Conceptions and Representations of the Sentencing Decision Process

Publication Date01 Sep 1997
AuthorCyrus Tata
DOIhttp://doi.org/10.1111/j.1467-6478.1997.tb00004.x
JOURNAL
OF
LAW
AND
SOCIETY
VOLUME
24,
NUMBER
3,
SEPTEMBER
1997
ISSN:
0263-323X,
pp.
395-420
Conceptions and Representations
of
the Sentencing
Decision Process
CYRUS
TATA*
INTRODUCTION
This article attempts to reflect on the success of attempts by academic
research to understand and explain the sentencing decision process. It iden-
tifies conventional themes in the conception and representation of that
decision process and argues that there are some important difficulties
associated with them and consequently implications for both the findings
of
sentencing research and for approaches to sentencing reform. The article
suggests a possible alternative approach to conceptualizing and representing
the sentencing decision process and also raises questions about the nature
of the discretionary (legal) decision process more generally.
I
will
argue that a predominant tradition in sentencing research is based
on
a
‘legal-analytical’ paradigm which posits legal categories as the starting
point for interpreting sentencing and then attempts to ‘add in’ supposedly
discrete pieces
of
information about a case as if they were independent
‘factors’. An alternative approach, offered by this article, begins from the
recognition that the criminal process constructs and reconstructs cases for
the purpose of sentencing as ‘typical whole case stories’. Although the
implications for sentencing reform, (for example, ‘Guidelines’) and the role
of philosophical justifications
of
punishment
will
be discussed, it is not the
primary aim of this article to suggest either how sentencing ought to be reformed
(or not); nor, to describe how sentencing research should operationalize an
approach based on ‘typical whole case stories’. Rather, my purpose here is
*
Research Fellow, Law School, University
of
Strathclyde, Stenhouse
Building,
173
Cathedral Street, Glasgow
G4
ORQ.
Scotland
An earlier version of this article was presented at the Joint Meetings of the Law and Society
Association and the Research Committee on the Sociology of Law
of
the International
Sociological Association, 10-13 July
1996.
It has since benefited from comments at that meeting
and also from improvements suggested by Simon Halliday, Neil Hutton, and Denise Mina.
I
am grateful to them for their generous assistance.
I
would also like to thank the anonymous
reviewers
of
this article for their helpful comments.
395
0
Blackwell
Publishers
Ltd
1997,
108
Cowley
Road, Oxford
OX4
IJF,
UK
and
350
Main
Stmt,
Maldrn,
MA
02148.
USA
to suggest that there may be a gap between how sentencing decisions are
processed in practice and the conceptual starting points which research has
employed to interpret that practice.
Internationally, over the last twenty-five years there has been a very
substantial body of attempts to try to reform sentencing practise. However,
in practice the successful implementation of reform has been notoriously
difficult to achieve. If we are to try to make sense of this experience then
perhaps we should re-examine some of the predominant assumptions about
the sentencing decision process.
THE SEARCH FOR ‘EXPLANATIONS’
Sentencing is frequently seen as one
of
the clearest examples of an area where
decision-makers enjoy very wide discretion.’ Yet, despite the interest which
it has received from both academic and journalistic investigators, a number
of commentators have noted that we actually possess fairly little under-
standing of the nature of the sentencing decision process.
For
example, Lacey
observes that:
[tlraditionally criminal lawyers have shown little interest in this highly discretionary area,
but
over
the last fifteen years, reporting
of
sentencing
cases
and renewed academic interest
in Britain (to take an example) has revealed the extent
of
judicial and magisterial
discretion and of disparity in its exercise among different judges and magistrates
.
.
.
mhe main focus
of
the debate has been on disparity
.
.
.
concerning what happens rather
than why this is the
case
.
.
.2
Similarly, Rumgay notes that, ‘the explanation for discrepancies within indi-
vidual courts in their treatment of like cases remains el~sive.’~
However, both of these statements seem to imply that it is possible to
divorce a straightforward description of sentencing (what Lacey calls ‘what
happens’) from its explanation (‘why this is the case’). Rather,
I
would
suggest that questions of ‘description’ and ‘explanation’ are rather more inti-
mately connected. The attempt to describe and measure ‘disparity’ necessi-
tates some attempt to explain it through some kind of image of ‘similarity’
between the object of the decision
:
‘cases’.
I
shall suggest that our ability to understand and ‘explain’ (and therefore to
‘describe’) the sentencing process has been limited by a particular set of
assumptions about ‘similarity’ between cases which have produced a limited
conception and representation of the sentencing decision process. I shall suggest
an alternative way of conceptualizing and representing the sentencing pr~cess.~
SENTENCING AS A COMPARATIVE PROCESS
I
would like to begin by emphasizing that the act of sentencing is funda-
mentally a comparative process.
396
C
Blackwell
Publishers
Ltd
IY97

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