Sentencing Reform: Panels,
Commissions, Councils and
Guidelines
Professor Neil Hutton
Centre for Sentencing Research
University of Strathclyde
Selected Chronology of Sentencing
Reform
1980 Minnesota Sentencing Guidelines
1984 US Sentencing Reform Act
1987 Canada Sentencing Commission Report
1987 Canada Sentencing Information System
1990 New South Wales Sentencing Information System
1998 England and Wales Sentencing Advisory Panel
2000 South Africa Law Commission Sentencing Framework Bill
2002 Scotland Sentencing Information System for the High Court
2002 New South Wales Sentencing Council
2003 Victorian Sentencing Advisory Council
2003 Sentencing Commission for Scotland
2003 England and Wales Sentencing Guidelines Council
2007 New Zealand Sentencing Council Act
Reasons for Sentencing Reform
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Criminal Sentences: Law without Order. Marvin Frankel (1972)
Perceived lack of consistency
Unwarranted disparities (racial bias)
Indeterminacy (Truth in Sentencing)
Lack of Legislative Input in Sentencing Policy(Democratic deficit
Ashworth)
Inadequacies of Judicial Guidance
Diminishing Public Confidence in Courts
Law and Order politics
Accountability and Transparency
Lack of predictability makes management of penal resources difficult
Fiscal pressures on criminal justice budgets/Cost effectiveness
Who has, or should have,
authority over sentencing?
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Decide on sentence at first
instance
Decide on sentence on appeal
Issue sentencing guidelines for
particular category of offence
Issue sentencing guidelines on
types of sentence
Issue sentencing guidelines on
general principles
Develop sentencing policy
Ensure efficient and effective use
of penal resources
Ensure that supply and demand
for prison places are balanced
Source Ashworth 2008
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Trial judge
Appeal Court judge
Appeal Court Judge Sentencing
Council
Sentencing Council
Sentencing Council
Sentencing Council
Sentencing Council
Sentencing Council
Government/Executive/Legislature
Sentencing Council
Government/Executive/Legislature
Sentencing Council
Government/Executive/Legislature
Judicial Independence
• “Judges should decide individual cases impartially
without interference from or control by any other branch
of government. However, it does not follow that it is
exclusively for judges to determine the details of the
overarching framework. If the legislature is
constitutionally able to prescribe maximum, mandatory
or mandatory minimum penalties, it is equally
constitutionally able to dictate the nature or range of
penalties that ought to be applied in the ordinary run of
cases. The fact that it has not traditionally done so has
been a matter of political preference, not constitutional
principle.”
Source: Young 2008 New Zealand Law Reform
Commission
Judges as Policy Makers?
• Judges should not make
social policy, that is a
matter for Parliament and
the executive.
• Judicial decisions should
not have to take into
account issues of cost
effectiveness
• Judges make sentencing
policy de facto through
their decisions
• Like other social goods
such as health and
education, punishment is
not free. Government has
a responsibility to ensure
that scarce penal
resources are allocated to
derive maximum
efficiency and
effectiveness
Why have Sentencing
Institutions?
• Sentencing is too complex to allow for
legislative guidance
• Institution allows judges to work with
others to develop workable guidelines
• Provides a forum for the development of
rational policy, one step removed from the
febrile world of law and order politics
What kind of Guidelines?
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USA numerical grids
Australia advisory councils
England Narrative guidelines incremental
New Zealand Comprehensive narrative
guidelines
• South Africa Guidelines narrative and
numerical
• Scotland ?
Do Guidelines Work?
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US Sentencing Commission
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Minnesota Guidelines
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Insufficiently insulated from Govt
Guidelines too complex
Insufficient room for discretion
Unjustified increase in sentencing
severity
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Reduced unwarranted disparity
Retained sufficient judicial discretion to
consider case facts
Controlled prison growth and avoided
overcrowding
Set priorities for use of limited prison
capacity
Created sentencing jurisprudence
through appellate review which in turn
contributed to development of
sentencing policy by Legislature and
Commission
Promoted transparency in sentencing
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Frase 2008
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Stith and Cabranes 1998
Gertner 2008
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Proposals for a Scottish
Sentencing Council
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Membership
Lord Justice Clerk
High Court Judge
2 Sheriffs
Justice of the Peace or Stipendiary Magistrate
Prosecutor
Constable
Advocate
Solicitor
Person with knowledge of issues faced by victims of crime
2 lay persons
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Judicial and Legal members appointed by Lord Justice General
Lay members appointed by Scottish Ministers
Provisions for Scottish Sentencing
Council in Criminal Justice and
Licensing (Scotland) Bill
• 1. Purposes and principles of sentencing
• 2 Guidelines to take precedence over
above.
3 Objectives
• Promote consistency
• Assist development of policy
• Promote greater awareness and
understanding of sentencing policy and
practice
5 Functions of sentencing
guidelines
• Principles and purposes of sentencing
• Sentencing levels
• Sentences for particular types of offence
or offender
• Circumstances in which guidelines may be
departed from
5 contd
• Guidelines must include
• Assessment of costs and benefits
• Likely effects on prison population
• Likely impact on demand for community
sanctions
• Likely impact on criminal justice system
more generally
6 Procedure for Publication and
Review of Guidelines
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Council must publish draft
Must consult:
Scottish Ministers
Lord Advocate
Such other persons as appropriate
• Must include assessment of impacts
• In finalising guidelines Council must “have
regard to comments made in consultation”.
7 Effect of guidelines
• Court must have regard to applicable
guidelines
• Reasons must be given for departures
from guidelines
8 Ministers Power to request
review
• Ministers can request review
• Council must have regard to this request
• Reasons must be given if Council decides
not to comply with the request
High Court’s Power to request
review of Guidelines
• High Court may refer guidelines to Council
and ask for review when:
• High Court decides not to follow guidelines
• High Court concludes that guidelines do
not deal adequately with a significant issue
raised by an appeal.
• High Court must provide reasons and the
SCS to provide information to
Council
• SCS must provide Council with such
information as it may reasonably require
for the purposes of its functions
• Information must be provided in such form
and by such means as the Council may
require.
Challenges for a Scottish
Sentencing Council
• Is the proposed relationship between the Council, the Scottish
Ministers and the Court of Appeal correct?
• Should the executive have a non-voting observer on the Council as
in England and Wales?
• Is the proposed scope of the guidelines correct? For example, does
the Council have the power to authorise an inaugural set of
comprehensive guidelines or is the intention that an incremental
approach similar to England and Wales be adopted?
• Is the existing data collected by SCS adequate to support the
functions of the Council?
• What information will be necessary to assess the costs and benefits
of proposed guidelines? Is there adequate data currently available to
evaluate the impact of proposed guidelines on prison or community
sanctions?
• What process should the Council adopt to decide on the
prioritisation of its work?
• Is there scope within the provisions of this Bill for adequate account
of criminal history to be taken into account in the drafting of
guidelines?