Sentencing Panel 1 and 2 for the Panel Stream of the ESC working
group on sentencing and penal decision-making
Budapest, 2013
Title of Sentencing Panel 1. Structuring sentencing and evidence based regulation
[please note that two presenters are unable to attend the first and the last day respectively]
Chair: Nicky Padfield
1. What is individual about “Individualised Sentencing”?
Neil Hutton
University of Strathclyde, Glasgow
The concept of “individualised sentencing” has a number of different meanings. Most frequently it is
used to refer to the practice of tailoring a sanction to fit the requirements of a particular offender
and/or a particular case and this is often taken as a description of how judges go about making their
sentencing decisions, i.e. as an accurate empirical description of practice. “Individualised sentencing”
can also be considered as a discourse which provides a normative justification for the practice of
sentencing. In this sense individualised sentencing is a discourse which generates or performs “just”
sentencing.
This paper argues that individualised sentencing exaggerates the role of the individual judge in
sentencing and provides an unconvincing empirical account of sentencing practice. However it is a
highly effective and resilient justificatory discourse but with one serious flaw, the inability to articulate
a definition of consistency, an important value in a liberal conception of justice in sentencing.
Sentencing Guidelines can articulate consistency in sentencing. This does not mean that guidelines
produce consistency where it did not exist before nor that guidelines will necessarily cause radical
changes to sentencing practices. A more sociologically informed understanding of sentencing shows
that guidelines enable an account of consistency to be generated which can exist alongside an
individualised definition of justice.
2. Structuring sentencing in international tribunals
P.M. (Pauline) Schuyt
Leiden University
The sentencing decision is one of the most difficult decisions a judge has to make. In many legal
systems this decision must be responded to within a relatively open legal context. This open legal
context – granting a large amount of freedom in sentencing – has a function: it allows the judge to do
justice to the circumstances of each individual case and perpetrator. Judges in special courts, like the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR), also have much freedom in sentencing. It is remarkable – and may be
understandable – that their practices in sentencing differ from national sentencing. For example: in the
Netherlands, the average imprisonment for manslaughter, with one to three victims, is eight to ten
years. Following that line, the average imprisonment for those convicted by an international tribunal for
war crimes, crimes against humanity, genocide etc., with far more than one to three victims, should be
far more than eight to ten years. But it is not.
We were curious about the reasons for that difference and the way this might be explained in the
verdicts of these courts. This could tell us something about factors that are important for sentencing in
this kind of tribunals. In 2010 we developed a framework – the so-called Grammar of Sentencing –
which guides the (Dutch) judge into the sentencing decision making process and offers a way of
clarifying the reasoning behind the sanction. It is a simple, analytical method to systematise the
complex action of sentencing. This grammar consists of five elements for sentencing, that can be
concretized by five questions: what has happened, who did it, how did he do it, which effects occurred
and in which context was the crime committed. Since the context of the crimes under international
tribunals is given (some kind of (civil) war) and there is no doubt about the severity of the crimes, it is
interesting to do research on the question whether this grammar, developed for national practices of
sentencing, suits sentencing by international courts as well. And if so, to compare the factors that are
important in national sentencing and in international sentencing. This paper present the outcomes of
this research.
3. Structuring sentencing – pragmatic style
Rasmus H. Wandall
Faculty of Law, University of Bergen
Regardless of how transnational tendencies to structure sentencing are, any structuring inevitably comes
to life through whatever legal and penal arrangements a local jurisdiction has. This paper adds to the
comparative sentencing literature and seeks to better understand how sentencing structures are
constructed in the interface between transnational developments and local legal arrangements. Like
most Anglo-Saxon sentencing systems, Scandinavian ones are characterised by a drive towards
increased formal structuring and by a tension between the judiciary and the legislator about who should
govern that structuring and what form it should take. Juxtaposing the Danish sentencing arrangements
over the last thirty years with those of England and Wales, the paper explains the development and
construction of three particular legal technologies to structure sentencing in Denmark. First, since 1982,
legal amendments to the Penal Code have been followed by travaux préparatoires, containing welldeveloped narrative as well as numerical sentencing guidance. Second, since 1995 the public prosecution
service has developed a substantial body of guidelines and sentencing tables, binding prosecutors and
guiding judges in a broad range of criminal cases. Third, since 2007 the prosecution service has
developed a dynamic structured database (4000+ cases) of normal sentencing cases, allowing
prosecutors and judges to be governed both horizontally and vertically by earlier case examples.
Combined, these three techniques make up significant sources of sentencing decision-making.
Describing these newer techniques, the paper discusses how the solution to increase structuring of
sentencing in Denmark has avoided new principled institutional frameworks, but instead found
pragmatic solutions in the existing authority of the executive power and in the practically central and
historically neutral role of the public prosecution service.
4. Structured Sentencing Discretion in England and Wales: Lessons for Europe?
Julian V. Roberts, Faculty of Law, University of Oxford
Sentencing guidelines have been developing in England and Wales for over a decade now. As a result
of the creation of the Sentencing Council in 2010, a great deal more is known about the benefits of
sentencing guidelines. When sentencing offenders, English courts now have offence-specific as well as
“generic” guidelines on which to draw. This presentation reviews developments in England and Wales
and draws some lessons for continental European jurisdictions considering the introduction of more
detailed guidance for courts.
5. Corrections and Sentencing in Australia: A Review of the Research on Effectiveness, focusing
on Desistance
James Byrne, Professor and Director and Julianne Webster, Research Fellow
Global Centre for Evidence-based Corrections and Sentencing, School of Criminology and Criminal
Justice, Griffith University
We examine and highlight the findings from the full range of Australia-based research studies on
corrections and sentencing included in the Campbell Collaborative Reviews. We then expand our
search for research evidence to include other forms of Australia-based desistance research not included
in the Campbell Collaborative systematic, evidence-based reviews. Our findings underscore the need
for (1) additional high quality evaluation research on the impact of various corrections and sentencing
strategies in Australia, and (2) the importance of expanding the definition of "evidence" used by
policymakers to include the results from other valuable forms of desistance research.
Title of Sentencing Panel 2. Judicial politics, sentencing policy, and models of penal
decision-making
Chair: Neil Hutton
1. JUDICIAL POLITICS, JUDICIAL REVIEW AND THE PRE-EMPTIVE TURN
CASE OF THE IMPRISONMENT FOR PUBLIC PROTECTION SENTENCE
IN
CRIMINAL JUSTICE: THE
Harry Annison, Centre for Criminology, University of Oxford
State efforts against ‘dangerous offenders’ are long-standing in several European jurisdictions, most
notably Germany (Michaelsen, 2012) and England and Wales (Jacobson and Hough, 2010). Over recent
years, Strasbourg and national courts have increasingly sought to place limits on preventive detention
of such ‘dangerous offenders’ (Brown, 2011; Michaelsen, 2012; Slobogin, 2012). The central role of
these senior courts in shaping the nature and use of such sentences is therefore indisputable. Because
of this and other developments, the senior judiciary’s important role as judicial policymakers is now
generally accepted – albeit to different extents – as self-evident (Malleson, 1999). However,
notwithstanding notable exceptions (Paterson, 1982; Robertson, 1998), discussions of senior judges as
political actors still tend towards the rather blunt class analysis provided by JAG Griffith’s groundbreaking The Politics of the Judiciary (Griffith, 1997). This paper seeks to develop a conception of senior
judiciary activity grounded in the interpretive political analysis of Bevir and Rhodes (Bevir and Rhodes,
2003; 2006) and in particular their concept of ‘tradition’, being ‘a set of understandings someone
receives during socialization’ (Bevir and Rhodes, 2006: 7). Drawing on a range of existing literature and
case law, a British ‘judicial tradition’ and its constituent aspects are thus sketched. This interpretive lens
is applied to the case law of the Imprisonment for Public Protection (IPP) sentence of the Criminal
Justice Act 2003, standing as it does as one of the most far-reaching instantiations of the increasing
creep of ‘precautionary logic’ into the sentencing field in recent years (Dennis and Sullivan, 2012;
Jacobson and Hough, 2010). This exploration draws on an analysis of interviews with five current and
former senior British judges, extra-judicial speeches, articles and relevant case law. The resulting
analysis highlights the tensions within the dominant British judicial tradition and its limitations in
providing the senior judiciary with a coherent framework within which to confront the ‘pre-emptive
turn’ in criminal justice (Zedner, 2009).
2. Legitimacy and Punitiveness: the Role of Judicial Actors in Italian Penality, 19702000
Zelia Gallo, London School of Economics, Law Department, UK
This paper investigates the role of judicial actors in Italian penality between 1970 and 2000. In Italy,
structure, legitimacy and institutional set-up have combined to create a judicial class that is diverse,
independent and directly involved in the political dynamics that shape Italian penality. An institutional
analysis of the Italian judiciary helps us understand these judicial contributions. In particular it reveals
that judicial actors are purveyors of varying penal pressures – both for expansion and containment –
and thus contribute to Italy’s oscillation between repression and leniency.
In this paper I argue that the Italian case also highlights the importance of
factoring judicial legitimacy into our analyses of judicial contributions to national penality. Legitimacy here
is both external – legitimacy vis-à-vis political class and public – and internal – judicial self-conception.
External legitimacy refers to the conditions in which judicial action is seen as legitimate by the political
class and the public: what position on law and order issues is considered legitimate? Internal legitimacy
refers to the conditions in which judicial actors will consider their own action to be legitimate: what
position on law and order issues do they feel free to adopt?
Judicial legitimacy is important beyond the Italian context. It should thus be incorporated into our
analyses of judicial contributions to penal trends. This paper ultimately suggests that, proceeding from
the Italian case, we ask how judicial structure, legitimacy and institutional set-up have combined across
contexts, and how this combination has led judges to convey or resist existing pressures for
‘punitiveness.
3. Judicial Independence: The Master Narrative
Fiona Jamieson,
University of Edinburgh
Despite extensive doctrinal critique, judicial independence is still an opaque concept and its
implications for criminal justice trial and sentencing processes are relatively unexplored. It is a concept
which is difficult to define, often mythologised and reified, and there is some ‘sociological innocence’
about its meanings and effects. Judicial independence is most often discussed in criminal justice and
sentencing research in relation to its first meaning in use, namely the doctrine of the separation of
powers and the rule of law, and in the context of sentencing reform where it is regularly invoked by the
judiciary. The second meaning of judicial independence refers to the impartiality or neutrality of the
individual judge. This usage has implications for everyday practice in the criminal courts, raising
questions about judicial ‘distance’, traditions, challenges and emotions. I draw on my narrative study of
judicial culture to explore some of these aspects of penal practice and consider their implications.
4. Sentencing in England and Wales: what the Offender Rehabilitation Bill 2013 tells us about
the relationship between sentencing law and policy today
Nicky Padfield, Fitzwilliam College, Cambridge
Sentencing law is frequently changed in England and Wales. Whilst the changes introduced by the
Legal Aid Sentencing and Punishment of Offenders Act 2012 have only recently been brought into
force, Parliament is already debating the Offender Rehabilitation Bill 2013 which makes significant
changes, in particular, to the rules on the release, and supervision after release, of offenders, and on the
extensions periods for extended sentence prisoners. This paper will explore the context of the changes,
and whilst welcoming in principle the commitment to 'supervision' on release for all released prisoners,
including for those who have served short sentences, the paper questions the impact these changes will
have on the lives of offenders in practice. The paper contrasts the wording of the Bill with the realities
of supervision. Given the current crisis of funding in the criminal justice system, the presentation
concludes that without a much stronger framework of accountability for all sentencing decisions, which
includes decisions on supervision and recall to prison, as well as funded initiatives to support offenders,
the changes are unlikely to achieve the Government's ambitions for them.
5. Youth justice models in theory and practice. Decision-making by Belgian youth
court judges
Eef Goedseels, Prof. Dr. Johan Put, Prof. Dr. Geert Vervaeke
National Institute of Criminalistics and Criminology & Leuven Institute of Criminology
Youth justice models are often used to describe or compare youth justice systems and policies or to
describe national and cross-national changes over time. This lead often to very general conclusions
whereby abstraction is made of local differences or practices, as well as the sentencing complexity of
everyday life. In our study we try to get an insight in this complexity and to find out if and to what
extent elements of the different theoretical models (welfare, justice/retributive, restorative, actuarial)
can be found in the decision making process of Belgian youth court judges. In other words, can the
daily practice of Belgian youth court judges be described in terms of one or more model(s)? Is one
model (welfare model?) more dominant or do we observe differences in relation to the case, the judge
self and/or the judicial district (local context)? We will present the results of an ethnographic study in
two Flemish judicial districts. Judges were observed and interviewed about their decision-making
process in real cases. Central topics identified through a thorough literature review, in particularly on
youth justice models, are: perception of the offender, degree of individual responsibility, active vs.
passive responsibility,
objective(s)/purpose(s), place of legal safeguards (proportionality,
(in)determinate sentences), role of different actors (lawyer, social service, victim,…).