Sentencing and penal practices : Is Scotland losing its distinctiveness?

This chapter discusses sentencing and penal practices in Scotland

Conceptions and representations of the sentencing decision process

This article attempts to reflect on the success of attempts by academic research to understand and explain the sentencing decision process. It identifies conventional themes in the conception and representation of that decision process and argues that there are some important difficulties associated with them and consequently implications for both the findings of sentencing research and for approaches to sentencing reform. The article suggests a possible alternative approach to conceptualizing and representing the sentencing decision process and also raises questions about the nature of the discretionary (legal) decision process more generally

The struggle for sentencing reform : will the English guidelines model spread?

Are closely comparable countries following the path forged by England and Wales by moving towards the development of systematic sentencing guidelines by a Sentencing Council? And if they are not, how are these different paths explicable

A sense of justice : the role of pre-sentence reports in the production (and disruption) of guilt and guilty pleas

The criminal justice process in the lower and intermediate courts depends on defendants admitting guilt and being seen to do so voluntarily. Hitherto, there has been limited academic consideration of how pre-sentence reports and their associated processes interact with the dynamics of guilty pleas. Drawing on recent research following through the production, use, and interpretation of a sample of reports, this article concentrates on the troubling inconsistency with which legal professionals (especially judges and lawyers) are continually confronted: namely, between their ideals of ‘proper’ legal justice and the pragmatic daily reality in which they have to participate. How do legal professionals manage this sense of inconsistency? The article suggests that reports are vital to enabling legal professionals to process defendants in good, or at least not bad, conscience. In particular, reports pacify the lingering unease felt by legal professionals that the everyday summary court processes may be too abrupt, abstract and impersonal. Reports and their associated processes pacify this unease in three ways. Firstly, reports display to legal professionals that defendants are treated individually, and with a degree of respect and humanity. Secondly, report processes (including their anticipation) assist the management of defendants and facilitate the production of guilty pleas. Thirdly, reports, generally (but by no means always), help to facilitate the ‘closure’ of guilty pleas. In these three ways, the ‘efficienct’ mass processing of defendants via guilty pleas is enabled by a sense among legal professionals of the individualised justice which reports seem to them to display

'Neutrality', 'choice', and 'ownership' in the construction, use, and adaptation of judicial decision support systems

This article examines the character and future of Judicial Decision Support Systems (JDSS's) in relation to the activity of judicial sentencing. There are many varieties of JDSS which could be applied to sentencing. However, in terms of attracting judicial and political commitment 'Sentencing Information Systems' seem to be emerging as the predominant JDSS model. This model stresses values of data neutrality; judicial choice; and, judicial ownership of sentencing practice and sentencing reform. The article proceeds to examine the 'flip side' of each of these values. It discusses the reasons for the apparent neutrality of SIS data arguing that this 'neutrality' is necessarily a construction based in sentencing research. Examining the value of judicial choice in whether or not the system should be consulted, the article presents results of evaluation of the extent and nature of use of the Scottish Sentencing Information System currently being operated by High Court judges. There is some reason to believe that previous Canadian experience may not necessarily be replicated elsewhere, although it is still early in the history of the Scottish project. Finally, the article considers the ability to retain judicial ownership of the system and public access arguin

Sentencing and penal policy in the new Scotland : consultation on extending the presumption against short custodial sentences

In post-referendum Scotland it is widely suggested that this may be a moment to move away from Scotland’s relatively heavy use of imprisonment. In its efforts to reduce radically the prison population there seems to be real intent by the Scottish Government to shift the emphasis from prison to community penalties. To try to achieve this, the Government has deemed it necessary first to restrict mandatory community support for and supervision of long term prisoners - a move which could make the overall task more difficult. Currently the major tool in the Government’s reform box seems to be the extension of the presumption against ‘ineffective’ and ‘unnecessary’ short custodial sentences. But will such an extension work? This paper argues that the extension of the presumption is likely to have little impact by itself. Additional options include: relinquishing the policy of ‘custody as a last resort’ and instead making other penalties ‘the ultimate sanction’ (including for breach); creating a public principle which ensures that no one goes to prison for want of anything to address their needs; more creative use of Electronic Monitoring; making certain kinds of cases normally non-imprisonable

How can prison sentencing be reduced?

Currently, Scotland has one of the highest proportionate rates of imprisonment in Western Europe, which the Justice Secretary, Michael Matheson, has described as “totally unacceptable”. He wants to reduce radically the size of the prison population so that investment can be switched from incarceration to community penalties. Presently, extending the existing presumption against passing short custodial sentences appears to be the main tool in the Government’s box. Yet, will extending the Presumption work? If not, what else can be done

Sentencing & penal policy : ending prison as the default

For decades we have imagined that if only community alternatives to imprisonment could be sold as more credible then the use of imprisonment will fall. It is a seductive logic. Yet instead what we have seen is increases in both community ‘alternatives’ and imprisonment, while the use of the fine has plummeted. Although it sounds progressive, the prevailing approach that ‘custody is a last resort’ ends up meaning in practice that imprisonment becomes the default. This article proposes a way out of this problem

Sentencing as craftwork and the binary epistemologies of the discretionary decision process

This article contends that it is time to take a critical look at a series of binary categories which have dominated the scholarly and reform epistemologies of the sentencing decision process. These binaries are: rules versus discretion; reason versus emotion; offence versus offender; normative principles versus incoherence; aggravating versus mitigating factors; and aggregate/tariff consistency versus individualized sentencing. These binaries underpin both the 'legal-rational' tradition (by which I mean a view of discretion as inherently suspect, a preference for the use of philosophy of punishment justifications and an explanation of the decision process through factors or variables), and also the more recent rise of the 'new penology'. Both approaches tend to rely on 'top-down' assumptions of change, which pay limited attention to the agency of penal workers. The article seeks to develop a conception of sentencing craftwork as a social and interpretive process.1 In so doing, it applies and develops a number of Kritzer's observations (in this issue) about craftwork to sentencing. These craftwork observations are: problem solving (applied to the rules - discretion and reason - emotion dichotomies); skills and techniques (normative penal principles and the use of cognitive analytical assumptions); consistency (tariff versus individualized sentencing); clientele (applied to account giving and the reality of decision making versus expression). By conceiving of sentencing as craftwork, the binary epistemologies of the sentencing decision process, which have dominated (and limited) the scholarly and policy sentencing imaginations, are revealed as dynamic, contingent, and synergistic. However, this is not to say that such binaries are no more than empty rhetoric concealing the reality of the decision process. Rather, these binaries serve as crucial legitimating reference points in the vocabulary of sentencing account giving

Just Emotions? The need for emotionally-intelligent justice policy

What are the Obstacles to a Rational Criminal Justice Policy? It is often wondered why we do not have a more rational, evidence-based system of criminal justice. All the evidence points towards a more targeted use of imprisonment, a joined up system of criminal and social justice and improved resourcing for community penalties and community services. Yet a key reason which prevents justice policy from proceeding rationally is the fear of looking ‘soft’ in the eyes of the public. People feel let down and angry about a system which seems uninterested in showing justice to be done, publicly recognising the wrong, encouraging the wrong-doer to to face up to the wrong, and make amends. Is there any way out of this policy quandary? Here we propose that a key public frustration, which drives cynicism and penal populism, lies in the failure of criminal justice to engage, and be seen to engage, in emotionally-intelligent communication. Too often the process appears sterile, lacking emotional meaning and participation. Mention of ‘emotion’ in law sometimes rings alarm bells. Our argument, however, is that emotionally-intelligent communication is not opposed to, but essential to, rational and progressive policy