Clothing the Emperor: Towards a Jurisprudence of Sentencing
| Author | Jeff Smith |
| DOI | 10.1177/000486589703000204 |
| Published date | 01 August 1997 |
| Date | 01 August 1997 |
| Subject Matter | Articles |
Clothing the Emperor: Towards a
Jurisprudence of Sentencing*
Jeff
Smlttt:
This
paper
initiallyset out to analyse sentencing decisions
for
drug offences
in orderto distl7a set
of
principles
or
jurisprudential values in a core area
of
criminality. Instead, it found that the cases tevour a negation
of
principle;
what is called an anti-jurisprudential jurisprudence. This jurisprudential
void -it is argued-owes much to the pervasiveness
of
liberal ideology.
Moreover, it is suggested that the flexibility
of
liberal ideology helps to
explain the lack
of
a consistent moral framework
wl1hin
which sentencing
decisions can be placed. Thefinal
part
of
the article thus takes seriously the
idea that the search for an overarching theory
of
punishmentis futile. Rather,
it is arguedthere is a needto focus on discrete forms
of
criminalconductas
a foundation for generating discrete moral theories
of
punishment. Put
another
wa~
the article suggests that we needto think aboutjurisprudences
of
sentencing.
Introduction
Debates over punishment have rarely ventured beyond the well-established
parameters of retribution, deterrence, prevention and reformation.1This article
questions the idea that a contemporary jurisprudence of sentencing is
underpinned by these traditional aims, goals or purposes of punishment.
Rather, it identifies a jurisprudence
'of
sorts' or an anti-jurisprudential
jurisprudence that owes both its strengths and weaknesses to liberal
philosophy and is located centrally within that tradition.
This is not to suggest that resonances of the traditional purposes or theories
of punishment are not widely evident or, indeed, that the sentencing process
is simply a charade. Rather, the argument shall be made that justifications such
as deterrence, retribution and rehabilitation are closely tied to liberal
assumptions about the individual and society in contemporary debates.
Moreover, it seeks to demonstrate how (and why) instrumental rationality
pervades modem sentencing practices and how 'moral' approaches are often
subsumed beneath such rationality or, at best, applied inconsistently.
The final part of the article also suggests that - considered at this level of
abstraction - the reification of the traditional aims or purposes tells us
nothing and is based on a false premise as to what the criminal law 'is'. The
development of a jurisprudence of sentencing (or, more precisely,
jurisprudences of sentencing) requires an attention to detail and specific
analysis which is necessarily lacking in overarching moral theories. Specific
analysis - it is argued - can be used to generate discrete moral theories of
punishment in relation to discrete forms of criminal conduct. It is perhaps trite
to highlight that questions of sentencing and punishment cannot be answered
in the abstract or that there is a need for an analysis which is both historically
*Received: 1 June 1995; accepted in revised form: 7 January 1997.
tVisiting Fellow, Faculty of Law, University of New South Wales, Sydney 2052.
168
Clothing the Emperor: Towards a Jurisprudence of Sentencing 169
and culturally specific. However, a further demand is made here: this article
posits that a meaningful jurisprudence can only be generated through an
examination of contemporary sentencing theories and practices which is
issue - or, arguably, offence - specific. Recent work in the field of criminal
law has been devoted to, inter alia, the deconstruction of a 'general principles'
approach to substantive criminal law (see, for example, Brown et al 1996;
Lacey et al 1990; Alldridge 1990). This work has widespread implications for
sentencing. It would seem that such implications have not been fully realised
or tested in relation to sentencing (a problem, of course, not confined to
sentencing).
Parameters and methodology
To this end, this article examines sentencing jurisprudence vis-a-vis drug
offences in New South Wales between 1989 and 1993. This was done through
the Sentencing Information System (hereafter SIS) database. This system was
established by the New South Wales Judicial Commission as part of its
mandate to achieve a degree
of
consistency in the sentencing arena.' It
contains a number of databases which broadly reflect both an empirical
component (the statistical database) and a practical and/or theoretical
component, containing the full text of Court of Criminal Appeal judgments as
well as summaries of cases and principles (the Sentencing Appeal Cases
database). As part of its focus on jurisprudential questions, this paper looked
at all drug-related cases available under the Sentencing Appeal Cases
component. The overwhelming majority of these cases (36 in all) were New
South Wales Court of Criminal Appeal judgments." The offences ranged from
possession of 'Ecstasy' to armed robbery (under the influence of drugs) to
importation of heroin. As might be expected, however, the cases formed a
cluster around the 'top end' of the spectrum of serious drug offences.
At a general level, the archetypal case could be described as the supply or
trafficking of heroin. There was also a small number of cases which were only
concerned with drugs in a peripheral
way."
Consideration was given to
focussing on a more specific offence and/or substance (for example, drug
trafficking and/or heroin). While it is recognised that such distinctions are
crucial in sentencing decisions, this approach was not adopted for several
reasons. First, this article is primarily concerned with theoretical issues, not
empirical analysis. The purposes of analysing the cases are essentially
twofold: on the one hand, to provide the raw data from which any such theory
is to spring; on the other hand, to highlight and sustain the argument below
that a meaningful jurisprudence can only be generated within specific classes
of offences. Second, the fact that the cases were drawn from the SIS database
imposes its own unity. In short, these are the same cases that the judges had
before them on the subject-matter of drugs.
This paper originally set out to expose a disjuncture between sentencing
considerations applied in summary justice and general sentencing principles.
This was to be done through examining Court of Criminal Appeal decisions
and juxtaposing the theory pronounced with the practices of Local Courts. The
focus of this paper has changed for a variety of reasons. Empirical concerns
originally prompted this change. First, Court of Criminal Appeal judgments on
drug offences are rare. From the SIS, 36 cases on drugs were extracted from
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