'Ritual Individualization': Creative Genius at Sentencing, Mitigation, and Conviction
| Author | Cyrus Tata |
| DOI | http://doi.org/10.1111/jols.12144 |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 1, MARCH 2019
ISSN: 0263-323X, pp. 112±40
`Ritual Individualization': Creative Genius at Sentencing,
Mitigation, and Conviction
Cyrus Tata*
Judges and lawyers must regard themselves as upholding cherished
values, including the presumption of innocence; free defendant choice
and participation; and attention to the unique individual. Yet, everyday
criminal work also demands compliance with a system of perfunctory,
mass case disposal. How is this potential contradiction addressed?
Conceiving the criminal-penal process as a tripartite rite of passage,
the article originates the concept of `Ritual Individualization' (RI).
RI's creative pre-sentencing casework accomplishes four key trans-
formations in how the person is re-presented to the court f or
sentencing. First, the person's unique voice and personal story is
revealed, exhibiting her as a freely participating individual. Secondly,
in doing so, the pertinence of social disadvantage tends to be
minimized. Thirdly, ambiguous admissions of guilt are translated as
freely-given, full, and sincere confessions. Fourthly, the person is
manifested as a culpable offender ready for punishment. The article
considers new research agendas opened up by the implications of
Ritual Individualization.
INTRODUCTION
What do I mean by `Ritual Individualization'? In brief, it is a stylized,
sequential, symbolically meaningful performance, requiring the shared and
heightened attention of court professionals. Through its creative casework, it
manifests to the professional court community that the person proceeded
112
*University of Strathclyde Law School, University of Strathclyde, 16
Richmond St, Glasgow G1 1XQ, Scotland
cyrus.tata@strath.ac.uk
I would like to thank the following for their helpful comments on earlier drafts: Kevin
Cheng, Stewart Field, Louise Johansen, Kathy Mack, Peter Mascini, Mike Nellis, Nicky
Padfield, Sharyn Roach Anleu, Saskia Vermeylen, Javier Velasquez, the three
anonymous journal referees, and members of the Editorial Board.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
against (defendant/convicted person)
1
is treated as a unique individual who
participates freely in the criminal process, which she regards as fair.
I originate the concept of `Ritual Individualization' so as better to
understand the daily practices of the lower and intermediate criminal courts.
2
It is not my intention in this article to take a normative stance, but rather to
advance a deeper understanding of these daily practices. As professionals
responsible for justice, lawyers and judges face every day a potentially
troubling dilemma. How can cases be disposed of efficiently without
violating the central legal norm of free choice and participation exercised by
each unique d efendant ? I will expla in how the pra ctice of Rit ual
Individualization resolves this dilemma.
Since my purpose is to stimulate fresh thinking, I acknowledge at the
outset that my elucidation of the concept of Ritual Individualization is
incomplete in some important respects. For example, its shape is different in
inquisitorial systems ± a point returned to in the conclusion. Nonetheless, by
stimulating fresh thinking, I seek to kindle conceptual and empirical
development by fellow scholars about three key propositions. First, the
competing values of free participation by the unique individual and efficient
case-disposal cannot be satisfactorily resolved by the talk of individual
professionals. Their resolution requires the manifestation of the defendant's
participation and consent to her deserved punishment. Secondly, through the
defendant's demonstrable participation and acceptance of the fairness of the
process, the work of individualizing processes tends to enable, rather than
obstruct, expeditious case disposal. Thirdly, individualization work achieves
case-normalization, thus managing the potential menace of ambiguous or
seemingly defiant defendant postures.
Importantly, successful Ritual Individualization does not denote empty or
meaningless gestures. Nor is it a charade or pretence, nor necessarily
oppressive and degrading. Equally, it should it not be assumed that Ritual
Individualization is necessarily inclusive and empowering. Although such
evaluative judgements are not the purpose of this article, effects on the
person are likely to be contingent and variable.
The `genius' of Ritual Individualization accomplishes status change. By
`genius' I imply neither moral admiration nor sarcastic condemnation.
Rather, I reclaim its older meaning: a protective guiding force or spirit.
3
The
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1 In this article I use the term `person proceeded against' (or more simply `person') to
cover a range of statuses including: `defendant', `accused', `convicted person',
`sentenced person'. Although the term `defendant' is used even after a guilty plea, it
should not be taken too technically: this article concerns the ambiguous status of the
person.
2 The term `lower and intermediate criminal courts' refers to the vast bulk (typically
at least 90 per cent) of first-instance court cases. In most adversarial jurisdiction
countries these are non-jury-triable (summary) cases.
3 Although `genius' is now widely used to refer to virtuoso ability, here the article
recalls its older meaning from the Latin root `gignere' (beget) as a creative and
tutelary (that is, protective) guardian, force or spirit.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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