders’ minds, so it is essential that they know about the severity of the probable sentence, take this into account when deciding whether to offend, believe that there is a non-negligible risk of being caught, believe that the penalty will be applied to them if caught and sentenced, and refrain from offending for these reasons.36 These subjective beliefs are vital components in the operation of deterrent policies, and all must therefore be investigated if research is to be reliable Few studies satisfy these criteria, and they provide no basis for sentencing policies that involve increasing severity in order to reduce offending levels This was the major finding of the Cambridge study, commissioned by the Home Office, although it did find that there was better evidence of the deterrent effect of a (believed) high risk of detection than of (believed) penalties.37 The Halliday report reviewed the evidence and also concluded that the limited evidence ‘provides no basis for making a causal connection between variations in sentence severity and differences in deterrent effects’.38 A subsequent international review by Doob and Webster recognized the intuitive attraction of the deterrent hypothesis but still found that the evidence indicated ‘that sentence severity has no effect on the level of crime in society’.39 There is a little research which suggests that certain forms of offence which tend to be committed by people who plan and think ahead may be susceptible to deterrent sentencing strategies: Richard Harding, for example, found that robbers tended to desist from arming themselves with guns if there was a significant extra penalty for carrying a firearm.40 This may be taken to bear out the proposition that general deterrence is more likely to be effective for planned or ‘professional’ than for impulsive crimes, although Harding argues that deterrent sentences need to be combined with publicity and appropriate ‘social learning’ opportunities if they are to have significant preventive effects A counterpoint is provided by David Riley’s study of drink drivers, in which he shows that the problems of a general deterrent strategy lie in drivers’ optimism about the risk of being caught, ignorance of the penalty, and ignorance of the amount of alcohol consumption needed to commit an offence.41 Further studies have examined the potential deterrent effect of increased enforcement by the police, but it seems that a general crime prevention 35 Hood (2002), ch 36 See Bottoms (2004), p 65 37 Von Hirsch et al (1999), chs and 38 Halliday (2001), p 129 39 Doob and Webster (2003), p 143 40 Harding (1990) 41 Riley (1985) ... MacCormick and Garland (1998) for discussion and variations on this theme Gardner (1998) 16 Ashworth (2002) See further von Hirsch and Ashworth (2005), ch 71 72 Sentencing aims, principles and policies. .. Hirsch and Jareborg (1989); for discussion, see Jareborg (1995) 73 74 Sentencing aims, principles and policies A.1 The legislator, or other competent authorities where constitutional principles and. .. Sentencing aims, principles and policies This generalized purpose does not recognize that different stages may have their distinct aims and purposes It needs supplementing with more focused aims,