The judicial role and the communication of sentencing decisions
Sharyn Roach Anleu
Kathy Mack
School of Social and Policy Studies
School of Law
Flinders University
GPO Box 2100
Adelaide, SA 5001
Australia
judicial.research@flinders.edu.au
Abstract for First Symposium of the Sentencing & Penal Decision-Making Working
Group of the European Society of Criminology: ‘Researching the Judicial Role in
European Sentencing: Interactions & Dynamics’ Oxford University, 15th April, 2011.
Sentencing and penal decision-making is a location where legal and social research
cross over and intersect. Conventional legal research draws on legislation and judicial
sentencing remarks, especially in appellate cases, to identify sentencing principles and
law. Much social research examines sentencing patterns, especially over time and
across different jurisdictions and is quantitative and multivariate in style. The patterns,
especially sentencing disparities or departures from guidelines, are then attributed to
judicial discretion or other decision-making behaviour.
Both legal and social research construct concepts or images of the sentencing judge and
judging, primarily as an abstraction, an instrument for applying the law or through
which other norms/values are expressed. Rarely does research directly investigate the
central player—the judge–as a social actor in a social context. New developments that
modify sentencing procedures – notably, problem-oriented courts and therapeutic
jurisprudence -- cast the judge as an active participant, even emotionally engaged with
both the process as well as the substantive outcomes.
Does this signal a new humanisation of judicial decision making and a new research
direction? Perhaps an overstatement. However, our observational study of criminal
matters in Australian lower courts shows ways in which magistrates engage with
defendants when communicating sentencing decisions in a conventional, busy criminal
court.
Magistrates evince a more direct relation to the defendant when delivering sentencing
decisions compared with the delivery of non-sentencing decisions, such as
adjournments and bail. Magistrates convey news about sentence by looking and
speaking directly to the defendant, and the periodic use of informal language, in line
with ordinary, everyday conversational conventions. The findings highlight the strong
link between communicating the decision on sentence and direct, personal interaction
or engagement with the defendant. Analysis of the transcripts suggests some of the
practical ways magistrates distance or associate themselves from the sentencing
decision and whether they consider their decision good news, bad news or some
combination.
This research suggests that judicial officers can engage more actively and personally
with participants in conventional courts, perhaps implicitly adopting tenets of
procedural justice or the values of therapeutic jurisprudence.
Sentencing Decision-Making in the Courtroom. The Judge as
Mediator of Formal Law and Substantive Justice
Author: Rasmus H. Wandall
When judges sentence in criminal cases, they do so under the authority of formal
legal rules. Decades of increasing formal rationalization of penal decision-making
both in England, Wales, Scotland and in numerous jurisdictions on the European
continent, has rendered this a concrete and real experience for judges. Whether as
mandatory rules, voluntary guidelines, appellate court guidance, precedents or other
legal authorities, legal rules create a formal expectation of courtroom action.
Socio-legal studies of courtroom decision-making have long provided the empirical
evidence that formal legal expectations do not tell the full story of actual decisionmaking: Judges and other courtroom agents are both interested in and go far to
pursue substantive justice and generally organize their decision-making also in
reflection of contextual concerns, be they organizational, cultural, or local political.
The traditional conclusion drawn from these studies is that actual sentencing
decision-making is decisively different from the formal legal rules of sentencing – that
there is a gap between the formal legal framework and the actual decision-making.
In this paper, I take issue with this assumed gap between law and actual practice.
The problem with it is that in trying so hard to understand the substantive and
contextual factors that shape actual practice, we forget that court decision-making is
normally perceived to be legally valid just the same. Even when studies show that
other than legal factors influence decision-making the very same decisions are
practically handled as legally valid decisions. For all practical purposes it must be
assumed that the legal profession itself, the judiciary and other central agencies in
particular, accept the practices under scrutiny in these studies as legally valid. Thus,
it may be that an ideal of law is subverted from a sociological point of view. But at the
very same time decision-making is constructed as upholding an ideal of formal law.
Extending the findings of two generations of courtroom studies to the particular
findings of two ethnographic studies of courtroom decision-making in Denmark, the
paper argues that and shows how penal decision-making in courtrooms is
simultaneously constructed as formal legally valid and as reflecting substantive
justice and contextual concerns more generally. It is not either formal law or
substantive justice, but both and.
As the paper goes on to argue, the judge has, with his authority of the proceedings,
a central role in organizing this co-presence of formal law and substantive justice.
The judge functions not merely as the servant of the law, as Feuerbach articulated,
but also as the mediator of law and substantive justice. The key contribution of the
paper is to address the question of how the judge, with the other courtroom agents,
organizes this co-presence of formal law and substantive justice. Finally, the paper
deals with a number of the significant consequences that flow from this recognition;
for example the consequences for the functional role of the judge in relation to newer
forms of courtroom decision-making.
French sentences’ implementation courts: where they come from, where they are
now where they are heading
Prof. Martine Herzog-Evans, Univ. of Reims, France
In France, there is a long tradition (1945) of judicial decision making regarding prison
release, adaptation of community sanctions and measures, sanctions and recall,
remission, and furlough, etc. However, recent laws have marginalized judicial
intervention and transferred part of courts’ decisions to probation services. Behind this
are two different goals: on the one hand, a strong mistrust of courts on the part of the
executive along with a desire to conduct penal policies without restraint; on the other
hand, a desire to free as much prison space as possible. The current government’s
programme for the next national elections (2012) makes it clear that this is just one
step. This presentation will draw on past research by the author; it will also introduce
new research pertaining to juges de l’application des peines (JAP)’s professional culture,
particularly with regard to desistance and resettlement.
Researching sentence implementation courts in Belgium.
Context and key questions
Kristel Beyens and Veerle Scheirs
Criminology Department, Vrije Universiteit Brussel, Belgium
Release decisions of prisoners are a highly sensitive and often debated issue in Belgium.
It is also a politically sensitive subject, because in the past it is was the Minister of
Justice who decided about the release of the most serious offenders. Partly enabled by
the notorious ‘Dutroux’-case in 1996, a transformation of the release system was
initiated and resulted in the establishment of multidisciplinary sentence implementation
courts. Since 1 February 2007 these courts decide over four aspects of the detention
trajectory of prisoners sentenced to three years imprisonment or more: (1) semidetention, (2) electronic monitoring, (3) conditional release and (4) provisional release
in view of expulsion or extradition.
In this paper we will briefly sketch the historical, legal and social context of the
establishment of the sentence implementation courts, their peculiarities and the nature
of the decisions they have to take.
Since 2010 we have been conducting ethnographic research to study the decisionmaking processes of these courts by focussing on their interactions with all actors
involved in this process. This includes: long-term observations of the formal and
informal interactions of professional and non–professional participants (‘front-stage’
and ‘back-stage’) before, during and after court sessions. In addition, the actors and
services involved in the preparation of the files and reports, such as the psycho-social
service in the prisons and the prosecutor, are being investigated. Our final analysis will
focus on the specific organisational and cultural context of the decision-making
processes and will try to understand and explain why and how decisions are made.
This presentation will discuss the key research questions when studying the operation
of these implementation courts. We will end by sketching a preliminary analysis of the
penal context and particular culture of decision-making, based on some of our initial
findings from our on-going fieldwork.