Towards Better Sentencing Statistics — A Reply to Austin Lovegrove's Critique
| Author | John Walker,Ivan Potas |
| DOI | 10.1177/000486908301600412 |
| Published date | 01 December 1983 |
| Date | 01 December 1983 |
| Subject Matter | Original Research |
254 (1983) 16
ANZJ
CRIM
TOWARDS BETTER SENTENCING STATISTICS -
AREPLY TO AUSTIN LOVEGROVE'S CRITIQUE
Ivan Potas" and John Walker**
1.
Our
Objectives
In his critique of
our
work Sentencing the Federal
Drug
Offender:
An
Experiment
in
Computer-Aided
Sentencing (Potas and Walker, 1983) Austin Lovegrove begins
by asserting that the principal aim of that study "is to examine the feasibility of
deriving sentencing guidelines empirically". It is hard to imagine where he finds
the
evidence for this assertion. In the first place the word "guidelines" appears only
twice in
our
text (at pp 13 and 97) and three times in the references (Kress 1980,
Wilkins 1980, Wilkins et
at
1978). Our primary aim in fact was to question the
assumption made by the Australian Law Reform Commission in its interim
Report,
Sentencing
of
Federal Offenders
(ALRC
1980) that there is a serious disparity
problem in the sentencing of federal offenders.'
Criticism has been levelled at three sets of sentencing guidelines, ie, those
developed in Denver, Chicago and Newark, that they have failed to distinguish
adequately between two types of decisions, ie, the decision whether to incarcerate
and the decision relating to length of incarceration. (Rich et al, 1982, 85). Rich et
al claim that their analyses of the Denver, Chicago and Newark sentencing
guidelines (the Wilkins-Gottfredson model) show that the two types of decisions are
determined by different sets of factors, whereas the guidelines adopt the same
variables and weights for both decisions. Furthermore, they suggest
that
normal
guidelines models
err
by imposing a common decision-making process on offences
of different types. They comment that
It
is possible, within the general concept of "Structured" discretion, to conceive a more complex, and
perhaps more realistic, decision-making process setting forth explicit, but varying, decision rules for
different types of crimes. Such a process would be able to direct the judge's attention to different factors
in different situations, and likewise to give different weights to the factors depending upon the
other
circumstances present. Such guidelines would have the physical appearance of a sentencing code rather
than a two-dimensional grid. As experimentation continues in the laboratories of the several states, this
and
other
variations upon the Wilkins-Gottfredson mode will undoubtedly appear. (Rich et al, 1982,
XIV)
Accordingly, we were careful to restrict the scope of
our
study to one kind of
offence only - those relating exclusively to charges made under s
233B
of
the
Customs Act 1901, or more particularly, to offences relating to the illegal
importation or exportation of prohibited drugs and to the possession of such illegal
imports or exports. Furthermore we avoided the temptation to compare sentences
imposed under State laws with sentences imposed under Commonwealth law
(although some work in this regard has been undertaken for the State of New South
Wales (Potas, 1983)) in order to restrict our attention to a manageable caseload
involving
one
set of laws applying simultaneously and uniformly to all Australian
States and Territories. Finally, we limited our investigation to the study of
imprisonment lengths thereby effectively excluding an assessment of sentencing
*Criminologist, Australian Institute of Criminology.
>I< >I<
Senior Research Officer, Australian Institute of Criminology.
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