Alchemy in sentencing
| Published date | 01 October 2002 |
| Author | Julian V. Roberts |
| DOI | 10.1177/1462474502004004046 |
| Date | 01 October 2002 |
| Subject Matter | Articles |
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
Vol 4(4): 425–442
[1462-4745(200210)4:4;425–442; 027046]
PUNISHMENT
& SOCIETY
Alchemy in sentencing
An analysis of sentencing reform proposals
in England and Wales
JULIAN V. ROBERTS
University of Ottawa, Canada
Abstract
In the summer of 2001, the Home Office issued the Report of the Sentencing Review
containing over 50 recommendations to reform the sentencing and parole systems in
England and Wales. The White Paper, Justice for All, was published in 2002. The
proposals constitute the most significant reform package in decades. A number of these
proposals – such as the creation of a detailed sentencing guideline scheme, new sentenc-
ing options and recommendations to improve public knowledge of sentencing decisions
– could well have a salutary impact on the sentencing process. However, the heart of
the reform package contains an attempt to achieve the impossible: to reconcile within
the same guiding statute (and sentencing guideline scheme) the conflicting sentencing
philosophies of desert and utilitarianism. This article explores some consequences of the
criminal record provisions by reference to the experience with sentencing reform in
North America.
Key Words
criminal record • sentencing reform
INTRODUCTION
Within the past few years, many jurisdictions have launched reviews or reforms of their
sentencing and parole systems. In Australia, the state of Victoria has undertaken a
review of its sentencing provisions, with terms of reference including an examination
of sentencing options and mechanisms by which the sentencing process may incorpo-
rate community views into the sentencing process (see Freiberg, 2001). In the USA,
several states, including New York and Michigan, are currently reviewing their manda-
tory sentencing laws. The state of Iowa recently passed a law giving judges some
discretion in imposing a mandatory sentence of imprisonment for some drug crimes
and certain property crimes including burglary.1 At the federal level, a Bill in the House
of Representatives introduced in May 2001 calls for radical revision of the mandatory
sentences applicable to federal drug offenders.2 (For a review of recent sentencing
425
02 roberts (jk/d) 9/5/02 8:41 AM Page 426
PUNISHMENT AND SOCIETY 4(4)
reform developments in the USA, see Reitz, 2001.) Canada adopted a series of sentenc-
ing reforms in 1996. These amendments included codification of the purpose and prin-
ciples of sentencing, the creation of a new community-based alternative to
imprisonment3 and the introduction of a number of mandatory minimum terms of
imprisonment (see Roberts and Cole, 1999). England and Wales is therefore one of
many jurisdictions grappling with the vexing question of how best to structure the
sentencing of offenders.
The recently published Report of a review of the sentencing framework in England and
Wales (Home Office, 2001; hereafter ‘Report’) contains an ambitious and far-reaching
set of recommendations to reform the sentencing system in England and Wales. A
number of the Sentencing Review’s proposals – such as the creation of a detailed sentenc-
ing guideline scheme, new sentencing options and recommendations to improve public
knowledge of sentencing decisions – could well have a salutary impact on the sentenc-
ing process. However, the heart of the reform package contains an attempt to achieve
the impossible: to reconcile within the same guiding statute (and sentencing guideline
scheme) the conflicting sentencing philosophies of desert and utilitarianism. The Report
is clearly concerned about utilitarian sentencing, as evidenced by its terms of reference
(see below), and indeed by its very title, Making Punishments Work.
If implemented, the Review’s proposals will constitute a watershed in sentencing
policy in England and Wales; they represent a major shift away from the desert-oriented
philosophy which characterized the 1991 Criminal Justice Act (see Wasik and Taylor,
1991 for discussion), and which animated the 1992 Report of the Council of Europe’s
Select Committee of Experts in Sentencing. The Sentencing Review Report proposes to
increase the importance of previous convictions at sentencing while simultaneously
claiming to preserve the desert-based framework and to satisfy the requirements of
proportional sentencing.
Purpose of article
The focus in this article4 is upon the relationship between the just deserts framework
originally embodied in the Criminal Justice Act 1991, but now consolidated in the
Powers of Criminal Courts (Sentencing) Act 2000, and the new proposals relating to a
defendant’s criminal history. I do not deal with the critical question of whether, and to
what extent, the proposals are likely to reduce recidivism rates, although the Report
claims significant reductions will be achieved under its proposed scheme. At the end of
the day, however, that issue may be most determinative of the longevity of any reforms
introduced as a result of the Report. Specifically, I question whether proportional
sentencing can be retained, while increasing significantly the impact of an offender’s
previous convictions on the severity of sentences imposed.
Comparisons are made between the Home Office proposals and the American guide-
line systems, for several reasons. First, by promoting the role of criminal record within
a just deserts framework, the language of the Review’s Report echoes the wording
employed in the federal Sentencing Commission’s guidelines manual which notes that:
‘The Commission decided to emphasize the current offense in establishing standard
sentencing ranges but also to give weight to a person’s past convictions, including the
pattern of those convictions’ (United States Sentencing Commission, 1992: II-56).
Second, the federal sentencing guidelines also follow a ‘cumulative sentencing’ model,
426
02 roberts (jk/d) 9/5/02 8:41 AM Page 427
ROBERTS
Alchemy in sentencing
according to which the severity of the sentence imposed rises in direct proportion to the
seriousness of the offender’s criminal history (see Roberts, 1994, for discussion of the
role of criminal record in the federal guidelines). Third, since recidivist sentencing
enhancements have long existed in all American states (US Department of Justice, 1991)
and all sentencing guideline systems accord a central role to criminal history, there is a
wealth of experience with respect to operationalizing the concept for the purposes of
sentencing.
Terms of reference of the Sentencing Review
The Review’s reform proposals reflect the direction dictated by its terms of references
which required it to consider ‘what changes need to be made to the current sentencing
framework . . . so as more effectively to reduce re-offending’ (Home Office, 2001: x, 70)
– thereby assuming what a more unrestricted review might have set out to determine:
whether utilitarian or deontological considerations should predominate in the sentenc-
ing decision. The terms of reference were in fact, far more limited than sentencing
reviews launched in some other jurisdictions.5 Thus the direction that the Review would
take was effectively sealed by its terms of reference, which favoured crime prevention
through the reduction of recidivism.
The second important influence on the Review appears to have been the question of
public opinion. The Review ties its reform recommendations specifically to the views of
the public when it notes in the Report that: ‘The Review’s assessment of public views
on how sentencing should operate has informed its recommendations for a new framework’
(Home Office, 2001: ii, emphasis added). The Report makes numerous references to the
importance of public opinion in sentencing and actually identifies achieving a satis-
factory level of public confidence as ‘an important goal of sentencing’ (Home Office,
2001: 1).6
Moreover, in discussing the costs and benefits of the proposals, the Report notes that
‘the framework is intended to earn and deserve public confidence’ (Home Office, 2001:
63). The implication is that the public do not fully share the just deserts philosophy
underlying sentencing at the present time, and that modifying the Act to enhance the
role of previous convictions will increase confidence in the courts. Whether this is likely
to occur is open to question (see Roberts, 2002, for further discussion). Finally, the twin
justifications for modifying the sentencing regime were made crystal clear by the Home
Secretary in a speech on sentencing reform in 2001, where he noted that ‘We should
start by asking this fundamental question: What can we do to build a sentencing regime
that enjoys the confidence of the public and reduces crime?’. He also added a ringing
endorsement of the cumulative sentencing model advocated by the Sentencing Review
when he noted that ‘Sentencing should send a clear message that the more you offend,
the greater the punishment you can expect’ (Blunkett, 2001).
Before discussing the Review’s proposals, however, it is necessary to summarize briefly
the current orientation of sentencing in England and Wales. This will be followed by a
description of the Review’s proposals with regard to the role of criminal record in
sentencing. While the actual guideline scheme is not contained in the Report, sufficient
detail is contained therein to determine whether the proposals can realize the goal of
simultaneously enhancing the role of criminal record while retaining the desert orien-
tation of the existing...
To continue reading
Request your trial