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

A sentencing exception? Changing sentencing policy in Scotland

This article reviews developments in penal policy and to sentencing reform in Scotland over the last decade. The devolved government was established in 1999 following the first elections to a Scottish Parliament. Despite being part of the United Kingdom, Scotland has long maintained its own legal system, an established church and education system, and a civic culture which valued 'community, public provision of welfare and mutual support' which has been considered to be distinctively Scottish. This article examines the changing character of sentencing policy to explore whether Scottish sentencing and penal policy remains relatively distinctive in international terms

'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

Beyond the revolving court door : is it time for problem-solving courts?

Cyrus Tata considers new ideas about the way courts might work with offender

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

Accountability for the sentencing decision process : Towards a new understanding

Combining the latest work of leading sentencing and punishment scholars from ten different countries, this international volume answers key questions in the study of sentencing and society. It presents not only a rigorous examination of the latest legal and empirical research from around the world, but also reveals the workings of sentencing within society and as a social practice. Traditionally, work in the field of sentencing has been dominated by legal and philosophical approaches. Distinctively, this volume provides a more sociological approach to sentencing: so allowing previously unanswered questions to be addressed and new questions to be opened. This extensive collection is drawn from around one third of the papers presented at the First International Conference on Sentencing and Society. Almost without exception, the chapters have been revised, cross-referenced and updated. The overall themes and findings of the international volume are set out by the opening 'Introduction' and the closing 'Reflections' chapters. Research findings on particular penal policy questions are balanced with an analysis of fundamental conceptual issues, making this international volume suitable reading for: sentencing and punishment scholars, criminal justice policy-makers, and graduate students