Reducing Prison Sentencing Through Pre‐Sentence Reports? Why the Quasi‐Market Logic of ‘Selling Alternatives to Custody’ Fails
| Published date | 01 December 2018 |
| DOI | http://doi.org/10.1111/hojo.12276 |
| Author | CYRUS TATA |
| Date | 01 December 2018 |
The Howard Journal Vol57 No 4. December 2018 DOI: 10.1111/hojo.12276
ISSN 2059-1098, pp. 472–494
Reducing Prison Sentencing Through
Pre-Sentence Reports? Why the
Quasi-Market Logic of ‘Selling
Alternatives to Custody’ Fails
CYRUS TATA
Professor of Law and Criminal Justice, Centre for Law, Crime and Justice,
Strathclyde University Law School, Scotland
Abstract: A central aim of successive generations of penal reformers and governments
has been to reduce the use of imprisonment in relatively less serious cases. In their various
guises, pre-sentence reports (PSRs) have been a key vehicle to promote non-custodial
‘alternatives’ to the judicial sentencer. Yet, after decades of pursuing this strategy, a
significant reduction in prison sentencing remains elusive. This article suggests that the
failure of this policy strategy is, at least in part, rooted in its quasi-market logic. It tends
to construct the judicial sentencer as a metaphorical consumer in a penal marketplace,
to whom the report writer must convincingly ‘sell alternatives’ to custody. Applying and
developing theories of consumption as a cultural practice, it is proposed that, by its very
nature, a consumerist model is bound to fail to deliver penal reduction.
Keywords: alternatives to custody; consumer society; consumerism; penal re-
form; pre-sentence reports (PSRs); probation; sentencing
How should prison sentencing in relatively less serious cases be reduced?
To date, the attempt to reduce the use of prison sentencing in less serious
cases has largely relied on a strategy of persuasion through the provision
of information about the individual to be sentenced and the viability of
‘alternatives to custody’ in each case.
This article examines the central role which that policy ascribes to pre-
sentence reports (PSRs), which investigate and provide information and
assessment to the sentencing courts about convicted individuals so as to in-
form judicial sentencing. By scrutinising the tendency of policy-orientated
thinking to think in quasi-market terms of Reports as a way of exerting in-
fluence over sentencing, it reveals how sentencers and Report writers have
tended to be constructed as, respectively,metaphorical consumers and ven-
dors in a competitive penal marketplace. Employing cultural theories of
consumption, the article contends that positioning the judicial sentencer as
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2018 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol57 No 4. December 2018
ISSN 2059-1098, pp. 472–494
a quasi-consumer necessarily cannot yield a reduction in the use of prison
sentencing. Principally contextualised in the two national jurisdictions of
Scotland, and England and Wales, the article raises implications for other
jurisdictions, where Reports are being used in indirect efforts to reduce
the use of prison sentencing.
The article proceeds as follows: the first section charts the development
of Reports in policy-orientated thinking; the second section reveals how
Reports are conceived of in quasi-market terms, setting up the judicial
sentencer as a metaphorical consumer and the Report writer as seller; the
third section examines four acute insights from cultural theories of con-
sumption before developing and applying them in the following section to
the judicial consumption of Reports; the final section sums up key messages
and considers the policy implications for efforts at penal reduction.
The Role of Pre-sentence Reports in the Reduction of Prison Sentencing
In its quest to reduce, or at least moderate, the use of imprisonment as a
sentence in relatively less serious cases, policy thinking has avoided con-
fronting the assumption that sentencing decisions should be ‘owned’ ex-
clusively by the judiciary (Ashworth 2015). In common with other western
countries, successive governments in Scotland, and in England and Wales,
have not, for instance, sought to assert that the judge should head a collab-
orative multidisciplinary partnership working in the sentencing decision
process.
Instead, the trope of the individual member of the judiciary (for brevity
let us use the universally-recognised term ‘judge’),1as possessing sole and
sovereign choice of sentence remains largely assumed. Consequently, pe-
nal policy thinking hinges on an indirect, subtle strategy of persuasion:
alternatives have to be ‘sold’ to the judge. Reports play the central role in
this strategy.The general thrust of policy has been to dissuade judicial sen-
tencers from passing prison sentences in relatively less serious cases, by,for
example, requiring imprisonment to be a ‘last resort’, when nothing else
is considered suitable by the sentencing judge. This injunction is animated
by the requirement that the court should take into account all available
information about the circumstances of the offence and offender.2By con-
textualising the offence and humanising the offender, it is hoped that the
sentencing judge will come to see the offending as explicable (though not
excusable), so rendering imprisonment a more difficult decision. ‘The best
reports offer an account which enables the court to see an offence as intel-
ligible human action, however deplorable, in the context of the individual
circumstances’ (Canton and Dominey 2018, p.88).
Thus, albeit in varying ways over time, Reports tend to be expected by
reformers to do a subtle job of dissuading judicial sentencers from passing
custodial sentences, unless no other sentence is appropriate. By providing
apparently neutral facts to the court about the offender3prior to sentenc-
ing, and about the suitability of different sentencing options,4the broad
policy role of Reports is to contextualise the offence by individualising and
humanising the offender in the eyes of the sentencing judge. This, in turn,
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2018 The Howard League and John Wiley & Sons Ltd
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