Sentencing: A Social Process: Re-thinking Research And Policy 3030010597, 9783030010591, 9783030010607

Table of contents :
Preface and Acknowledgements......Page 6
Praise for Sentencing: A Social Process......Page 8
Contents......Page 10
List of Tables......Page 14
1 Sentencing Decision-Making: Unravelling the Enigma......Page 15
1.1 An Enduring Enigma......Page 16
2.1 Sentencing Decision-Making Is Neither Magic Nor Machine, but Interpretive......Page 19
2.2 Sentencing Is Processual......Page 20
2.3 Sentencing Is Performative......Page 21
3 The Structure of the Book......Page 22
References......Page 24
2 Sentencing Research and Policy: Presumed Autonomous Individualism......Page 26
1 Two Giants of Sentencing Thought in Combat......Page 27
Transparency......Page 28
How the New Penology-Inspired Literature Fortifies the Judicial-Defensive Tradition......Page 30
1.3 The Two Traditions Share the Same Assumptions......Page 35
2 Autonomous Individualism and the Sentencing Cosmos......Page 37
2.1 Separate Autonomous Individual Entities......Page 39
3 Law Versus Discretion: Are Legal Rules and Discretion Really Opposites?......Page 40
Discretion as the Personal Property of the Autonomous Individual Judge......Page 42
Gender and the Rule-Discretion Binary......Page 46
4 Case Factors: Autonomous Individual Entities?......Page 50
4.1 The Analysis of ‘Factors’......Page 51
4.2 Problematising ‘Factors’......Page 54
5 Conclusions and Implications......Page 57
References......Page 58
3 The Social Production of Sentencing......Page 63
1 How the Discretion-Versus-Rules Binary Dissolves......Page 64
2 The Indivisibility of ‘Rules’ and ‘Facts’......Page 67
Case ‘Facts’ and the Making of Cases......Page 68
2.2 The Devil Is in the Rule-Facts Dialogue......Page 69
Who Does Sentencing Work?......Page 70
The Need for Typified Whole Offence Approach......Page 71
Offence Versus Offender?......Page 73
3 How Reason-Giving and Accountability Are Socially Produced......Page 79
References......Page 82
4 The Work of the Sentencing Professions: Animating Autonomous Individualism......Page 87
1.1 Understanding Professional Work: The Problem of Apprehension......Page 88
2.1 The Trait Model......Page 89
The Application of Abstract Knowledge and Professional Ownership......Page 90
Professional Ethics and Client Choice......Page 91
3.1 Autonomous Individualisation in the Discourse of Professional Responsibility......Page 95
3.2 The Autonomous Individualisation of the Subject of Sentencing......Page 97
4 Conclusions......Page 100
References......Page 101
5 The Humanising Work of the Sentencing Professions: Individualising and Normalising......Page 105
1 Professional Boundaries......Page 106
1.1 Inter-professional Competition and the Division of Sentencing Work......Page 107
2 Performing Legitimacy: The Cultivation of Ideal Clientele......Page 108
The Role of Remorse and Legitimacy in Professional Work......Page 109
3 How Inter-professional Disconnections Generate Ideal Clientele......Page 119
3.1 Temporal Separation?......Page 121
Sovereign and Disciplinary Powers: A Symbiotic Relationship?......Page 123
References......Page 126
6 The Rise of Technology and the Demise of the Sentencing Professions?......Page 130
1 Technology and the Demise of Professional Discretion?......Page 131
2 The Genesis and Development of the Sentencing Information System......Page 135
2.1 Conceiving and Representing Case Similarity......Page 137
2.3 User Flexibility......Page 138
2.4 Hand-Over to the Court Service......Page 139
3.2 A Defensive Political Initiative?......Page 141
3.3 The Indeterminacy of SIS ‘Results’......Page 142
3.4 Voluntary Use......Page 143
3.5 Meeting Judicial Demand......Page 144
The Social Construction of Cases......Page 145
3.7 Are Sentencers Now Mere Consumers of Meaning Rather Than the Creators’?......Page 147
4 Mirror Images: The New Penology-Inspired Literature and the Legal-Rational Tradition......Page 149
5 Conclusions......Page 150
References......Page 151
7 New Directions for Research and Policy......Page 155
1 Loosening the Grip of Presumed Autonomous Individualism......Page 156
Making Sense of Consistency and Disparity......Page 159
Action Versus Communication?......Page 162
Focus on the Interfaces and Ancillary Staff......Page 167
Two Public Principles......Page 171
3 Conclusions and Further Questions......Page 177
References......Page 179
Index......Page 183

Citation preview

Sentencing: A Social Process Re-thinking Research and Policy Cyrus Tata

Palgrave Socio-Legal Studies

Series Editor Dave Cowan School of Law University of Bristol Bristol, UK

The Palgrave Socio-Legal Studies series is a developing series of monographs and textbooks featuring cutting edge work which, in the best tradition of socio-legal studies, reach out to a wide international audience. Editorial Board Dame Hazel Genn, University College London, UK Fiona Haines, University of Melbourne, Australia Herbert Kritzer, University of Minnesota, USA Linda Mulcahy, University of Oxford, UK Rosemary Hunter, University of Kent Carl Stychin, University of London, UK Mariana Valverde, University of Toronto, Canada Sally Wheeler, Australian National University College of Law, Australia More information about this series at http://www.palgrave.com/gp/series/14679

Cyrus Tata

Sentencing: A Social Process Re-thinking Research and Policy

Cyrus Tata University of Strathclyde Glasgow, UK

Palgrave Socio-Legal Studies ISBN 978-3-030-01059-1 ISBN 978-3-030-01060-7  (eBook) https://doi.org/10.1007/978-3-030-01060-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: age fotostock/Alamy Stock Photo This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface and Acknowledgements

This short book has been long in gestation. For a considerable time, I have been uncomfortable with the received wisdom of sentencing scholarship and policy thinking (and indeed thought about discretionary decision-making more generally). Somehow it felt too artificial and too abstract. Sentencing: A Social Process makes the case for the fundamental reimagining of how in research and policy thinking we conceive and represent decision-making. My premise is that although sentencing scholarship and policy thinking has been the site of a passionate battle over ways to reform (or not) decisions to punish, these debates have become sterile. Despite, or perhaps because of, the impassioned disagreement about the normative question of reform, (e.g. more or less rules, or discretion; guidelines, etc.), reformers and defenders of the status quo in fact share the same ways of seeing and categorising decision-making. This, I will show, is marked by a paradigm which assumes property-owning autonomous individualism. Not only are judges and other sentencing professionals regarded as autonomous individuals owning separate dominions of work, but so too are the objects of sentencing. Decision-making tends to be conceived as an aggregate of more or less autonomous individual elements, (e.g. v

vi      Preface and Acknowledgements

facts, aggravating and mitigating factors, rules, discretion, etc.), each competing with each other and each imagined to own its own inherent properties. Exposing how the metaphor of property reflects and constitutes this trope of autonomous individualism, is, however, not enough. How instead should we re-imagine decision-making practices? Sentencing: A Social Process proposes three key qualities, which enable us to release fresh thinking and unlock new research and policy agendas. Sentencing decision-making is, I explain, inescapably: interpretive, processual and performative. My hope is that these propositions will kindle further development by fellow scholars and others. Since the ideas developed in this book have been percolating for a long time, I owe a debt of gratitude to a many people with whom I have discussed the ideas contained in it and/or commented on earlier drafts, including: Andrew Ashworth, Susan Bandes, Greg Berman, Kristel Beyens, Miranda Boone, Louise Brangan, Antony Duff, Stewart Field, Jay Gormley, Loraine Gelsthorpe, Simon Halliday, Neil Hutton, Fiona Jamieson, Louise Johansen, Kathy Mack, Richard Moorhead, Fergus McNeill, Mike Nellis, Tom O’Malley, Sharyn Roach Anleu, Julian Roberts, Marguerite Schinkel, David Tait, Javier Velasquez, Sakia Vermeylen, Beth Weaver, and Richard Weisman, Jacqueline Young, as well as the anonymous peer reviewers. I would also particularly like to thank Dave Cowan, Academic Editor of Palgrave’s Socio-Legal Series, whose comments were incisive and judicious. However, it is not only academics who have stimulated my thinking, but the countless practitioners (judges, lawyers, social workers, prison officers, etc), policy officials, as well as people subject to the justice process—all of whom have given of their time generously and their thinking. I also wish to acknowledge the support and good-natured patience of Josie Taylor, Commissioning Editor of the Socio-Legal Series at Palgrave. Last, but far from least, my heartfelt thanks go to Ashley, Sylvie and Elodie who showed me, in ways I could never have imagined, that what we separately label as cognition as opposed to feeling, action as opposed to expression are, in deeper truth, indivisible. Glasgow, UK

Cyrus Tata

Praise for Sentencing: A Social Process

“Sentencing: A Social Process offers a highly original and constructive re-thinking of policy and research. It enriches and enlivens a debate that is too often polarized and unproductive.” —Susan Bandes, Centennial Distinguished Professor De Paul Law School, USA “Elegantly and directly, this book re-frames sentencing as a complex, multifaceted and mediated process. Essential reading for anyone involved and interested in sentencing and the criminal justice system.” —Sharyn Roach Anleu, Matthew Flinders Distinguished Professor, Flinders University, Australia “Tata shows in a brilliant way how our impatience to realise change, obstructs our capacity to observe how sentencing processes really work. Sentencing: A Social Process reveals that sentencing is only an enigma when viewed through prevailing binary categories.” —Miranda Boone, Professor of Criminology, Leiden University, Netherlands vii

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“This book will be indispensable to anyone interested in sentencing and penal decision-making—whether as scholar, student, or policymaker. Tata’s key contribution is to break the chains of moral individualism that bind our understanding of sentencing and our attempts to reform it. By helping us confront sentencing as a social process, this book promises to unlock progressive change—in theory and practice alike.” —Fergus McNeill, Professor of Criminology & Social Work, Glasgow University, UK “Cyrus Tata is a pioneering thinker in sentencing research and this book convincingly develops his position against depictions of sentencing as individualistic actions by autonomous judges. Tata persuasively presents a holistic and process-oriented analysis of sentencing practices in order to better understand what is at stake in the court room and beyond.” “Sentencing is deconstructed as a human and social practice and Tata develops a provocative and very interesting view with regard to the ‘loss of discretion’ in the age of the rise of information technology.” “A must read, not only for sentencing scholars but also for policy-makers, because this thought-provoking book nicely brings ­ together the main discussions and perspectives in sentencing research and thinking today.” —Professor Kristel Beyens, Professor of Criminology & Penology, Vrije Universiteit Brussel

Contents

1 Sentencing Decision-Making: Unravelling the Enigma 1 1 Why Rethink Sentencing Research and Policy? 2 1.1 An Enduring Enigma 2 2 Sentencing as a Social Process: Three Key Qualities 5 2.1 Sentencing Decision-Making Is Neither Magic Nor Machine, but Interpretive 5 2.2 Sentencing Is Processual 6 2.3 Sentencing Is Performative 7 3 The Structure of the Book 8 References 10 2 Sentencing Research and Policy: Presumed Autonomous Individualism 13 1 Two Giants of Sentencing Thought in Combat 14 1.1 The Legal-Rational Tradition 15 1.2 The Judicial-Defensive Tradition 17 1.3 The Two Traditions Share the Same Assumptions 22 2 Autonomous Individualism and the Sentencing Cosmos 24 2.1 Separate Autonomous Individual Entities 26 ix

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3 Law Versus Discretion: Are Legal Rules and Discretion Really Opposites? 27 3.1 Coercion Versus Freedom: The Autonomous Individual Judge? 29 4 Case Factors: Autonomous Individual Entities? 37 4.1 The Analysis of ‘Factors’ 38 4.2 Problematising ‘Factors’ 41 5 Conclusions and Implications 44 References 45 3 The Social Production of Sentencing 51 1 How the Discretion-Versus-Rules Binary Dissolves 52 2 The Indivisibility of ‘Rules’ and ‘Facts’ 55 2.1 The Devil Is in ‘the Facts’ 56 2.2 The Devil Is in the Rule-Facts Dialogue 57 2.3 What Does ‘Process’ Mean in Sentencing Decision-Making? 58 2.4 Multi-conviction Cases 59 2.5 Offender Characteristics 61 3 How Reason-Giving and Accountability Are Socially Produced 67 4 Conclusions and Implications 70 References 70 4 The Work of the Sentencing Professions: Animating Autonomous Individualism 75 1 Constituting the Rules-Facts Dialogue: The Role of the Sentencing Professions 76 1.1 Understanding Professional Work: The Problem of Apprehension 76 2 Conceptions of Professions 77 2.1 The Trait Model 77 2.2 The Proprietorial-Control Model 78 3 The Individualising Work of the Sentencing Professions 83 3.1 Autonomous Individualisation in the Discourse of Professional Responsibility 83

Contents     xi

3.2 The Autonomous Individualisation of the Subject of Sentencing 85 4 Conclusions 88 References 89 5 The Humanising Work of the Sentencing Professions: Individualising and Normalising 93 1 Professional Boundaries 94 1.1 Inter-professional Competition and the Division of Sentencing Work 95 2 Performing Legitimacy: The Cultivation of Ideal Clientele 96 2.1 Humanisation Work Demands Acceptance of Autonomous Individual Responsibility 97 3 How Inter-professional Disconnections Generate Ideal Clientele 107 3.1 Temporal Separation? 109 3.2 Mutual Blindness 111 4 Conclusions 114 References 114 6 The Rise of Technology and the Demise of the Sentencing Professions? 119 1 Technology and the Demise of Professional Discretion? 120 2 The Genesis and Development of the Sentencing Information System 124 2.1 Conceiving and Representing Case Similarity 126 2.2 Public Access and Use to Inform Public Knowledge About Sentencing Practices? 127 2.3 User Flexibility 127 2.4 Hand-Over to the Court Service 128 3 What Does Story of the Scottish SIS Signify? 130 3.1 Are Judicial Sentencers Losing Control Sentencing to Techno-Rational Instruments? 130 3.2 A Defensive Political Initiative? 130 3.3 The Indeterminacy of SIS ‘Results’ 131 3.4 Voluntary Use 132

xii      Contents

3.5 Meeting Judicial Demand 133 3.6 Are Technologies Such as the SIS De-Humanising Sentencing? 134 3.7 Are Sentencers Now Mere Consumers of Meaning Rather Than the Creators’? 136 4 Mirror Images: The New Penology-Inspired Literature and the Legal-Rational Tradition 138 5 Conclusions 139 References 140 7 New Directions for Research and Policy 145 1 Loosening the Grip of Presumed Autonomous Individualism 146 2 What Should Sentencing Research and Policy Do Now? 149 2.1 An Interpretive Research Approach to Rules, Facts and Discretion 149 2.2 Re-thinking the Meanings of ‘Efficiency’ 152 2.3 Study the Experiences of People Proceeded Against 157 2.4 Parsimony and Proportionality’ 161 3 Conclusions and Further Questions 167 References 169 Index 173

List of Tables

Chapter 2 Table 1 The legal-rational tradition and the judicial-defensive tradition: normatively opposed, but same assumptions Table 2 The engendered and engendering law-discretion binary

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1 Sentencing Decision-Making: Unravelling the Enigma

Abstract A huge volume of scholarship and reform work has been dedicated to the ‘problem’ of sentencing decision-making. Yet it remains an enigma. This chapter argues that this is because the field is dominated by an impatience to prescribe either a solution about how it should be reformed, or, to deny the need for reform. However, this impatience to proclaim the normative solution obstructs a deeper understanding of the reality of daily sentencing work. Sentencing scholarship and policy-thinking is dominated by assumptions operating in the shadow of legal formalism and enveloped within a wider paradigm of autonomous individualism. Instead, reconceptualising sentencing as a social process enables a deeper conceptualisation of decision-making, so offering a more solid basis for possible reform. Three key qualities reveal sentencing to be a social process. First, sentencing work is inescapably interpretive. Second, sentencing decision-making is, in reality, not a singular moment determined alone by the individual judge, but a process to which a range of practitioners contribute collaboratively. Third, the sentencing process is generated by performance of roles and ideals. Keywords Sentencing research · Sentencing reform · Discretion · Judicial decision-making · Punishment © The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_1

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Why Rethink Sentencing Research and Policy?

1.1

An Enduring Enigma

Sentencing is something everyone can talk about. As perhaps the most publicly visible activity in law, the everyday reality of criminal justice practice is geared to sentencing. The shape of sentencing decision-making affects the direction of criminal justice practices and consequent public expenditure (e.g. in policing, prosecution, the provision of legal aid, the use of imprisonment, community penalties etc.). The work of sentencing also appears to be both culturally reflective and instructive: it signals ideas about harm, authority, and community. It may offer emotional resolution and catharsis, or, it may be degrading. Consequently, sentencing is about much more than the formal decision in any immediate case. It is this ‘daily routine of sanctioning and institutional practice which does most to create a particular framework of meaning’ (Garland 1990: 255). Sentencing is something everyone can feel, and is in a sense qualified to talk about, even though they may readily admit that the sources of their knowledge are dubious (e.g. Anderson et al. 2002; Hutton 2005; Roberts and Hough 2005). It is far from merely technical, but a conductor of emotive impulses and shared social meanings (e.g. Daems 2008; Garland 1990, 2001). Though much academic work is, understandably, concerned to protect it from ill-informed populist punitiveness (e.g. Gelb and Freiberg 2008), sentencing plays an important democratic function in allowing people a chance to discuss, exchange and debate questions of legitimacy in the exercise of legitimate violence (punishment). In a sense, then, sentencing is law’s most obvious and inviting representation. Perhaps for this reason, sentencing has, in most countries, been the subject of a huge programme of reform, or at least, debate about the need for reform. Despite the enormous volume of scholarship and policy work about sentencing, and in particular its reform, sentencing decision-making itself remains enigmatic. Techniques and styles of reform have been tried, and their efficacy much debated (e.g. Ashworth 2013; Padfield 2013; Tonry 2016; Tonry and Frase 2001; Reitz 2013). Nonetheless, success remains

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elusive. For instance, the early hopes of reformers to find ways to reduce the use of imprisonment through sentencing reform have met with at best limited success, and the scale of ambitions have had to be moderated (e.g. Ashworth 2017; Tata 2013; Tonry 2016). Why? So fierce and preoccupying are the debates about what ought to be done (or not done) about sentencing, that attempts to understand the reality of that decision-making have been stuck in a normative cul-de-sac. Subordinated by an impatience to devise normative solutions to perceived problems, dominant scholarly discourse has neglected serious thought about actual sentencing practices. Despite the sophisticated normative work of reformers and the valuable responses of sceptics, our understanding of how sentencing decision-making operates remains under-developed. Depictions of decision-making are imagined through the optics of normative preoccupations about what ought to be done, or, in the more conservative case, not done. Ironically, the practical consequence is that prescriptions for reform (or denial of its need) can only be based on shaky ground. This book argues it is time to re-think how we conceive and represent sentencing decision-making. Sentencing: A Social Process reveals that property-owning autonomous individualism is the central trope of both progressive reformers and conservatives. First, it uncovers how this trope is reproduced in scholarly and policy conceptions of decision-making practice which suppose that sentencing is the product of an aggregate of autonomous individual actions. Second, this imagined autonomous individualism is projected onto and reproduced by an imagined wider ‘universe’ comprising separate sentencing ‘things’: a universe presumed to be composed of autonomous individual entities (e.g. rules, facts, factors, decision moments, technologies etc.), again each possessing its own inherent properties. Both reformers and conservatives operate according to a trope of presumed autonomous individualism in which the idea of private property plays a central role. Third, Sentencing: A Social Process shows how this trope of property-owning autonomous individualism, (itself a socially constructed idea), is reflected in and perpetuated by the performance of professional sentencing work, which individualises the culpability of the person subject to sentencing as essentially autonomous. Fourth, individual professionals are required to shoulder the impossible burden of resolving on a case-by-case basis the consequence of chronic social problems. Fifth, without any controlling mind (indeed because of its very lack), through

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humanisation (e.g. mitigation), work on the individual, the independent work of separate professions symbiotically achieves both the expeditious disposal of cases and the generation of ‘ideal’ criminal clientele. However, this dominant conception of sentencing based in autonomous individualism, (which is itself a socially constructed idea of the ‘natural’ universe), ignores the reality of the relational self (e.g. Nedelsky 2011). Sentencing actors (including ‘things’ which are assumed to be determinants) are not self-possessed autonomous individual forces with their own inherent meanings and properties. Rather, action, consciousness and identity are inescapably interconnected and socially constituted by and through relationships. It is only in this material relationality that meaning can begin to make sense. Recognising this, we can begin to re-think sentencing as more than the sum of its parts. Sentencing: A Social Process seeks to escape the dominant paradigm of autonomous individualism by conceiving the sentencing decision-making as interpretive, processual, relational, and performative. Consequently, new avenues of research can be envisaged, both in sentencing and in the study of professional and discretionary decision-making more generally. It also means that the quest for reform (or conservation) can be built on solid foundations. Recognising the essentially social character of decisionmaking enables us to sketch out new agendas, for example in the attempt to reduce the use of imprisonment and rethink the meaning of ‘efficiency’. This conception propels us beyond thinking merely of sentencing ‘in context’. ‘In context’ approaches may be a step forward from formalistic ones, but they still posit decision-making as an individualistic activity. ‘In context’ approaches tend to treat the autonomous individual judge1 as the starting point who works on autonomous official rules, albeit buttressed by considerations which are in some way ‘external’ to that individual. We need to start not with individuals operating in an external context or environment, but rather from the recognition that, as suggested by the symbiotic imagery on this book’s cover, everyone and every ‘thing’ is relational. In particular, three consequences flow. 1Throughout this work I use the term ‘judge’ generically to cover the many different terms (e.g. magistrate, sheriff, recorder etc.) which are employed in different jurisdiction to denote a judicial office holder.

1 Sentencing Decision-Making: Unravelling the Enigma

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Sentencing as a Social Process: Three Key Qualities

Sentencing is interpretive, processual, and performative. To whet the reader’s appetite, I will outline briefly what I mean by interpretive, processual, relational, and performative qualities of sentencing, as these are recurring motifs in my proposition that sentencing is a social process.

2.1

Sentencing Decision-Making Is Neither Magic Nor Machine, but Interpretive

The predominant reform-oriented sentencing scholarship and policythinking is that judicial sentencers are the recipients of a series of individual stimuli (pieces of information), the meaning of which are self-evident. The aggregation of these autonomous individual stimuli are thought to elicit a response in the form of a sentencing outcome. The challenge, then, is to identify and isolate the individual stimuli (e.g. rules, discretion, facts and factors) which have the most intrinsic impact on the response (i.e. the sentencing outcome). Though more sophisticated versions argue for approaches by which these different stimuli may be arranged, focused and combined, they are nevertheless ultimately conceived as essentially self-possessed, separate individual pieces of autonomous information (e.g. Bagaric and Wolf 2018; Lovegrove 1989, 2008; Pina-Sánchez 2015; Spohn 2002: 79–130; Steffensmeir and Herbert 1999). It is believed to be a sentencing procedure which is (or at least should be) composed of a sequence of autonomous individual steps in the linear logic of rational decision-making. On the other hand, those anxious to arrest the march of reforms do so by denying the possibility, even desirability, of the explication of decision-making by the wise individual judge (e.g. Brown 2017; Franko Aas 2004, 2005). We are left then with one approach seeking to model sentencing analytically which can be accused of seeing sentencing as akin to a machine, and another which can be accused of conjuring sentencing as akin to magic. Instead, we should take seriously the pleas of sentencing practitioners to attend more closely to ‘context’ and ‘the whole case’: all information in

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sentencing is relationally meaningful. Normative scholarship may arrive at the definitional essence of an individual piece of information (e.g. a particular ‘factor’). However, it is in the everyday operation of decision-making that the ‘factor’ becomes unavoidably unstable and inescapably contingent. Thus, attempts to abstract individual pieces of information leads to an artificial and mechanical image of decision-making. An interpretive approach focuses our attention on studying the ways in which practical meaning is made through connections between information which may be formally separate. This necessitates a focus on sense-making and the communication of that sense as a routine activity; the interaction between the (often implicit) codes, clues and cues. Once this is done, we can recognise that interpretation emerges by and through a collaborative process of sense-making.

2.2

Sentencing Is Processual

Just as research might focus on the inter-relationships of apparently separate information, so it has to focus on temporal inter-connections. Although the sentencing decision is a formal moment of pronouncement, it is the consequence of an agenda which is set earlier in criminal proceedings, such as police, prosecution, plea decision-making and bargaining etc. Necessarily, cases evolve and are transformed by this process (e.g. Emerson 1983; Hawkins 1992; Shapland 1981; Tata 2019). Practitioners build these sentencing agendas prior to that formal moment, as do those later implementing the sentence, (e.g. prison managers, probation officers and others supervising or working with the sentenced person), interpreting its meaning as a practical reality (Schinkel 2014; Hall 2016). The meaning of the case (and the sentence) evolves and is translated by the ways in which information is transferred, filtered, and edited. The meaning of cases emerges through ‘careers’ of construction and reconstruction. Thus, sentencing is an implicitly collaborative activity among a range of professionals signalling meanings to each other. For this reason, I will refer to ‘sentencing professionals’ and ‘sentencing workers’ to denote this wider range of inter-connecting contributions to the process.

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Sentencing Is Performative

Sentencing workers, (especially professionals, see Chapter 4), communicate to each other, and thus to themselves. They do this, for example, through the performance of culturally expected professional roles and characteristics. To say that professionals ‘perform’ does not mean that what they do is a pretence or a sham. First, we all perform our culturally-expected roles all the time: that is what it means to be a social animal. The immediate demands of sociality (Collins 2004) require that we communicate in reasonable ways according to our role and situations (e.g. Goffman 1967). Secondly, our performance goes deeper than the rules of everyday interactions. We continually perform the roles required of us and appraise each other against those roles. To explain this point, consider this illustration. Scholars conceptualising the gendering of social life show how we perform, through a myriad of usually unconscious and semi-conscious stylised gestures, language adaptation, voice modulation, deportment, gait, demeanour what it means to be a ‘real’ man, woman, boy, girl (e.g. Butler 1990). How one stands, dresses, listens, speaks, responds, gestures, sits etc. are all what make and create our gender, such that even if we wanted to we would find it hard to change our unthinking patterns of being. Likewise, what are the expected ways of doing, speaking, acting and being roles such as mother and father, ‘a proper Mum’ and ‘a real Dad’? Thus, to think of ‘performance’ as some kind of pretence is to suppose a prior asocial conception of people as essentially autonomous individuals pre-existing, who simply choose to come together for instrumental reasons. As we shall see, this image is so profoundly entrenched in normative liberal thinking about freedom and action that it easily becomes the assumed lens through which empirical portraits emerge. Yet, so deeply embedded are the requirements of sociality that they are self-constituting. There is no ‘real’ essence of a unique individual lying within or apart from the socially constructed self. This is neither an inherently a ‘good’ nor ‘a bad thing’: it is simply an inescapable fact of social life. Thirdly, professionals face additional obligations beyond the universal requirement to behave acceptably in the social world. Professionals have to learn, in a more specific and self-conscious way abstracted from the rest

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of society, the craft of specialised communication, their particular role, audience and hierarchy; how to perform impartiality and authority, for example (Roach Anleu and Mack 2017). For instance, they must learn the craft of what it means to behave ‘judicially’ or be ‘lawyerly’: tone, bodylanguage, deportment, ways of thinking, speaking, walking, standing, etc.

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The Structure of the Book

Chapter 2 identifies the two predominating and opposing traditions of sentencing scholarship and policy thought. These are: ‘the legal-rational tradition’ and ‘the judicial-defensive tradition’. Despite their impassioned mutual opposition, in case fact they share the same assumptions and ways of seeing sentencing enveloped in a paradigm of presumed autonomous individualism. This paradigm projects a ‘cosmos’ of sentencing composed of competing autonomous self-contained entities each with their own inalienable property. These supposedly autonomous entities include: rules and discretion; case facts and factors. We will unearth the roots of this thinking: an asocial conception of freedom and coercion; discretion as private property; and the engendered characteristics of the rules-discretion binary. Proposing a way of transcending prominent binary oppositions (e.g. rules versus discretion, aggravating versus mitigating factors, offence versus offender), Chapter 3 conceives sentencing decision-making as holistic and intuitive yet explicable. By emphasising the key role of the social production of cases, we can rethink how research (and so policy) can better apprehend thorny issues like multi-conviction cases, and the offenceoffender binary through the use of ‘typified whole case stories’. This focus on the social production of cases also enables a more nuanced understanding of accountability and reason-giving. Chapter 4 reveals how the work of sentencing professionals individualises collective problems in two ways. First, responsibility for chronic social problems is delegated to individual professionals who are expected (and expect themselves) to address them on a case-by-case basis. Second,

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despite nods of acknowledgement to social context, professional sentencing work encourages the alignment of the penal subject with the culpability norms of autonomous individualism. Chapter 5 proposes that the disconnections between the work of autonomous professions facilitates the generation of ideal penal subjects. Moreover, the separate and autonomous work of professional spheres (e.g. in law as opposed to rehabilitation) works symbiotically to achieve the alignment of the person subject to punishment with that ideal. However, this is not through deliberation, conspiracy or any grand plan, but precisely because of the mutual blindness and disconnection of the autonomous domains of professional work. Chapter 6 tests the claims of de-professionalisation and the replacement of discretion by hyper-rational managerial technologies. I suggest that these claims tend to rely on an asocial understanding of decision-making; a formalistic conception of rules; and a positivistic view of ‘information’. Concluding, Chapter 7 invites the reader to reflect on the implications for the development of policy and research agendas. Unfastening ourselves from our overwhelming preoccupation with questions of reform frees us to identify and reappraise central binaries in sentencing and criminal justice research and policy which restrict our thinking, including: consistency versus individualisation; the instrumental versus the symbolic; and efficiency versus due process. It empowers us to re-think questions of ‘effectiveness’. It releases the opportunity to re-think the role of the justice process in the re-generation of crime, and how and why criminal justice is so ineffective in reducing reoffending (or to put it another way so effective in recycling its clientele). We can, then, begin to sketch out new research agendas but also new normative agendas, (e.g. about the reduction in the use of imprisonment), informed by the limits and strengths of what sentencing can achieve.

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References Anderson, S., Ingram, D., & Hutton, N. (2002). Public Attitudes Towards Sentencing and Alternatives to Imprisonment (Scottish Parliament Paper 488 session 1 HMSO). Ashworth, A. (2013). The Struggle for Supremacy in Sentencing. In A. Ashworth & J. Roberts (Eds.), Sentencing Guidelines: Exploring the English Model (pp. 15–30). Oxford: Oxford University Press. Ashworth, A. (2017). Prisons, Proportionality and Recent History. Modern Law Review, 80 (3), 473–488. Bagaric, M., & Wolf, G. (2018). Sentencing by Computer. George Mason Law Review, 25 (3), 653–709. Brown, G. (2017). Sentencing as Practical Wisdom. Oxford: Hart Publishing. Butler, J. (1990). Gender Trouble. New York: Routledge. Collins, R. (2004). Interaction Ritual Chains. Princeton: Princeton University Press. Daems, T. (2008). Making Sense of Penal Change. Oxford: Oxford University Press. Emerson, R. (1983). Holistic Effects in Social Control Decision-Making. Law & Society Review, 17 (3), 425–456. Franko Aas, K. (2004). From Narrative to Database: Technological Change and Penal Culture. Punishment & Society, 6 (4), 379–393. Franko Aas, K. (2005). Sentencing in the Age of Information: From Faust to Macintosh. London: Glasshouse Press. Garland, D. (1990). Punishment and Modern Society. Oxford: Clarendon Press. Garland, D. (2001). The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press. Gelb, K., & Freiberg, A. (2008). Penal Populism, Sentencing Councils and Sentencing Policy. Cullompton: Willan Publishing. Goffman, E. (1967). Interaction Ritual. New York: Anchor Books. Hall, M. (2016). The Lived Sentence: Rethinking Sentencing, Risk and Rehabilitation. London: Palgrave Macmillan. Hawkins, K. (1992). The Use of Legal Discretion: Perspectives from Law and Social Science. In K. Hawkins (Ed.), The Uses of Discretion (pp. 11–46). Oxford: Oxford Socio-Legal Studies Clarendon Press. Hutton, N. (2005). Beyond Populist Punitiveness. Punishment & Society, 7 (3), 243–258.

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Lovegrove, A. (1989). Judicial Decision-Making, Sentencing Policy and Numerical Guidance. New York: Springer. Lovegrove, A. (2008). A Decision Framework for Judicial Sentencing: Judgment, Analysis and the Intuitive Synthesis. Criminal Law Journal, 32, 269–286. Nedelsky, J. (2011). Law’s Relations. Oxford: Oxford University Press. Padfield, N. (2013). Exploring the Success of Sentencing Guidelines. In A. Ashworth & J. Roberts (Eds.), Sentencing Guidelines (pp. 31–51). Oxford: Oxford University Press. Pina-Sánchez, J. (2015). Defining and Measuring Consistency in Sentencing. In J. V. Roberts (Ed.), Exploring Sentencing Practice in England and Wales (pp. 76–92). London: Palgrave. Reitz, K. (2013). Comparing Sentencing Guidelines. In A. Ashworth & J. Roberts (Eds.), Sentencing Guidelines (pp. 182–201). Oxford: Oxford University Press. Roach Anleu, S., & Mack, K. (2017). Performing Judicial Authority in the Lower Courts. London: Palgrave. Roberts, J., & Hough, M. (2005). Understanding Public Attitudes to Criminal Justice. New York: Open University Press. Schinkel, M. (2014). Being Imprisoned. London: Palgrave. Shapland, J. (1981). Between Conviction and Sentence: The Process of Mitigation. London: Routledge & Kegan Paul. Spohn, C. (2002). How Do Judges Decide? London: Sage. Steffensmeier, D., & Hebert, C. (1999). Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants? Social Forces, 77 (3), 1163–1196. Tata, C. (2013). The Struggle for Sentencing Reform. In Ashworth & J. Roberts (Eds.), Sentencing Guidelines (pp. 236–256). Oxford: Oxford University Press. Tata, C. (2019). “Ritual Individualization”: Creative Genius at Sentencing, Mitigation and Conviction. Journal of Law & Society, 46 (1), 112–140. Tonry, M. (2016). Sentencing Fragments. Oxford: Oxford University Press. Tonry, M., & Frase, R. (Eds.). (2001). Sentencing and Sanctions in Western Countries. New York: Oxford University Press.

2 Sentencing Research and Policy: Presumed Autonomous Individualism

Abstract Sentencing scholarship and policy-thinking is dominated by an ongoing battle between two fiercely opposing camps: the ‘legal-rational tradition’ and the ‘judicial-defensive tradition’. They each depict an empirical portrait of decision-making, which results from their respective normative preoccupations about the question of reform. Yet despite, or possibly because of, their mutual normative opposition, they in fact share the same taken-for-granted world-view of sentencing. This world-view is seen through a lens of presumed autonomous, property-owning individualism, which imagines sentencing to be composed of competing autonomous entities, each possessing their own inalienable (gendered) properties. Having exposed these assumptions, this chapter argues that while the widely assumed opposition between rules and discretion makes sense in abstract analysis, once we examine everyday practices the opposition dissolves. The chapter unearths the roots of this rules-discretion binary: an asocial and engendered proprietorial conception of freedom and coercion. Keywords Sentencing research · Sentencing reform · Case facts · Gender and discretion · Gender and law · Rules and discretion

© The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_2

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Map of Chapter Two Section 1 outlines the two giant traditions of sentencing scholarship and policy thinking. The impassioned mutual opposition of ‘the legal-rational tradition’ and ‘the judicial defensive tradition’ dominates the research and policy landscape. However, as Sect. 2 proposes, despite their furious disagreement about reform, they in fact share the same empirical assumptions reflected in and projected onto a ‘cosmos’ of presumed autonomous individualism. Section 3 examines the competition between two supposedly self-contained entities: official rules versus discretion. Querying whether in everyday practice the two are really so distinct, we will unearth the roots of this thinking, namely: an asocial conception of freedom and coercion; discretion conceived as personal property; and the engendering of the rules-versus-discretion binary. Revealing how cases are thought to be composed of autonomous separate individual stimuli, Sect. 4 exposes the assumptions behind such analytical thinking. Concluding, Sect. 5 argues for an alternative to the tradition of autonomous individualism.

1

Two Giants of Sentencing Thought in Combat

Sentencing scholarship and policy thinking are dominated by the combat between two giant traditions. I will call these ‘the legal-rational tradition’ and ‘the judicial-defensive tradition’. Although locked in furious combat, I will show that their differences are in fact largely ones of emphasis, as they share the same assumed ontology of sentencing. Both traditions are rooted in a paradigm of autonomous individualism centred on the judge as a singular, self-contained individual who naturally possesses freedom unless ‘his’ freedom is interfered with externally. This paradigm is further reflected in and sustained by a conception of the wider sentencing cosmos composed of autonomous individual, selfcontained entities (e.g. factors). Depicted as competing and colliding with each other, each entity nonetheless remains essentially unchanged, selfpossessed, retaining its own intrinsic characteristics. Let us first outline these two traditions.

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The Legal-Rational Tradition

On one side, and in the vanguard of calls for sentencing reform, are those advancing what I call the ‘legal-rational tradition’ of sentencing scholarship and reform. This is advanced by most (but not all) sentencing law and penology academic scholars (e.g. Ashworth 2015; Bagaric and Wolf 2018; Chanenson 2005; Chiao 2018; Freiberg 2014; Frase 2012; Henham 1997, 2014; Lovegrove 1989, 2008; MacKenzie 2005; Miller 1989; Padfield 2012; Roberts and Harris 2017; Tonry 2016; Tonry and Frase 2001; Von Hirsch et al. 1987), supported by most quantitative sentencing researchers (e.g. Pina-Sánchez 2015; Steffensmeier and Herbert 1999; Spohn 2009) as well as civic society reform bodies, and a few judges and practitioners (e.g. Frankel 1972; Marcus 2005; Roberts and Cole 1999). By ‘legal-rational tradition’ I refer to a view of sentencing dominated by fear of the power of the state, personified by the individual judge. As a state actor, her discretion is inherently suspect. Central to the legal-rational tradition is a concern to advance progressive legal values (e.g. fuller and more genuine legal equality; access to justice, etc.) by developing a more rational approach to sentencing. Two tenets are central to this tradition: the belief in ‘juridification’1 and transparency. They are the motors propelling the research and policy reform thinking of this tradition.

Juridification Through its appeal to Rule of Law values, juridification is understood to ensure structured, open and rational decision-making, achieving legal equality (including consistency) in decision-making, and predictability. For legal-rationalists, discretionary power leads to arbitrary, secretive or

1 Juridification

is an appeal to Rule of Law sentiments including: the impersonality of decisionmaking; truth-finding in each individual case; legal equality (including equality in and before the law, equal access to law and a ‘level-playing field’ or ‘equality of arms’ between the individual and the state); challenge-ability of state decision-making; openness, transparency, reason-giving and accountability; rationality and logic in decision-making based on the application of facts to clear rules.

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mysterious, chaotic and unequal decision-making, ultimately resulting in state tyranny. Juridification insists on the need for principled reasoning, logic and coherence. Without the structuring and restricting role of law (conceived of as official legal rules), decision-making would be essentially free, unpredictable, arbitrary and open to abuse. From the 1960s onwards2 penological and legal scholarship has been at the forefront of critiquing sentencing practices as inchoate, incoherent and inconsistent (e.g. Ashworth 2015; Henham 2014; Lovegrove 2008), arguing for legal-rational reforms to structure decision-making. In castigating the ‘lawless’ state of sentencing in the USA, Frankel (1972) famously and influentially encapsulated the idea of discretionary sentencing as ‘a wasteland of law’ resulting in ‘chaotic’ and ‘anarchic’ practices. Von Hirsch et al. (1987), who took up the call for principled juridification in the US, claimed that, without the proper control of rules, ‘sentencing patterns largely emerged by happenstance’ (Von Hirsch et al. 1987: 4). For legal-rationalists, the lack of intellectual and principled ‘coherence’ means that decisions are made not according to the deduction of the logical application of penal principles, but therefore by the inchoate, random proclivities of autonomous individual sentencers. In a seminal study, Hogarth (1971: 6) summed up and propelled this concern by concluding that there is ‘a lack of agreement among judges in their approach to sentencing problems, which in turn, leads to disparity in sentencing practice.’ A second result—regarded by the legal-rational tradition as the inevitable result of freedom without law—is the pernicious impact of unjustifiable inequalities in decision-making, for instance in terms of race, or other unwarranted inequalities of treatment (e.g. Hood 1992; Spohn 2009; Lammy Review 2017; Steffensmeier and Herbert 1999).

Transparency The second central tenet of the liberal-rational tradition is a faith in the open explication of sentencing. Regarded as an essential requirement, transparency is thought to be self-evidently necessary in the advance of 2 Some

early studies included for example, Green (1962) and Hood (1962).

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rationalisation (e.g. Bagaric and Wolf 2018; Chiao 2018; Miller 1989; Thomas 1963). In this way, the legal-rational tradition argues that not only are state excesses limited, but also that decision-making is rendered more logical and reasoned. Through its belief in the healthy competition of ideas and arguments, knowledge is advanced. Accordingly, the explication of reasons allows decisions to be reflected upon and challenged. A more rational jurisprudence then emerges (e.g. Miller 1989; Thomas 1963; Henham 2014; Ashworth 2015). The critique of discretionary judicial decision-making in sentencing has incited legal-rational scholars to castigate the judicial claim that sentencing is (or should be) an ‘instinctive’ or ‘intuitive synthesis’.3 Such a claim has become something of a bête noire to scholars in the legal-rational tradition, horrified by its brazen defence by the Supreme Court of Victoria in Australia which appears to accept, even approve of, what legal-rational critics label an ‘unstructured’ and ‘incoherent’ approach to decision-making (Darbyshire 2011; Bagaric and Edney 2013, 2017; Bagaric and Wolf 2018; Lovegrove 2008).4

1.2

The Judicial-Defensive Tradition

In direct opposition to those normative aims, there is an equally long tradition of resistance to such juridification. I call this ‘the judicial-defensive tradition’.5 It is best seen as a reaction against or critique of the demands of the legal-rational tradition. Its key refrain emphasises the ‘wisdom’ and pragmatic good-sense of individual judges as opposed to abstract principles and evidence (e.g. Brown 2017; Franko Aas 2004, 2005; Tombs 2008). Many, but by no means all, judges as well as some lawyers have long expounded this defence. At its strongest, this is sometimes (and rather ambiguously) referred to as ‘individualised sentencing’—a term used not 3R

v Young V.R (1990); R v Williscroft (1975); Wong v The Queen (2001) (at 74–76). will address the idea of intuition and synthesis more fully in Chapter 3. 5 Unlike the legal-rational tradition, the defensive-judicial tradition is, as we shall see, better thought of as a critique of reform than as advancing any fully articulated, systematic approach. Indeed, the judicial-defensive tradition tends to eschew the very idea of large-scale principled and systematic arguments. 4I

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only to highlight the importance of treating each case individually, (which the legal-rational tradition would not deny), but something more absolute. For the judicial-defensive tradition, ‘individualised sentencing’ denotes more than attending to the unique particularities of the case; it necessitates the claim of inter-case incomparability—that each individual case is wholly unique and therefore one case cannot truly be compared with another. Therefore, the decision should be left to the wisdom of the judge, who is fully aware of the unique and particular facts and circumstances of each case. The refrain which flows from this the claim of inter-case incomparability is that there is no such thing as true consistency: every case is wholly unique and incomparable. If taken literally, this claim is as illogical as it is nihilistic. Writing over five decades ago, Hood (1962: 16) neatly exposed its self-contradiction, especially as it is invariably combined with the demand to trust the experience of each individual sentencer: magistrates and judges frequently turn to precedent for their ruling and place particular value on their experience in sentencing. Now, if this experience is to be of value, then all cases cannot be unique, they must be comparable at least in some respects; and even if it is agreed that all cases are unique in some sense, this cannot be decisive in the practice of sentencing, for frequently decisions are reached with the aid of ‘experience’.

Furthermore, ‘wisdom’ implies and depends on ‘experience’. Indeed, the claim that ‘every case is wholly unique’ contains its own contradiction. The very term ‘case’ necessarily refers to an instance of some larger phenomenon or type. Rather than taking such statements about inter-case incomparability literally, it is perhaps better to see them as hyperbolic: a way of staking claim to the laudable aspiration to treat individuals as individuals not as things or composites of an insensitive, singular standard system. The inter-case incomparability mantra may be better understood as a way of reciting and reminding oneself and one’s court community about certain cherished values.6 Scepticism about the wisdom of each individual judge to decide each case as wholly unique is not new. Many, though by no means all, judges 6 See

further Chapters 4 and 5 about the work of ‘the sentencing professions’.

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have long (understandably) resented the idea that their freedom to choose the appropriate sentence should be regarded as inherently suspect. Even though the arguments of the legal-rational tradition apply equally to all of those who enjoy wide discretionary power, judges may appear to feel personally offended and diminished by the proposition that their decisionmaking is in need of greater ‘structure’. It is easily taken to suggest that they abuse their power. Crucial to professional, and especially judicial, work is that it is felt to be deeply personal,7 and so it is difficult for judges (and other professionals) not to take it as a personal criticism. After all, judicial work is self-consciously a matter of public service and sincere, individual and personal duty, making difficult, sometimes almost impossible, decisions after wrestling with one’s conscience.

How the New Penology-Inspired Literature Fortifies the Judicial-Defensive Tradition In the last two to three decades, the judicial-defensive tradition’s resistance to legal-rational reforms have found common cause with a strand of criminological writing (e.g. Frank Aas 2005; Tombs 2008). The anxieties and arguments made by literature inspired by the ‘new penology’ suggest that sentencing is increasingly dominated and controlled by techno-rational managerialism; and characterised by a loss of the concern with the individual. This literature identifies a major transition in penal practice away from welfare-based values and concern with the individual of ‘the old penology’ towards the increasing centrality of risk technologies, so that decisions are made on statistical associations with the characteristics of that case and actuarially inspired rationalities. Increasingly, judicial sentencing is said to be dominated by the rise of new risk and managerial logics. By identifying a worrying growth in managerialism, at the cost of impressionistic reasoning, the judicial-defensive tradition has found renewed voice, fortified by criminological warnings about the drift into a managerialist dystopia.

7TH Marshall’s classic essay on professions notes the powerful and enduring sense in which the professional ‘gives of himself ’ (see Chapters 4 and 5).

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Penological work worried about the unrelenting march of techniques of rational calculation and managerialism, and inspired by concerns about the mechanistic and de-individualising tendencies of ‘the new penology’, rearticulates a fear of (new forms of ) power. Although much of this work has focused on the changing character of penality generally (e.g. Garland 2001; Feeley and Simon 1992, 1994), there has been some focus on judicial sentencing raising concerns about the rise of these logics (e.g. Franko Aas 2005; Tombs 2008). This critique is found not so much in the explicit public power of the individual judge, but in the unexamined power of managerial systems, procedures and mechanisms of surveillance, which appear to be diminishing discretion and professional judgement more generally. In particular, there is a concern that juridification and rationalisation result in a mechanical accountability, an unjust uniformity masking substantive inequality, and the de-individualisation of otherwise unique individual cases (e.g. Franko Aas 2005; Stith and Cabranes 1998; Tombs 2008). Chief among the targets has been the US Federal Sentencing Guidelines, which has been critiqued by many as a mechanistic, dehumanising pseudo-rationality. Its numerical and staged approach is believed, in fact, to ratchet up punitiveness (e.g. Stith and Cabranes 1998). Despite the huge world-wide attention drawn by those Guidelines, in which the sentencer has to ‘score’ the seriousness of the offence and the offender’s criminal history, they have not been replicated elsewhere and indeed are now voluntary (e.g. Frase 2007). Nevertheless, and despite the fact that they were also critiqued by many legal-rational scholars, the Federal Guidelines have become emblematic of a world-wide rise in punitiveness brought about by machine technologies and de-humanising managerialism. Alongside this, it has been argued, there are other linked phenomena including risk-assessment, sentencing information systems and databases, de-professionalisation, and the diminution of the discretion of sentencing professionals, including judges (Brown 2017; Franko Aas 2004, 2005; Perry 2007; Tombs 2008) lawyers (e.g. Newman 2016; Welsh and Howard 2018) and probation officers (e.g. Anninson and May 1998; Mawby and Worrall 2013; more conceptually, see Roach Anleu 1992). Some penologists, inspired by Foucaultian preoccupations, are so concerned with this development that they regard the ability to extract and

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abstract previously implicit professional knowledge as signalling a new threat. By rendering knowledge explicit, it becomes standardised, portable, and abstracted from the unique individual case: ‘Some knowledge cannot travel because people who have it see it as inalienable’ (Franko Aas 2005: 55). Franko Aas (2005: 61) conjures a foreboding picture of this explication of knowledge: The thinking process, previously uniquely individual, becomes externalised, and then, at the next step, standardised … Standardisation is not just a technical but a political project …. Many judges … maintain that the legal and personal knowledge that they have obtained with years of experience simply cannot be externalised and transmitted independently of the people who possess the knowledge. … Disembodied information is free to travel across time and space.

Though not writing from a new penology perspective, other exponents of the judicial-defensive tradition readily concur that true knowledge can only really be tacit, unspecified and internal: owned by the individual from whom it cannot be rightfully extracted. Brown concludes from interviews with judicial sentencers who, unsurprisingly, were ‘not in favour of legislation restricting their discretion’ (Brown 2017: 232), that it ‘enables us to learn from those whose lives represent the wisdom of accumulated practice’ (Brown 2017: 227, emphasis added). Here again, like Franko Aas (2004, 2005), we have the idea that wisdom is inalienable, a kind of inherent, personal property of the individual sentencer. In contrast to the self-consciously progressive ambitions of the legalrational tradition, the judicial-defensive tradition does not seek to offer any kind of systematic reform programme. On the contrary, given its suspicion of ambitious reform, we are better to think of it as a valuable corrective to the potential excesses of the legal-rational reform projects. It can be thought of as a reminder of the downsides of seemingly progressive reforms. For example: the urge to systematise may come at the expense of individual variations; the force of rationality easily discards the value of humanity and emotion; the insatiable system desire for expeditious case-disposal sacrifices human communication; efficiency may forget the

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individual’s unique needs. Likewise, the legal-rational tradition identifies the deficiencies of the judicial-defensive tradition. Put in this way, we can begin to see that, despite their mutual normative opposition, the conventional ways of thinking about sentencing in fact only have appeal in contradistinction to each other. They are a response to and critique of each other, locked in a perpetual battle of mutual contradiction between two eternal impulses: uniformity versus variation; mechanisation versus spontaneity; change versus conservation. One could not exist without the other. If the project of the legal-rational tradition was unheard of, there would be no need for the scepticism and critique of judicial-defensive tradition; and vice versa. Yet despite their normative mutual opposition and, indeed more accurately, precisely because of it, these two sensibilities share many of the same unexamined empirical assumptions about sentencing. They simply disagree on which qualities are good and bad.

1.3

The Two Traditions Share the Same Assumptions

Although dichotomous, the traditions share a series of common assumptions about the empirical character of penal discretion, rooted in particular epistemic and ontological conventions. In many ways the legal-rational tradition and the judicial-defensive tradition (including the new penologyinspired sentencing literature) represent different emphases within liberalism. They are each other’s mirror image. The key difference is normative: what one thinks is good the other thinks is bad. They both seek a ‘balance’, but simply disagree on where that balance should be struck. These assumptions are manifested in a series of binary oppositions which make sense in the abstract, but not upon closer empirical inspection at the level of daily practice. Table 1 summarises some of the main ways in which the two approaches share a series of sentencing binary divisions. Perhaps because both of the conventional approaches have been so preoccupied with their nemesis, there has been little thought about their shared assumptions about how sentencing operates in reality. Indeed, most

Consistency

The Decision Process

Rules

Discretion and Rules

Key Starting Point of Study

Top-down: legality as the starting point. Official policy and formal instruments Legality; penal philosophies; analysis of factors Zero-sum Normative dangers of discretion Balance—need more/better rules Is (and Should be) based on penalphilosophical principles Rules are essentially inert The individual judge is the central focus Analysis of given facts as factors Decision-Making is and should be staged and sequential staged Individual intellectual-cognitive process by judge through penal philosophies and should be explicated to aid openness, accountability and transparency (normatively good) None without Rules/principles Need greater consistency

Legal-rational tradition

The individual judge is the central focus Facts are given to the judge Decision-Making is becoming staged and sequential (normatively bad) Individual judicial process of cogitation (good) is being endangered by policy/technology imposing on human process (normatively bad). Explication of individual judicial thinking is a trap Uniformity (false consistency) due to excessive inflexible rules and statistical associations Loss of unique individuality

Top down: legality as the starting point. Official instruments, and managerial Legality; official policy statements and changes; official and media discourse Zero-sum Normative benefits of discretion Balance—need fewer rules Too many rules results in hyper rationality Rules are essentially inert

Judicial-defensive tradition

The legal-rational tradition and the judicial-defensive tradition: normatively opposed, but same assumptions

Conception of Change

Table 1

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work on sentencing is orientated towards its reform or critiquing that reform without reflecting on how we should conceive and study discretionary sentencing decision-making. Let us now unearth the assumptions shared by both opposing traditions which prevail in the ‘cosmos’ of sentencing thought.

2

Autonomous Individualism and the Sentencing Cosmos

Assumed ways of seeing sentencing decision-making are reflected in and sustained by a broader view of the world. Taken-for-granted cultural ideas of the natural place of the human are seen as simply the way of the world or ‘cosmos’. Culturally-speaking, a general theory of the cosmos, including the place of the human within it, puts everything in its right place. Our culturally contingent and specific social and political assumptions are believed to be inscribed forever. They are regarded as timeless, inevitable and inescapable, constituting a ‘cosmic unity’ (Douglas 1982). For instance, the nature of human societies is reflected in and shaped by an understanding of divine characteristics instantiated in the universe, which are held to be sacred and are collectively venerated (Douglas 1966, 1982; Durkheim 1912). Both the legal-rational and judicial-defensive traditions share a broader world-view, or what we might call a ‘sentencing cosmos’. The ‘sentencing cosmos’ is the larger set of metaphysical assumptions about the nature of being, human origin and purpose, and the place of different activities (e.g. punishment) within that ‘natural order’. It projects epistemic ideas about the characteristics of knowledge, and ontological ideas about basic categories of being and their relations. The socially constructed idea of autonomous individualism so associated with the rise of western liberalism and driven forward by the rise of capitalism (Durkheim 1912; Weber 1922) is a, perhaps the, dominant political and cultural ideology in western society, reflected and reproduced in those scholarly and policy debates about sentencing. Importantly, the idea of autonomous individualism as the self-evident category of agency and consciousness is itself a social construct, just as other cultures across time and place also assume different

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categories of agency and consciousness to be inescapable, self-evident and timeless. Through analogy to nature, constructed social classifications and beliefs are ‘naturalised’. Douglas (1986) argued that ‘legitimised social groupings’ minimise a sense of uncertainty and increase order and predictability among its members. Key to this is the appearance to members of socially constructed ways of thinking as normal, obvious and, above all, natural. Analogy is key to: the naturalization of social classifications. There needs to be an analogy by which the formal structure of a crucial set of social relations is found in the physical world, or in the supernatural world, or in eternity, anywhere so long as it is not seen as a socially contrived arrangement. When the analogy is applied back and forth from one set of social relations to another and from these back to nature, its recurring formal structure becomes easily recognized and endowed with self-validating truth. (Douglas 1986: 48)

The autonomous individual is seen as an obvious given within the ‘natural order’ of the sentencing cosmos. Populated not only by seemingly autonomous individual people, the cosmos is also occupied by competing autonomous individual forces (e.g. rules and discretion, various individual aggravating and mitigating factors etc.). The cosmos of sentencing reflects and regenerates the liberal ideology of competition between self-possessed autonomous individuals, each of whom is believed to own an inalienable set of individual properties. These autonomous individuals possess not only themselves, but also nature. The idea of autonomous individualism recurs through the main debates between the legal-rational and judicial-defensive traditions. In truth, they are debates about and within the shibboleth of presumed autonomous individualism. Even when they appear as debates between the individual and the collective (e.g. ‘the system’), the collective is seen as no more than an aggregation of autonomous individual entities.8 8 For example, in the continually repeated phrase ‘the unique individual case’ is combined an allusion

to the natural biological world. It implies that what comes before the courts is naturally occurring regularity seen in man-made taxonomy of classification (types) supplemented by the possibility of a degree of natural individual variation, or ‘exceptional cases’. Thus it is possible to maintain the

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The central thread binding together the conventional sentencing worldview, shared by both the legal-rational tradition and the judicial-defensive tradition, is the idea of the autonomous individualism of the (sentencing) cosmos. This overall conception of the sentencing cosmos consisting of autonomous individual entities seems to be a self-evident and natural reflection of the inescapable and timeless way of the universe.

2.1

Separate Autonomous Individual Entities

In this section, we consider how the cosmos assumed by most sentencing thought is composed of separate, individual, self-contained entities. Each of these separate, individual entities is imagined to possess its own inherent, intrinsic and unique characteristics, which seem to impact on the universe in their own separate ways. They may collide with each other, vying for dominance, but this competition is imagined not to change them: they retain their essence, their intrinsic and unique properties. Despite interaction, they remain essentially unchanged as self-contained, separate autonomous forces. In this depiction of sentencing we see the liberal conception of autonomous, self-possessed property-owning individualism.9 Each autonomous individual owns his10 own property, each competing for ownership and dominion. What are these individual entities? They are all sentencing ‘matter’. They transcend (and conjoin) the taken-for-granted western division between ‘people’ and ‘things’ (Pottage 2004). They are depicted as existing in a series of binary duels: law/rules versus discretion, unique individual cases versus principles to be applied to unique cases, facts versus law, aggravating versus mitigating factors, the offence versus the offender, reason versus emotion, etc. These binary competitions refer to separate, individual and

logically paradoxical belief that ‘every case turns on its own facts’, ‘every case is judged on its own merits’, every case is unique. 9 Although legally we might observe and debate that persons are not property, the metaphor of the self-owning person is culturally central to the trope of autonomous individualism. The idea of each of us as self-owning entities fortifies ‘the line of non-interference around the person’ and it shows us each to be ‘bounded, autonomous and distinct’ (Davies 2007: 27). 10 For reasons explained below, my use of the male pronoun here is deliberate.

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(seemingly) self-contained ‘things’, each of which are thought to exist, despite interaction, as essentially intrinsic in themselves.

3

Law Versus Discretion: Are Legal Rules and Discretion Really Opposites?

In sentencing scholarship and policy thinking, official legal rules, whether they be statutory, case-based, regulatory, or guidelines, are regarded as the opposite of discretion. They are synonymised with restricting freedom of decision-making. Without legal rules to govern this freedom, decisionmaking is assumed to be unstructured, ungoverned, unpredictable, arbitrary, allowing ‘anarchy among judges’ (Parent 1988: 2–3). In the absence of rules controlling decision-making, sentencing is assumed to be selfevidently discretionary: free and lacking structure. The only disagreement between the legal-rational and judicial-defensive traditions about the law versus discretion duel is whether legal rules and discretion are, in general, a good or bad thing. As explained earlier, despite the impassioned debate between these two traditions it comes down to where to strike the right ‘balance’. Legal rules and discretion are simply viewed as a direct trade-off. More rules means less discretion and vice versa (e.g. Bagaric and Edney 2018; Brown 2017; Franko Aas 2004, 2005; Frankel 1972; Hutton 1995; Lovergrove 1989, 2008; O’Malley 2013; MacKenzie 2005; Spohn 2009). Discretion, in this formulation, is defined as an absence: a blank, space. Invariably, it is defined by the presence or absence of legal rules. It is seen to exist only when legal rules permit it so to do. Take for instance, the famous formulation by Dworkin, who uses the analogy of a doughnut: ‘Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction ….’ (Dworkin 1977/1977: 48). In this analogy, discretion simply does not exist unless law allows. It is the law which ‘grants’, ‘permits’, ‘affords’ discretion. Discretion is defined as a negative space. It is a void, a gap, an absence, emptiness, a vacuum, a hole. The reliance on this conception of discretion and rules (e.g. Padfield 2012) leads legal scholars to identify ‘the gap problem’. The gap problem

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is that between what legality supposes (‘the theory’/‘law in the books’) and the empirical reality of practice (‘the practice’/‘law in action’). However, this ‘gap’ is only a ‘problem’ if it is expected that legal rules are, or should be, the primary means of governing behaviour. It is only unexpected if it is assumed that legal rules are determinative, exerting more or less straightforward control over decision-making behaviour. Indeed there is only a ‘gap’ when viewed through the juridical lens of both the legal-rational and judicial-defensive traditions, both of which counterpose rules and discretion. This prevailing juridical orthodoxy, on which both traditions rely, is this: if sentencing lacks legal rules then it must be discretionary, individually directed and un-patterned. So, for instance, when legal-rational sentencing researchers and reformers discuss ways of ‘structuring discretion’, they mean ways of ‘taming’ its ‘excesses’ with legal rules (e.g. Spears 2005). Discretion is imagined without clear form or size, except in as much as legality permits such form and imposes restriction. Exponents of the judicial-defensive tradition do not dispute this binary, they are merely anxious to put the case against imposing further restriction (i.e. rules). These are binary either/or definitions of freedom: either there is coercion or there is not; one is an essentially autonomous individual unless there is state interference. This binary thinking elides how coercion and freedom are not simple distinct binary states of being, but subtle, dynamic and mutually constitutive. No individual can exist apart from the social. What may seem to be individual autonomy is reflective and constitutive of collective social activity: the idea of individual autonomy is itself socially specific and socially constructed. Likewise, power is, as Foucault reminds us, more dispersed than simply the commands of the state (Foucault 1977, 1980). Increasingly, he argues, power is diffused in a range of subtle, capillary micro-relations. At the level of empirical analysis, this may make it difficult to tell the practical difference between the formal sovereign commands of the unitary state and taken-for-granted practices, processes, regulations, codes, conventions and assumed ways of doing. Let us remind ourselves that the formal law of the state is almost always indeterminate and ambiguous, and dependent for its practical meaning on its application to the facts and circumstances of the particular case. A key message of Chapter 3 will be to suggest that

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law (seen as coercion) and discretion (as freedom) are mutually inhabiting and protean, taking on different forms at different moments and from different perspectives. Except in abstract official discourse,11 at the level of actual practices there may often be no sharp dividing line between what we may otherwise call ‘law’ and ‘freedom’: they may merge or even appear to swap qualities, making it virtually impossible to keep track of which is which: On closer examination we see discretion and law are distinguishable primarily in the label that the legal system accords to a particular instance of judicial decision-making. (Chase 2005: 80, emphasis added)

The principal sentencing debate is centred on where the appropriate balance should be struck between rules and discretion. Discretion and rules are positioned in a zero-sum game. They are seen as equal and opposite forces, and thus the debate between the virtues of ‘discretion’ and ‘rules’ is, despite all its passion, ultimately not born of a difference of principle, but simply a difference of emphasis. So if legal rules and discretion are only opposites in abstract discourse, and as will be argued in Chapter 3, in practice mutually constitutive, we might ask where the idea of this antithetical division comes from. After all, to apply law is always to apply discretion, always to interpret ‘the facts’ of the individual instant case and always to fit rules and facts together.

3.1

Coercion Versus Freedom: The Autonomous Individual Judge?

This binary scheme of law as opposed to discretion is reflective of a broader liberal political, legal, social and economic world-view. This rulesdiscretion binary aids the construction of a specific idea of freedom as naturally residing within and belonging to the individual, as long as it is not ‘interfered’ with by others. In this conception, freedom (of which discretion is one instance) is defined as the absence of the state. It is ‘the hole 11 Nonetheless,

it would be wrong to dismiss official discourse as somehow irrelevant disguising reality. It constitutes its own currency of thought and identity.

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in the doughnut’, a blank space of liberty. Freedom is imagined to inhere in the individual in the absence of state coercion. Other forms of power (e.g. financial, familial, gender, everyday social relations) are, at best, seen as secondary to this starting point. Complete freedom is something each individual is assumed to have, by default, as his12 personal possession, an almost God-given natural state, unless it is infringed physically by others or the state. Discretion, conceived as freedom, is seen as the absence of state interference. Here we can begin to see how the binary way in which law and discretion are imagined reflects and reproduces political, gendered and economic modes of thought about sentencing, and decision-making more generally.

An Asocial Conception of Freedom and Coercion When we explicate these ideas, it becomes clear that sentencing scholarship and policy-thinking are dominated by a remarkably asocial conception of coercion and freedom. Not only is it binary in that each are defined in mutual contradistinction, but they assume, and so constitute in everyday discourse, a portrait of a sovereign individual (i.e. the rational, autonomous man of law: e.g. Naffine 1998). The sovereign individual’s freedom is assumed to be pre-existing, without being shaped, influenced or created by anyone but himself. In this depiction, he is the man of law who is imagined to exist before and apart from any concept of the social (Naffine 1998). Though he may be subject to ‘external’ social dynamics, he is separate and analytically separable from the secondary world of the social environment or ‘context’. The individual is imagined to pre-exist social expectation, or indeed the requirements of everyday social obligation. Freedom is a possession of, resides within, and inheres to, the individual. Whoever is not touched by state coercion is assumed to be free. Power is thus reduced to a narrow definition focusing on the state’s interference with atomistic individual autonomy. He is free from state control: owning himself, able to contract to sell his self-possessed labour to others on freely selling labour.

12 For

reasons which will become clear, my use of the male pronoun is, again, deliberate.

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The Self-Possessed Individual The idea of the individual as the natural starting point, as if he existed before the social, is enacted and elaborated in legal and political theory. These re-constitute and legitimate as natural the idea of pre-social and prestate man (cf Pateman 1988; Naffine 1998: footnote 64). Social contract theory, for example, is often relied upon as an intellectual device to explain and rationalise how and why individuals ought to and did accept the need to live in a community (e.g. Rawls 1971). These devices, typically called ‘state of nature’, must suspend all social reality so as to strip the human back to imagine his barest essence. This may be achieved in some pre-historical caveman myth of the founding of the state, or it may be some kind of ‘what if?’ desert island scenario. The state of nature device conjures up the idea of a primordial past (or desert island-style thought experiment) in which autonomous pre-social and pre-state individuals must decide whether it is in his individual selfinterest to cooperate or conflict.13 Despite the answer being cooperation and varying degrees of pooling of individual sovereignties, the starting point of freedom is conceived as the pre- or a-social individual who naturally exists autonomously. The natural pre-existing idea is of an agreement to suspend competition between ‘sovereign’ individuals. Thus, sentencing research tends to focus on the individual judge as its ‘natural’ primary starting point. It is only as a secondary step that it may look at the individual judge ‘in context’, or in his/her ‘environment’ as something essentially external to the individual autonomous judge. Rather than starting with the study of social groupings, or even recognising that ‘the individual’ cannot possibly pre-exist the social, the ‘social context’, ‘surround’ or ‘environment’ is conceived as secondary to the pre-existing individual: an afterthought to the definitive singular, self-contained individual. As I will now explain, the concept of private property is central to these ideas, especially that the self is and should be bounded and self-contained (Davies 1999, 2007; Naffine 1998; Nedelsky 2011).

13 Rawls’

(1971) device of the ‘original position’, in which one is asked to imagine oneself ‘free’ from the biases of all social characteristics and interests, is a more radical variation on the theme in which one’s social being can be thought to be separated from individual rationality.

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Discretion as the Personal Property of the Autonomous Individual Judge In the prevailing formulation of sentencing thought, discretion ‘belongs’ to the individual who is legally required to make the decision and owned by the individual autonomous judge. We talk of discretion using the possessive pronoun (his or hers); matters being ‘at the judge’s discretion’; or ‘the judge’s court’, etc. The idea of discretion as a property belonging to and owned by an individual resonates with the larger intellectual projects of liberalism and capitalism to which property is so central. As Blackstone (1766: 2) famously observed14 : There is nothing which so generally strikes the imagination and engages the affections of mankind as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

Hence Tay (1978: 10) explains the central value of property in constituting the autonomous individual: Property is that which a man has a right to use and enjoy without interference; it is that which makes him as a person and guarantees his independence and security.

Could one say the same of the totemic importance of discretion to the idea of the autonomous individual judge? In nearly all scholarly and policy thinking, discretion is conceived of as the judge’s ‘sole and despotic dominion’. To paraphrase Tay, discretion is regarded as that which a judge has a right to use and enjoy without interference; it is that which makes him a judge and guarantees his independence and security. The idea of property is central to the idea of autonomous individualism. ‘Property is a defining metaphor for a particular kind of self (bounded, individualistic, atomistic)…’ (Davies 2007: 116). Personhood is configured ‘through the 14 As property scholars have rightly pointed out, Blackstone’s observations have often wrongly been taken as a celebration of this idea, which he proceeds to question (e.g. Davies 2007; Schorr 2009).

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metaphor of property and in particular through the notion of excludability and the consequential territorial space attributed to persons’ (Davies 1999: 336). The idea of the autonomous individual and the idea of property ‘are therefore conceptually inextricable—property metaphors define the boundaries of the self, and the person determines the shape of property’ (Davies 1999: 336).

The Role of Property in Sustaining the Rules versus Discretion Binary We can see how the binary conceptualisation of legal rules as opposed to discretion is reflected in and constitutes core ideas in modern western liberal economic, political, social and legal thought. The shift from feudalism to capitalism, from familial obligation to free individual contract is often told as a story of emancipation. Freedom and autonomy are exemplified in the idea of the sovereign, self-contained individual. As Naffine explains, this is an assumed idea which is in fact particular to modern society: ‘In the medieval world, persons were assumed to be interdependent … [their social role] assigned by custom, not by choice’ (Naffine 1998: 195–196). The idea of individual property plays the central animating role in legal, political, social and economic liberalism (capitalism) and the binary ideas of freedom and coercion. Free contract and consent depend on ‘the story of the man who quite naturally has property in his person, who has self-ownership’ (Naffine 1998). The property which man owns and consumes is thought to be external to him. There is a clear division between the self and things. Thus, the claim to discretion as property is both a claim to individual autonomy and a way of dividing off spheres of work and responsibility. The metaphor of property is central to exclusive professional ownership of (supposedly) autonomous, individual elements of the sentencing process.15 Yet, ironically, the very notion of individual private property is itself necessarily relational:

15 See

further Chapters 4 and 5 on the work of the sentencing professions.

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[P]roperty describes a legal relationship between persons in respect of an object …. The invocation of a property right entails the proprietor’s exercising control over a thing, the object of the property against the rest of the world which is thereby excluded from use. (Naffine 1998: 197)

As Naffine (1998) explains, the idea of property is split between two kinds: ‘property for personhood’ (things one owns) and ‘persons as property’. As well as owning external things, personhood requires self-possession: The claim of property in oneself is an assertion of self-possession and selfcontrol, of a fundamental right to exclude others from one’s being. It is a means of individuating my person …. (Naffine 1998: 198, emphasis added)

To achieve the idea of possession of oneself requires a mind/body dualism in which the physicality of the body is seen to be owned by the ethereal incarnate mind. Here the body is easily seen as ‘other’, alienated and fetishised, as if it is apart from the self (Davies 1999, 2007). As we will see shortly, by exposing the gendered character of this mind/body dualism, discretion is akin to the body. In this depiction of freedom, autonomous individualism is pivotal to the ideology of liberal capitalism and the rise of ‘the contract society’ (Naffine 1998). To argue for freedom and against the horrors of slavery (which ironically bankrolled the rise of capitalism) is to say that a man16 is not truly free unless he owns property: both in oneself and one’s things. The idea of ‘the person as self-proprietor remains a potent symbol of human autonomy as it emerges within the contractual society’ (Naffine 1998: 199–200). To make that argument about how human relations ought to be easily spills over into assuming how the reality of human relations must be. The cosmos of sentencing thought continues to operate in this legacy: reading empirical portraits off normative arguments. We have to ask ourselves, however, even if one is sympathetic to the normative claim of autonomous individualism, whether it is an accurate depiction of the everyday reality of sentencing decision-making practices. Furthermore, we should ask how this trope of 16The use of ‘man’ is deliberate here, not only because the rise of liberal capitalism initially excluded

women from its freedoms, but also because its ideas of freedom and coercion, discretion and rules are (as we shall see below) deeply gendered.

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the property-owning autonomous individual projects and regenerates the gendering of the cosmos of sentencing thought—a question to which we now turn.

Gender and the Rule-Discretion Binary The rules-discretion binary positions legality as subject and agent. The man-made law (seen as official legal rules) acts upon the object of discretion. The law-as-agent is the starting point from whose perspective we view the caprice and formlessness of discretion. These binary dichotomies correspond with and project socially ascribed gender characteristics and ‘an assumed standard of human sexuality’ (Naffine 1994: 11). This is exemplified, for instance, in how the idea of private property is central to the idea of the self-sufficient, autonomous individual male self possessing the female object. The concept of private property, as we have seen, reflects and sustains the idea of discretion and justifies the idea of the self-contained, singular, a-social individual sentencer. As Davies (1999: 329) observes, social hirearchies, especially those organised around sex and sexuality: are constructed by and reflected in property relationships…[T]hrough the notion of self-ownership, for instance, property takes on stereotypically masculine characteristics; but at the same time, the object of property is sometimes said to be structurally female, because the owner/owned, subject/object distinctions all correlate socially and epistemologically to the male/female distinction.

In other words the truly free man possess exclusive, territorial dominon. He is singular and self-possessed: all characteristics of the liberal person which are culturally male (Davies 1999; Nedelsky 2011). His property is his dominion and must be boundaried, enclosed and protected from predators. The imputed binary characteristics of legality and discretion correspond with and constitute imputed gender characteristics. The law/discretion binary is reflective of engendered binaries, which constitute and support autonomous individualism.

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Table 2 shows the symmetry of opposites corresponding with what Naffine (1994) has called the ‘possessive heterosexual form of ‘erotic love’. That possessive form, so deeply engrained in both romantic and legal thinking (not least about rape law), is marked by the ideal sovereign, selfcontained man who loves a woman by possessing her. He ‘pursues’ her, ‘breaks down her barriers’, ‘takes’ her, he ‘has’ her. In being possessed by him, she gives herself away while his sovereign autonomy is shown to be increased. She yields to him while he becomes a more empowered version of his essential self. She loses herself. It is the story of the capture, possession and taming by him. She is the passive recipient of his agency. This picture of erotic love is centred around implicit (but inescapable) coercion and violence. By equating freedom with separate and self-contained property-owning individuals, sexual intercourse is necessarily an act not of mutuality, but of domination and submission, invasion, dominion and possession (Nedelsky 2011). In the same way, the essential masculine quality of legal rules is thought to impact upon the formlessness of the unstructured caprice of feminine discretion. The man-of-law must conquer the woman-of-discretion who will eventually submit to his will and be changed, shaped and possessed Table 2

The engendered and engendering law-discretion binary

Law as official rules (male)

Discretion (female)

Subject/agent Starting point Solidity/substance Possessor Rational/reason/logical Coercive Analytical Head/mind Thinking Man-made Mechanical Ordered Controlled/structured Predictable Sequentially planned Exterior/outward facing/visible/open Known

Object/recipient Residue Vacuum/space Possessed Irrational/intuition/emotional Free Impressionistic Heart/body Feeling Natural Magical Chaotic Wild/unstructured Capricious/fickle Incoherent Interior/internal/concealed/secretive Mysterious

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by him. In conventional thinking, discretion is imagined as the residue of what is left untouched ‘by the surrounding belt of legal restriction’ (Dworkin 1977/2013: 48). This is a narrative of conquest, possession by the masculine subject of law and the feminine object of discretion. The man-of-law is unaltered by his pursuit and domination of the woman-ofdiscretion. He remains solid and enduring: the sovereign, self-contained autonomous individual. The woman-of-discretion is ‘structured’, ‘tamed’, rendered ‘coherent’ by the man-of-law. This conventional view of property-owning autonomous individualism is reflected in and practised by research and policy thinking. Even where (as in the legal-rational tradition), it urges reform, sentencing research and policy thinking has accepted the view that the reality of decision-making is that sentencing discretion is the property of the judge: his ‘sole and despotic dominion’ (Blackstone 1766: 2). This idea of property-owning autonomous individualism is reproduced in posited aggravating and mitigating factors. Typically, research and policy thinking presumes that discrete, autonomous, self-contained, competing factors exist as things in themselves. On the basis of this presumption, sentencing scholarship has sought to identify and measure which autonomous individual factors explain decision-making. Let us now unearth the assumptions implicit in this thinking.

4

Case Factors: Autonomous Individual Entities?

Although they disagree as to how far cases should be explicated, both the legal-rational and judicial-defensive tradition take for granted that cases are comprised of a combination of posited individual ‘factors’. These factors are imagined to possess their own individual and inherent essential properties. The sentencing cosmos is thought to include ‘factors’: autonomous, self-possessed competing individual forces.

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The Analysis of ‘Factors’

By ‘analysis’, I am referring to a way of conceiving and studying sentencing in which cases are assumed to be composed of an aggregation of individual entities. The analytical method seeks to break down these forces into their irreducible individual components. In this method, one entity may be broken down to reveal several autonomous individual component entities competing with each other, which may again be broken down through analysis to reveal further autonomous individual competing entities. The notion of case ‘factors’ carries with it two key suppositions. The first is that the sentencing decision process can be most meaningfully understood by dividing each case into its supposedly autonomous individual components. Each component is thought ultimately to be separate and distinguishable from each other. Second, each characteristic is thought to exert its own specific and distinct force acting upon the discretion of the decision-maker. That leads to the tacit assumption in much empirical research that case ‘factors’ can be extracted and analysed to discern the relative explanatory power of individual ‘pieces’ of information (e.g. Hogarth 1971; Lovegrove 1989, 1999; Steffensmeier and Herbert 1999). Some are conceived as ‘legal factors’ (i.e. legal rules discussed above), while others are grouped as non- or ‘extra-legal factors’ (e.g. the sex or race of the victim or offender, the demeanour of the individual), and yet others as the personal views of the judge (e.g. Hogarth 1971). These factors are most commonly identified as either ‘aggravating factors’ or ‘mitigating factors’ and ‘offence and offender factors’, each of which possess universal, inherent and fixed properties. Like the conception of restriction and freedom (law and discretion), factors are seen as autonomous, self-possessed individual agents. They may interact with each other, or they may be arranged in a hierarchy (e.g. as foci—Hartley and Spohn 2007; Hogarth 1971), but they are assumed naturally to exist as free in themselves, impacting upon judicial behaviour. In the cosmos of autonomous, sealed-off individualism, factors are essentially asocial, locked in competition with each other, vying for dominance. Criminal law and sentencing texts list what they have distilled as ‘factors’ which aggravate and mitigate the seriousness of cases (Boyle and Allen

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1990; Findlay et al. 1994: 213–246; Nicholson 1992; Walker and Padfield 1996). In this analytical approach, in which x, y and z factors impact on the sentencing decision in corresponding ways, measurement is, in principle at least, straightforward. Though it may involve many stages, it is an input–output model. Through the measurement of recurring statistical associations between different factors and sentencing outcomes, it becomes possible to produce a model to account for the penal direction (i.e. more or less severe sentence) and the extent (or weight) of the contribution of individual factors to sentencing outcomes. Thus, such statistical interrogations of the co-relations between factors (input) and sentence (output) allow analytical researchers to declare, for example, employment status counts of x percentage, gender accounts for y, offence accounts of z, offender accounts for u, employment for v, and so on. In conducting and consuming this research, so alluring is the promise to isolate and quantify the causal impact of different factors, to create formulae that finally ‘crack the code’ of decision-making, that it is easy to overlook its epistemic assumptions. Official data and research have been dominated by the tacit assumption that case ‘factors’ can be extracted and analysed to discern the relative explanatory power of individual ‘pieces’ of information (e.g. Hogarth 1971; Lovegrove 1989, 2008; Spohn 2009; Steffensmeier and Hebert 1999). Most research has consisted of: ‘attempts, generally unsuccessful, to obtain greater predictive accuracy. The typical approach to sentencing research is create a dependent variable (e.g. sentence length) that is then regressed on select legal (e.g. offence type and seriousness, history of offending) and extralegal (e.g. sex, race, socioeconomic status, plea bargaining) variables.’ (Mears 1998: 670)

Yet, what is a ‘factor’? How is a ‘factor’ identified? Both the legal-analytical and judicial-defensive traditions almost invariably assume ‘factors’ as given or obvious. Legal-analytical work is particularly concerned to explicate and measure factors. Typically, quantitative studies explain that x% of sentencing decisions are ‘predicted’ by y number of case factors; most identify which factors are correlated with sentencing outcome. Rarely, however, is any discussion devoted to how ‘factors’ are identified and how

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researchers divide up the world into supposedly discrete, autonomous individual elements. For example, in an ambitious study using archival data from Pennsylvania to compare male and female judges’ sentencing decisions, Steffensmeier and Hebert (1999) find that ‘women sentence differently’ (sic). In particular their analysis finds that ‘the overall effect of harsher sentencing of black defendants is enhanced among female judges when they sentence repeat offenders, whereas among male judges the race effect is diminished or unchanged’ (1180). According to Steffensmeier and Hebert, this finding is explained by different ways in which male and female judges approach the job of doing justice. Specifically, the sentencing decisions of judges are contextualised more by defendant characteristics such as race, sex, and age and by defendant’s prior record …. [W]omen policy-makers are somewhat more concerned with the substance of policy than with abstract precepts and that their greater contextualisation in policymaking reflects women’s greater concern for preserving the relational webs of life ….

Although Steffensmeier and Hebert employ the thesis that women judges work in a more contextualised and less abstract way than men, their own approach to investigation seems curiously at odds with this awareness. Indeed, their investigation seems highly attuned to abstract precepts which ignore the living relationships between case factors. To put it in their terms, Steffensmeier and Hebert operate on the basis of the male bias which they themselves are concerned. In reaching the conclusions from the Pennsylvania official data they employ additive regression models ‘to assess whether on average female judges sentence more harshly or more leniently than male judges’ (1174). So in typically analytical fashion they identify ‘variables’ abstracted from each other. It is stated that: the independent variables include a combination of case and judge characteristics that have been previously shown to affect the sentencing of criminal defendants. The coding and definition of these variables … are straightforward. (sic, 1171)

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Yet, it is this faith in the straightforwardness of their enquiry which is problematic. First, variables cannot be shown to ‘affect’ in any causal way decision outcomes, but can only be shown to be statistically associated (correlated). Second, the identification and definition of such variables is far from straightforward. The crucial point here can perhaps be illustrated by their concluding remarks calling for investigation into ‘the “gestalt” of women’s decisions and whether that gestalt differs among women as compared to men …’ (1186). Yet, as analytical work, Steffensmeier and Hebert’s research is itself remarkably un-gestalt. If judgement-making can be investigated by starting from the gestalt observation that ‘the whole is greater than the sum of the parts’, why assume that the whole is simply the sum of its discrete parts? Analytical approaches to research are seen to be the antithesis of a gestalt approach. Analysis can only be about the collection of individual parts and, more importantly, what is defined as an individual part (factor) is highly contestable.

4.2

Problematising ‘Factors’

Although I have pointed to its limitations, it is undeniable that an analytical approach based on co-relationships of ‘factors’ is one way of accounting for sentencing. However, it leaves key questions unanswered: i. How is it decided what does and does not qualify as a ‘factor’? In principle, it seems that a ‘factor’ may be nothing more than a supposedly discrete ‘piece’ of information thought to stimulate a sentencing response. In practice, often what counts as a ‘factor’ may depend on the availability of data and how it has been recorded. Most research into sentencing relies on large-scale official data with ready-made categories based on administrative priorities, recorded in-line with official agencies’ own purpose/s. That said, it is possible in principle for researchers to collect their own data according to their own criteria, but that raises its own questions. ii. How are ‘factors’ separable and distinguishable from each other? Much of the time, the existence of discrete, individual ‘factors’ is taken for granted. Judges tend to complain that such an approach takes ‘factors’

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‘out of context’. It is easy to dismiss this complaint about ignoring ‘context’ as special pleading by a judiciary threatened by the prospect of the de-mystification of sentencing. Yet, perhaps the complaint has some validity, especially when researchers rely on the convenience of ready-made official large data-sets produced for non-sentencing purposes. iii. Does each individual factor act in one direction (i.e. mitigating or aggravating)? A long-held goal of analytical sentencing research and policy thinking is to determine a list of ‘aggravating factors’ counter-balanced by a separate list of ‘mitigating factors’. Guideline reforms of different varieties all draw up such dualistic lists. For example, an offence (e.g. assault) which is thought to be preplanned is typically listed as aggravating, unlike an offence which is regarded as spontaneous which is mitigating. However, where an offence may be thought to be the result of a lack of self-control, or the result of unpredictable impulses, the offence may also be seen to be aggravated: the offence may be seen as more serious and the person more risky precisely because of the apparent lack of self-control. A second example is even more common: offences reported as having been committed under the influence of alcohol or drugs (Dingwall and Koffman 2008; Lightowlers 2019; Padfield 2011), which represent the majority of convicted persons (Prison Reform Trust 2017). On the one hand, this may be listed as mitigating in that the person’s normal inhibitions were limited. Intoxication can suggest that the offender did not really know what they were doing or acted out of character. Yet on the other hand, intoxication can also be regarded as an aggravating factor suggesting a recklessness, lack of respect for others, or selfish disregard for the consequences. A third also very widespread example concerns the employment status of a person to be sentenced. The same information may both aggravate the seriousness of one case and mitigate the seriousness of another or, indeed, be argued to be either in the same case. Being able to retain a job might mitigate against a custodial sentence, or being jobless might evoke greater sympathy. The same information can be ‘aggravating’ and ‘mitigating’ in the same case.

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These examples underline ‘[h]ow precariously the mutable characterisation of a [case] can operate’ (Hawkins 1983: 120)—the fine distinctions between ‘candour’ and callousness’; ‘carefreeness’ and ‘recklessness’. ‘Factors’ are protean. They may seem to aggravate and mitigate at different times, even in the same case (Shapland 1981; Halliday et al. 2009; Tata 2007). Attempts to identify lists of aggravating and mitigating factors as fixed and universal predictors existing autonomously in themselves are, therefore, likely to fail. This realitionality illustrates the essentially interpretative and casecontextual nature of ‘aggravating and ‘mitigating factors’. The meaning of case seriousness is fluid and relative to (and only meaningful within) the context of its typical whole offence story. If that is so, the explanatory value of the notion of ‘aggravating and mitigating factors’ is surely diminished. Yet the empirical conclusion that case ‘factors’ are necessarily casecontingent and fluid can easily be mistaken as the normative advocacy of some principle-free individualised sentencing. For example, Lovegrove castigates the refusal by the Supreme Court of Victoria to direct first instance sentencers to recognise certain ‘factors’ as: normally aggravating or mitigating. But nothing is definite: it all depends on the facts of the individual case. Accordingly these judgements do little more than confirm the approach of individualisation. (Lovegrove 1989: 289)

Indeed, these and other utterances of the appellate courts of Victoria have become something of a bête-noire to legal-analytical scholars. Yet, as we shall see, simply because the Supreme Court insists that it cannot and will not tell first instance sentencers to regard certain ‘factors’ as universally aggravating or mitigating because it depends on the context of the case, does not equal ‘individualised sentencing’ (i.e. inter-case incomparability). Judges stress their treatment of cases as a ‘whole’ and the ‘feel’ for individual cases. There has been judicial resistance to the attempt to reduce sentencing to a mathematical model with the addition and subtraction of ‘independent’ ‘factors’. This resistance should not be dismissed as obfuscation.

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Conclusions and Implications

Both the traditions dominating sentencing thought are rooted in a paradigm of autonomous individualism centred on the judge as a singular, self-contained property-owning, bounded individual who naturally possesses freedom unless ‘his’ freedom is interfered with externally. This paradigm is further reflected in and projected onto a wider cosmos of sentencing thought in which the idea of autonomous individual, selfcontained entities (e.g. factors) predominates. Depicted as competing and colliding with each other, each nonetheless remains essentially unchanged, self-possessed, retaining its own intrinsic characteristics. Sentencing research has been very largely dominated by assumptions shared by two normatively opposed traditions. Central to both the legalrational tradition and the judicial-defensive tradition has been a reliance on a conception of sentencing, which accords little importance to the way in which people make sense of their world. Action tends to be conceived as the product of autonomous individual factors, forces, rules which impact upon and through individual sentencing actors. Although there are more sophisticated versions (e.g. Pina-Sánchez 2015; Steffensmeier and Hebert 1999; Spohn 2009), this is more or less a model in which self-evident and autonomous stimuli cause predictable human responses. However, central to social action is the creation of meaning. In other words, in social action there is no straightforward and unmediated stimulus–response relationship. What is missing is a nuanced understanding of the meaning which mediates and produces ‘stimuli’. Sentencing scholars who have sought to emphasise human interpretation of stimuli have nonetheless done so through the lens of autonomous individualism. Though individual pieces of information may interact with each other, they are seen as remaining fundamentally self-possessed, retaining their own inherent properties. What is needed, therefore, is a more thoroughly social conception of sentencing decision-making: one which is based in a recognition of decision-making as processual, interpretive and performative of culturally expected roles.

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Chapter 3 sketches out an alternative conception of decision-making seeing sentencing as a collaborative process rather than a momentary decision resulting from given, static rules, facts and factors. Rather than centred on the judge owning discretion, it will suggest that sentencing work is interpreted processually by and in the performance of professional relationships, which are then discussed in Chapters 4 and 5.

References Anninson, J., & May, T. (1998). The De-professionalisation of Probation Officers. In P. Abbott & L. Merrabau (Eds.), The Sociology of the Caring Professions (pp. 157–177). London and New York: Taylor and Francis. Ashworth, A. (2015). Sentencing and Criminal Justice. Cambridge: Cambridge University Press. Bagaric, M., & Edney, R. (2013). Sentencing in Australia. Melbourne: Cambridge University Press. Bagaric, M., & Edney, R. (2017). Sentencing in Australia. Sydney: Thomson Reuters. Bagaric, M., & Edney, R. (2018). Sentencing in Australia. Toronto: Thomson Reuters. Bagaric, M., & Wolf, G. (2018). Sentencing by Computer. George Mason Law Review, 25 (3), 653–709. Blackstone, W. (1766). Commentaries on the Laws of England (Vol. 2). London: Clarendon Press. Boyle, C., & Allen, M. (1990). Sentencing in Northern Ireland. Belfast: SLS Publications. Brown, G. (2017). Sentencing as Practical Wisdom. Oxford: Hart Publishing. Chanenson, S. (2005). The Next Era of Sentencing Reform. Emory Law Journal, 54 (1), 377–450. Chiao, V. (2018). Predicting Proportionality: The Case for Algorithmic Sentencing. Criminal Justice Ethics, 37 (3), 238–261. Darbyshire, P. (2011). Sitting in Judgement. Oxford: Hart Publishing. Davies, M. (1999). Queer Property, Queer Persons: Self-Ownership and Beyond. Social & Legal Studies, 8(3), 327–352. Davies, M. (2007). Property: Meanings, Theories, Histories. London: Cavendish.

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Dingwall, G., & Koffman, L. (2008). Determining the Impact of Intoxication in a Desert-Based Sentencing Framework. Criminology & Criminal Justice, 8(3), 335–348. Douglas, M. (1966/2002). Purity and Danger. London: Routledge. Douglas, M. (1982/2011). In the Active Voice. London: Routledge. Douglas, M. (1986). How Institutions Think. London: Routledge. Durkheim, E. (1912/2001). Elementary Forms of Religious Life. Oxford: Oxford University Press. Dworkin, R. (1977/2013). Taking Rights Seriously. London and New York: Bloomsbury. Feeley, M., & Simon, J. (1992). The New Penology: Notes on the Emerging Strategy of Corrections and Implications. Criminology, 30 (4), 449–474. Feeley, M., & Simon, J. (1994). Actuarial Justice: The Emerging New Criminal Law. In D. Nelken (Ed.), The Futures of Criminology (pp. 173–201). London: Sage. Findlay, M., Odgers, S., & Yeo, S. (1994). Australian Criminal Justice. Oxford: Oxford University Press. Foucault, M. (1977) Discipline and Punish: The Birth of the Prison. New York: Vintage Books. Foucault, M. (1980). Knowledge/Power. New York: Vintage Books. Frankel, M. (1972). Criminal Sentences: Law Without Order. New York: Hill & Wang. Franko Aas, K. (2004). From Narrative to Database: Technological Change and Penal Culture. Punishment & Society, 6 (4), 379–393. Franko Aas, K. (2005). Sentencing in the Age of Information: From Faust to Macintosh. London: Glasshouse Press. Frase, R. (2007). The Apprendi-Blakely Cases: Sentencing Reform CounterRevolution? Criminology & Public Policy, 6 (3), 403–432. Frase, R. (2012). Just Sentencing. Oxford: Oxford University Press. Freiberg, A. (2014). Fox & Freiberg’s Sentencing: State and Federal Law in Victoria. Melbourne: Lawbook. Garland, D. (2001). The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press. Green, E. (1962). Judicial Attitudes in Sentencing. Cambridge: Cambridge University Press. Halliday, S., Burns, N., Hutton, N., McNeill, F., & Tata, C. (2009). Street-Level Bureaucracy, Interprofessional Relations, and Coping Mechanisms: A Study of Criminal Justice Social Workers in the Sentencing Process. Law & Policy, 31(4), 405–428.

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Hartley, M., & Spohn, C. (2007). Concerning Conceptualization and Operationalization. Southwest Journal of Criminal Justice, 4 (1), 58–78. Hawkins, K. (1983). Assessing Evil: Decision Behaviour and Parole Board Justice. The British Journal of Criminology, 23(2), 101–127. Henham, R. (1997). Criminal Justice and Sentencing Policy. Aldershot: Dartmouth. Henham, R. (2014). Sentencing. New York: Routledge. Hogarth, J. (1971). Sentencing as a Human Process. Toronto: Toronto University Press. Hood, R. (1962). Sentencing in Magistrates’ Courts: A Study in Variation of Policy. London: Stevens & Sons. Hood, R. (1992). Race and Sentencing. Oxford: Clarendon Press. Hutton, N. (1995). Sentencing, Rationality and Computer Technology. Journal of Law & Society, 22(4), 549–570. Lammy Review. (2017). An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System. gov.uk. Lightowlers, C. (2019). Drunk and Doubly Deviant? The Role of Gender and Intoxication in Sentencing Assault Offences. British Journal of Criminology, 59 (3), 693–717. Lovegrove, A. (1989). Judicial Decision-Making, Sentencing Policy and Numerical Guidance. New York: Springer. Lovegrove, A. (1999). Statistical Information Systems as a Means to Consistency and Rationality in Sentencing. International Journal of Law and Information Technology, 7, 31–72. Lovegrove, A. (2008). A Decision Framework for Judicial Sentencing: Judgment, Analysis and the Intuitive Synthesis. Criminal Law Journal, 32, 269–286. Mackenzie, G. (2005). How Judges Sentence. Annandale: Federation Press. Marcus, M. (2005). Blakely, Booker and the Future of Sentencing. Federal Sentencing Reporter, 17 (4), 243–248. Mawby, R., & Worrall, A. (2013). Doing Probation Work: Identity in a Criminal Justice Occupation. London: Routledge. Mears, D. (1998). The Sociology of Sentencing. Law & Society Review, 32(3), 667–724. Miller, M. (1989). Guidelines Are Not Enough: The Need for Written Sentencing Opinions. Behavioural Sciences & the Law, 7 (1), 3–24. Naffine, N. (1994). Possession: Erotic Love in the Law of Rape. Modern Law Review, 57 (1), 10–37.

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Naffine, N. (1998). The Legal Structure of Self-Ownership: Or the Self-Possessed Man and the Woman Possessed. Journal of Law & Society, 25 (2), 193–212. Nedelsky, J. (2011). Law’s Relations. Oxford: Oxford University Press. Newman, D. (2016). Are Lawyers Alienated Workers? European Journal of Current Legal Issues, 22(3). Nicholson, G. (1992). Sentencing: Law and Practice in Scotland (2nd ed.). Edinburgh: W. Green/Sweet & Maxwell. O’Malley, T. (2013). Living Without Guidelines. In A. Ashworth & J. Roberts (Eds.), Sentencing Guidelines (pp. 218–236). Oxford: Oxford University Press. Padfield, N. (2011). Intoxciation as a Sentencing Factor. In J. Roberts (Ed.), Mitigation and Aggravation at Sentencing (pp. 81–101). Oxford: Oxford University Press. Padfield, N. (2012). Sentencing & Early Release from Prison: Front & BackDoor Sentencing. In G. Bruinsma & D. Weisburd (Eds.), The Encyclopedia of Criminology and Criminal Justice (Vol. 1). New York: Springer. Parent, D. (1988). Structuring Criminal Sentences: The Evolution of Minnesota’s Sentencing Guidelines. Stoneham: Butterworth Legal Publishers. Pateman, C. (1988). The Sexual Contract. Stanford: Stanford University Press. Perry, R. (2007). Book Review—Sentencing in the Age of Information: From Faust to MacIntosh. Punishment & Society, 9 (4), 421–424. Prison Reform Trust. (2017). Bromley Briefings Prison Factfile. London: PRT. Pina-Sánchez J. (2015). Defining and Measuring Consistency in Sentencing. In J. V. Roberts (Ed.), Exploring Sentencing Practice in England and Wales (pp. 76– 92). London: Palgrave. Pottage, A. (2004). Introduction: The Fabrication of Persons and Things. In A. Pottage & M. Mundy (Eds.), Law, Anthropology and the Constitution of the Social: Making Persons and Things (pp. 1–39). Cambridge: Cambridge University Press. Rawls, J. (1971). A Theory of Justice. Cambridge: Harvard University Press. Roach Anleu, S. (1992). The Professionalisation of Social Work. Sociology, 26 (1), 23–43. Roberts, J., & Cole, D. (1999). Making Sense of Sentencing. Toronto: University of Toronto Press. Roberts, J., & Harris, L. (2017). Reconceptualising the Custody Threshold in England and Wales. Criminal Law Forum, 28(3), 477–499. Schorr, D. (2009). How Blackstone Became a Blackstonian. Theoretical Inquiries in Law, 10, 103–126. Shapland, J. (1981). Between Conviction and Sentence: The Process of Mitigation. London: Routledge & Kegan Paul.

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Spears, D. (2005). Taming Discretion (PhD thesis). University of Sydney. Spohn, C. (2009). How Do Judges Decide? The Search for Fairness and Justice. Thousand Oaks: Sage. Steffensmeier, D., & Hebert, C. (1999). Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants? Social Forces, 77 (3), 1163–1196. Stith, K., & Cabranes, J. (1998). Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: Chicago University Press. Tata, C. (2007). Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process. Social & Legal Studies, 16 (3), 425–447. Tay, A. (1978). Law, the Citizen and the State. In E. Kamenka & R. Brown (Eds.), Law and Society: The Crisis in Legal Ideals London: Edward Arnold. Thomas, D. (1963). Sentencing—The Case for Reasoned Decisions. Criminal Law Review, 10, 245–253. Tombs, J. (2008). Telling Sentencing Stories. In P. Carlen (Ed.), Imaginary Penalities (pp. 84–112). Cullompton: Willan Publishing. Tonry, M. (2016). Sentencing Fragments. Oxford: Oxford University Press. Tonry, M., & Frase, R. (Eds.). (2001). Sentencing and Sanctions in Western Countries. New York: Oxford University Press. Von Hirsch, A., Knapp, K. A., & Tonry, M. (1987). The Sentencing Commission and Its Guidelines. Boston: Northeastern University Press. Walker, N., & Padfield, N. (1996). Sentencing: Theory, Law and Practice. London: Butterworths. Weber, M. (1922/2013). Economy & Society. Berkeley: University of California Press. Welsh, L., & Howard, M. (2018). Standardization and the Production of Justice in Summary Criminal Courts: A Post-human Analysis. Social & Legal Studies (First published online, 18 August).

3 The Social Production of Sentencing

Abstract Developed in the shadow of legal formalism, depictions of sentencing discretion are dominated by images of autonomous individualism, in which the individual judge ‘owns’ the property of discretion, unless restricted by official legal rules. I argue instead for an approach which understands sentencing case ‘facts’ as necessarily and inescapably typified by the constructing practices of the criminal process and for a holistic approach based on ‘typified whole case stories’. In this way, decisionmaking can be conceived as both holistic and explicable. Keywords Sentencing research · Sentencing reform · Case facts · Rules and Discretion · Typified whole case stories Map of Chapter Three Beginning by questioning whether official rules and discretion are, in their practical operation, binary opposites, Sect. 1 proposes that in everyday practices the two are mutually constitutive, almost indistinguishable. Rules and facts operate in a ceaseless shifting dialogue which thwarts determinate conceptions of decision-making. Applying the empirical research findings that the criminal justice process constructs and normalises cases, © The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_3

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Sect. 2 examines the implications for research of this social reality of case-making and case-transformation, including how research should represent multiple offence cases, and offence and offender characteristics. A focus on how cases are made as a social process invites us to think in Sect. 3 about how we should conceive of reason-giving and accountability. By distinguishing formal ‘line accountability’ from ‘socially-purposive account-giving’ it is possible to appreciate why reason-giving easily disappoints academic expectations. Concluding, Sect. 4 asks how sentencing professionals perform their roles.

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How the Discretion-Versus-Rules Binary Dissolves

In Chapter 2 we saw how sentencing scholarship and policy thinking have been dominated by two competing approaches: the legal-rational and the judicial-defensive approach. Despite their impassioned mutual opposition about the question of reform (centred specifically on the extent of discretion) they share the same epistemic and ontological assumptions. In particular, both approaches are rooted in a paradigm of autonomous individualism centred on the judge as a singular, self-contained individual who naturally possesses freedom unless his freedom is interfered with externally. This paradigm of autonomous judicial individualism is further reflected in and sustained by conceptions of the wider cosmos of sentencing which is thought to be composed of competing, autonomous, self-contained entities (e.g. factors). Discretion and rules have tended to be counter-posed as opposites. Franko Aas (2005: 15) for example states that discretion is “the opposite of rules”. While the legal rational tradition seeks to ‘structure’, ‘inform’ and render sentencing discretion ‘coherent’, the judicial-defensive approach (including new penology inspired writings) is preoccupied with the dangers of rules and rationality. Although harbouring contradictory normative concerns, both traditions share the same assumptions: rules and discretion are direct opposites; sentencing discretion is seen as possessed by individual judges; the absence of official rules amounts to unfettered discretion (personal freedom) for each individual judge.

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Although the contradistinction between discretion and rules makes sense at an abstract normative level, when examining the everyday sentencing process empirically the distinction dissolves: each shares the other’s abstract qualities. Indeed, once we try to apply rules to particular situations it becomes quickly apparent that what in the abstract we may call ‘discretion’ is woven into the very fabric of ‘rules’. This is for four reasons. First, rules are inescapably indeterminate in their implementation, with every rule containing at least one discretionary term (e.g. ‘reasonable’; ‘dangerous’; ‘intentional’; ‘best interests of the child’; ‘the interests of justice’; ‘the public good’ etc.). It is in the attempt to operationalise these rules that their indeterminacy becomes apparent. Second, official rules are necessarily limited in scope: they ‘run out’. They cannot address every particular case situation and so rules are full of caveats, exceptions, and qualifications (e.g. ‘except where the court considers it to be in the public interest’; ‘unless contrary to the interests of justice’ etc.). Third, rules are not only ambiguous and fact-dependent, but in their application, they may be conflicting. A simple example relates to the conflicting principles of transparency and privacy. Fourth, how rules are applied to facts is not pre-determined, and, indeed, nor is the construction of ‘facts’. A telling feature of how, when studying sentencing practices, the sharp abstract distinction between rules and discretion collapses is that the ambit and limits of discretion may, in different situations, be expanded or contracted. Expansive definitions may be expected. For example, the Lord Chief Justice of England and Wales chose on appeal to torpedo the government’s intended meaning of ‘proportionality’, which was central to the 1991 Criminal Justice Act. Thus, what the legislature intended to be a restraining provision based on proportionality was converted into a much more expansive subsection, allowing deterrent sentences when the White Paper had strongly argued against them. (Ashworth 2017: 475)

However, while expansive judicial interpretations might be expected, minimising interpretations are surprisingly common too: discretionary decision-makers often seeming to deny the very discretion available to

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them because they feel they have no choice other than, for example, to impose a prison sentence, even though the letter of the law seems to afford discretion to do so (Tombs and Jagger 2005). A second example of selfdenial of discretion comes from Robert Cover’s (1975) historical study of the Fugitive Slave Act: Time and again the judiciary paraded its helplessness before the law; lamented its harsh results yet nonetheless declined to use their legal discretion to make ‘ameliorist’ solutions possible. (Cover 1975: 5–6)

A third example can be seen in the way South African judges denied themselves the very discretion which they claimed to cherish in relation to mandatory sentencing (van Zyl Smit 2002). Fourthly, officials (e.g. police officers, prison officers) commonly focus on the enforcement of their authority and order rather than any strict enforcement of ‘the rules’ (e.g. Liebling and Price 2003). This can mean that much of the time the official rules are ignored or circumvented so that non-application becomes the norm, resulting in a surprise when the official rule is enforced. In that way, the exception to the normal reality of enforcing the official rule is felt to people on the receiving end to be ‘discretionary’; and non-enforcement of the official rule may be experienced as ‘the rule’! Thus, in selectively denying or expanding the scope of ‘rules’ and ‘discretion’, legal discretion is itself being exercised, though it may not always be experienced a matter of free choice to those applying official ‘rules’ and ‘discretion’. For them, their behaviours may seem necessary, obvious, self-evident and inescapable. Yet, discretionary decision-makers are also applying ‘the rules’ to specific instances. In this way, in their actual implementation, what are called in the abstract ‘rules’ and ‘discretion’ are better understood as inherently fluid, unstable, mutually indistinguishable and synergistic, rather than as distinct entities locked in mutual opposition. Consequently, when discussing the practical operation of decisionmaking, it becomes implausible to talk of discretion and rules as distinct or opposite forces, or to talk of a ‘balance’ between rules and discretion, or to suggest that more rules means less discretion or vice versa. Rather than regarding legality as the starting point for understanding discretionary legal behaviour empirically, a focus on everyday practices invites the possibility

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that legal rules and discretion are exercised simultaneously. They may, in fact, only be mutually distinguishable in the abstract. The indeterminacy of legal ‘rules’ and ‘facts’ as well as the shifting and dynamic application of one to the other (Bourdieu 1987: 823–828) means that the scope of what is called ‘discretion’ and ‘rules’ is, in daily practice, ineluctably contingent. In the abstract, official legal rules and discretion are antithetical, yet in operational reality they share and inhabit each other. Legal rules are malleable, indeterminate, unstable and replete with ‘holes’, contingent on how they are configured with the particular case facts. In other words, in operational reality, legal rules share the characteristics of assigned to ‘discretion’. Discretion, meanwhile, operates in predictable, structured, patterned and systematised ways (e.g. Baumgartner 1992; Lacey 1992). So in daily reality, ‘discretion’ operates shares the characteristics of ‘rules’. Let us put it another way. To invert the Dworkinian doughnut analogy in which the dough represents law and the hole discretion, we might say that in terms of practices: the dough is always full of holes, while what appears at first glance to be a ‘hole’ abounds with the ‘structure’ of organisational norms, and cultural rules of conduct.1 In routine everyday practices rules and discretion are functionally indistinguishable. What, in the abstract, we may meaningfully label as the opposite and distinct forces of ‘rules’ and ‘discretion’, are rendered by their practical operation protean, synergistic and mutually indistinct.

2

The Indivisibility of ‘Rules’ and ‘Facts’

To understand how sentencing decision-making works we need to study the application of rules to facts. Not only is the devil in the detail of the ‘facts’ but also the very idea of rules-facts relationship is core to the rules-discretion relationship.

1The discretion-rules dichotomy is also reflected in social theory between the supposedly opposing forces of ‘structure’ and ‘action’—a distinction which makes sense in the abstract but not when subject to close empirical observation (Sewell 1992). The material world of objects and ‘mental structures’ is synergistic (Bourdieu 1977).

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The Devil Is in ‘the Facts’

Legal or official rules cannot be completely determinative in themselves, or ‘self-executing’ (Pratt and Sossin 2009: 302), as if apart from human interpretation and application. We have already seen that legal rules have to be applied to a huge variety of situations which cannot be predicted in advance, and that indeterminacy follows. Further, the ubiquitous sentencing dicta that ‘each case turns on its own facts’ mean that rules are fact-dependent. So let us think about case facts and their determinative power, their seemingly given, or posited, character.

Case ‘Facts’ and the Making of Cases The term ‘facts’ implies settled, objective information about which there is no rational dispute. This though tells only one part of the story. While ‘facts’ are described as such by many sentencing researchers, practitioners and others (e.g. journalists), empirical research shows that case facts are unstable, dynamic, and the result of case-making. The legal process recreates and transforms facts (e.g. Emerson 1983; McBarnet 1981; Johansen 2018; Sudnow 1965; Tata 1997; van Oorschot et al. 2017; van Oorschot 2020). This does not mean that it ‘invents’ wholly new information, but rather that it edits and transforms the case and its facts according to its own taken for granted categories: its ways of knowing and ways of doing. The implications of this are simultaneously prosaic and profound. They are prosaic because human beings and human associations simplify the mass of information to make sense of what they do according to familiar ways of thinking. Cognitive psychology shows clearly how people are limited processors of information. It would be impossible to absorb and understand all the stimuli we receive. We have to make sense of this somehow by linking it to known categories and sequences (e.g. McVee et al. 2005). Further, such information processing can never take place in isolation from the social world. Our categories of knowing are socially learned and socially useful. We simplify and normalise information to render it comprehensible. This is not necessarily a bad thing: without that

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capacity we could make no sense of the world, or indeed of ourselves. So far so prosaic. Yet the implications of this are also profound for understanding decision-making. It means that the unique is inevitably always rendered relatively familiar. Case facts are, in other words, the result of a process of normalisation and standardisation. Not only that, but normalisation is continual throughout the criminal process. In other words, the criminal process is not simply the passive recipients of case ‘facts’ but in reality the active translator and re-creator of them. The official moment of sentencing is not and cannot be the passive recipient of objective facts, but of ‘constructed conventions’ (Barnes 1977): a pragmatic, purposive and negotiated representation of a reality which is shared by court working cultures (e.g. Eisenstein and Jacob 1991; Flemming et al. 1992; Jacobson et al. 2015; Rock 1993; Ulmer and Johnson 2017). Criminal events and human experience may be almost infinitely variable and unique, but the construction of criminal cases is, necessarily, limiting, finite, normalising and standardising.

2.2

The Devil Is in the Rule-Facts Dialogue

Yet, this opens up the core paradox for the operation of the rule of law. It means that while rules have to be indeterminate to depend on facts, the facts themselves are produced by the process. Indeed, in sentencing, the facts are transformed purposively. Facts are not simply worked on without regard to the consequences. They are selected, edited and recreated according to sentencing needs, expectations and fit with the rules. For example, police and prosecutors do not simply report any and all information, nor would it necessarily be sensible to do so. They must select information which they regard as relevant to the alleged commission of a criminal offence (e.g. Moody and Tombs 1982; Jacoby and Ratledge 2016; Reiner 2010). They select the rule (often one among several possibilities) to which the (constructed) facts seem best suited. Facts have to be relevant to the rules, and the rules have to be relevant to the facts. This is nothing other than a synergistic and purposive process (nor could it realistically be otherwise). So the rules are ambiguous, indeterminate, almost

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always caveated and contingent on the case ‘facts’. The sentencing process is not the passive recipient of self-evident facts, but its active creator and standardiser. Let us then examine the specific meaning of ‘process’ in decision-making.

2.3

What Does ‘Process’ Mean in Sentencing Decision-Making?

Sometimes the meaning of the term ‘sentencing process’ seems relatively indistinguishable from that of ‘sentencing procedure’. Guideline bodies talk about ‘process’ when they list the formal steps through which sentencers should go before selecting sentence. In this sense, ‘process’ may amount to little more than a prescribed procedure. However, the official sentence is the culmination of building and agenda-setting rather than a momentary instance. Here, ‘process’ means something much more than a sequence of formal procedural steps. Crucially, the course of case-transformation is one which takes place throughout the criminal process. Anglo-American criminal procedure scholarship is at pains to focus on the requirements of a discrete twostage procedure. First, there should be the trial about the alleged offence and only then, if proved, can one move to the separate question of punishment. Perhaps the normative preoccupation with the act then the actor which we see in the offence-offender dichotomy tends to blind us to the reality of what typically happens in Anglo-American courts. Given that nearly all cases result in a plea of guilty, which sentencing professionals expect and welcome (e.g. Baldwin and McConville 1977; McBarnet 1981; Roach Anleu and Mack 2017; Tata 2019), the need for a ‘trial’ is skipped and cases move straight to sentencing. What this means is that sentencing is in effect the main focus of the ‘pre-trial’ process of police work, prosecution, defence work. The criminal process becomes a process orientated to the purpose of building the sentencing agenda. The ‘career’ of the case is, in large part, transformed, therefore, for the purpose of developing a sentencing agenda. In this way, we should conceive of such agenda-setting work as integral to the process of sentencing.

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Who Does Sentencing Work? We can speak of ‘sentencing work’, not merely as a judicial activity, but also done by non-judicial actors. Thus, the term ‘process’ denotes something much more than procedure: the development, evolution, recreation and reproduction of sentencing agendas. While the sentencing judge appears to have formal power, she is limited to the information provided to her.2 The sentencing agenda is to a considerable degree pre-determined and shaped by non-judicial actors. If it is the case that since sentencing (rather than the determination of guilt), is the key decision of the court which all actors build towards, then it means that we should see the reality of sentencing work as a multi-professional, multi-disciplinary collaborative process (see further Chapters 4 and 5). Leaving to one side for the time being normative worries about what ought to be, how does this understanding of sentencing as collaborative case-construction, transformation and normalisation enable us to rethink some of the thorny problems which continue to dog sentencing research, reform and policy-making? Two of the most thorny problems are: multi-conviction cases, and secondly, the relationship between offence and offender characteristics. Let us now re-think each.

2.4

Multi-conviction Cases

The collection of sentencing data raises a curious lacuna. It is one which resonates with and is reflective of the paradigm of autonomous individualism: each conviction tends to be treated individually as a thing in itself. Data collection instruments used by official statistics (on which nearly all analysis of sentencing ‘factors’ is based) proceed invariably on the basis that there is no more than one single conviction in each case, or at least one selfevidently over-riding conviction. This is true also of reform instruments such as sentencing guidelines, whether they be numerical or narrative in form. Yet this is divorced from reality. In many jurisdictions, cases are 2This is particularly the case in the nominally adversarial systems where the judge cannot collect evidence for herself in the way that for example, the juge d’instruction in France, is capable of doing. Yet even there this practice appears to be diminishing (Hodgson 2006; Hodgson and Soubise 2016).

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sentenced on the basis of more than one legal conviction (Roberts et al. 2018). In some of those cases, the main, or principal conviction, may be self-evident and other convictions are simply incidental or additional to that. For instance, the prosecution may include charges such as ‘resisting arrest’ or assaulting a police officer to no great injury. However, in many other cases, it is less clear which is the principal conviction. This makes for major problems with the collection of official data and can easily lead to spurious assessments of case seriousness, resulting in official data reports about sentencing disparities (or indeed consistency) on the basis of appearing to compare cases which are in fact quite unalike each other.3 For example, take cases involving separate robberies of a pharmacy and the selling on of the drugs: which is the principal conviction? Or, which should be the principal conviction when there are multiple sexual offences against males and females? How should data collection instruments, and indeed reform mechanisms, seek to capture the meaning of such multi-conviction cases?

The Need for Typified Whole Offence Approach Instead of trying to select one of the convictions as ‘the principal offence’ and then, at best, add-in information about other convictions as if ancillary features, we can instead think of multiple offending as part of a whole narrative or ‘course of conduct’. In this way, offending information can be represented as a more holistic narrative which sentencing professionals intuitively understand. These narratives arise from the typifications and normalisations of the legal process. Of course, it might be objected that they do not reflect the true reality of offending (e.g. Lovegrove 1999). However, law and the 3 ‘Past

research has focused primarily on individual, offender-level characteristics as independent variables. Only rarely are data about victims, court practitioners, or organizational, cultural, political or social contexts considered at all’ (Mears 1998: 672). Mears attributes this lack of attention to the relative convenience and ease of relying on official data. ‘The question though is whether ease of access should dictate [research]’ (672). However, while ease of access may explain in part reliance on official data, Mears perhaps overlooks a more fundamental explanation. Given the juridical character of most sentencing research, official sources of information are necessarily preferred: they provide the illusion (or at least cosy expectation) of comprehensiveness, completeness, accuracy, and definitiveness.

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legal process is not, and cannot be, a simple window on the world. It is, as we have seen, inescapably a process of typification and transformation. Let us remind ourselves that the official names of crimes are themselves constructions. The attempt to capture behaviour as it truly exists in the world is only one of the purposes of criminal law—there are other purposes to naming things as crimes which have as much to do with moral censure, gradation, distinction, naming, etc. (e.g. Ashworth 1989; Tadros 2012). If, as researchers and policy-makers, we want to grasp the daily categories which sentencing professionals use, and indeed if we want to assess, measure and possibly reform them, we need to apprehend these typifications. Yet a holistic approach to categorising multi-conviction cases is only one part. It leaves the question of the meaningful interaction between the offence and the offender.

2.5

Offender Characteristics

Offence Versus Offender? Analytical models of the decision process represent sentencing by trying to abstract the constituent parts of sentencing into discrete factors: each of which, or in combination, explains an element of the sentencing decision. By combining them in more or less complex ways, it is believed that we can arrive at the explanation of the decision (e.g. Lovegrove 1989, 2008; Pina-Sánchez 2015). Yet, the relationship between factors remains underexplored. Sentencing scholarship tends to take for granted the idea that cases are composed of discrete offence factors as opposed to offender factors. This may be a consequence of Anglo-American adversarial ideas about the trial as a necessarily two-phase process: first considering the alleged offence and only then, if the offence (conduct) is proved, considering the personal qualities of the offender. The alleged action should be considered as divorced from the actor (character) (e.g. Field 2006). In the first phase, the examination of whether the offence has been committed

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should be uncontaminated by information about the individual. To fulfil the demands of a liberal conception of equality which, at this stage, must be blind to the status, and social identity of the individual, the personal and social characteristics of the individual are ignored. Only the alleged action is considered. The court must be blind to the character of the accused. Only unless and until the offence has been proved can the individual’s character be examined (e.g. Tata 2019). This adversarial two-phase model contrasts sharply with inquisitorial continental European tradition in which the unitary trial encompasses both an inquiry of the alleged offence and the individual (e.g. Field 2006; Hodgson 2006). In the same way, during the sentencing phase, sentencing scholars have argued for a two-stage approach in which the offence is weighed first and only then the offender is weighed. Yet how realistic is it to divorce an enquiry into the action (offence) from the alleged actor (offender)? There seem to be at least two limitations. First, the seriousness of offence culpability cannot be properly evaluated without reference to the offender. The capacity of ‘the offender’ mediates and confers the meaning of ‘the offence’. We have already seen in Chapter 2, for example, how the mental state (e.g. under the influence of alcohol or drugs) can be central. Secondly, the offence-versus-offender binary does not reflect the reality of the process in (nominally) adversarial systems, in which most cases do not proceed to ‘trial’. Since across the nominally adversarial world more than nine out of ten cases result in a guilty plea (e.g. Ashworth and Roberts 2013; Gormley and Tata 2019), and indeed given that court practitioners expect that a guilty plea is likely, even inevitable, the action-actor division breaks down.4

4 If anything it is arguable that the offence-first then offender formulation is, in practice, reversed by

the prevalence of guilty pleas which obviate the need for an evidentially-contested trial. Through the offer of individualisation and humanity, the criminal process is in effect reversed so that the primary consideration is sentence first and the chance of mitigation, and then decision about pleading and to what to plead guilty (Tata 2019).

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How to Apprehend the Meaning of Previous Convictions? There is little certainty about which ‘factors’ in criminal history should be used to understand sentence, how they should be weighted, and how they operate in the sentencing process. Mirroring the normative commitment to a two-phase adversarial procedure, sentencing research and sentencing reforms have almost universally understood cases to be composed of the same two parts: offence and the offender. Yet, while research repeatedly shows that seriousness of criminal record is, alongside offence information, one of two major determinants of sentencing, just how offence information plays a role in the sentencing decision process has received surprisingly little attention (Roberts 1997: 306; Roberts et al. 2018). Again, and in common with offence information, the typical and assumed approach is to identify autonomous individual ‘factors’ and to observe their numerical/statistical association with sentence outcome. Indeed, all Guideline Grid systems, as seen in the US, require that judges calculate these two basic parts of the case as two stages. Likewise in narrative Guidelines of, for example, the England and Wales Sentencing Council these two elements form the basic scaffolding of its sequential or ‘staged’ approach (e.g. Roberts 2015). Yet the assessment of the story of the offending is itself informed by an understanding of the offender and her interaction and relationship, if any, with the victim. The circumstances of the offender and her relationship with the victim, the offender’s criminal, medical, social, psychological history all inevitably confer meaning on the offence story and on questions of harm and culpability. Similarly, the character of the offender is informed by the offence story. As Feeley remarks, “… for a charge to assume meaning it must be given substantive content by a description of the incident and information about the defendant’s character, habits and motivation” (Feeley 1979: 160–161). Sentencing professionals must necessarily make judgements about the moral responsibility of ‘the offender’ if they are to understand and interpret the seriousness of ‘the offence’ and vice versa. ‘Offence’ and ‘offender’ information do not work autonomously in the

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sentencing decision process: the interpretation of one is integral to the other.

The Synergy of ‘Offence’ and ‘Offender’ Information The representation of previous convictions is generally poorly captured, if at all, by analysis of official data, on which most research relies. To know how previous convictions are relevant one could collect data such as whether: they are analogous or not; resulted in a custodial sentence or not, etc. This is what we did in the Sentencing Information System research and development project (e.g. Tata et al. 2002; Tata and Hutton 2003). Yet, while this collected some of the most detailed information (see Chapter 6), it was still lacking. One could quickly end up with hundreds of permutations. What was missing was the relationship between these supposedly autonomous individual pieces of information. The challenge for research seeking to represent sentencing meaningfully lies in the need to integrate offender information together with offence information. Rather than using supposedly autonomous individual factors, research could seek to develop typified whole case stories.

Typified Whole Case Stories To address the difficult problem of empirically representing case similarity in multi-conviction cases we should try to take more seriously the ways in which sentencing professionals conceive of cases, not as an aggregation of individual convictions and constellation of individual factors, but as recognisable whole narratives. One possible research approach is to develop a series of ‘typified whole case stories’. These would seek to apprehend the intuitive and holistic way in which sentencing professionals make sense of cases as meaningful. Typified whole case stories aim to reflect the ways in which sentencing practitioners think about offence information as a whole integrated story. In preparing and constructing cases for sentencing and in considering sentence, practitioners do not generally think about each formal conviction in a multi-charge in isolation from each other.

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Rather, they tend to conceive of the case as a whole offending incident or narrative of criminal events.5 A simple example of the problem of recording offence information according to an aggregation of individual convictions relates to cases involving several convictions under the Road Traffic (Scotland) Act 1988. Commonly, a person may be convicted of three offences involving ‘taking a vehicle without the owner’s consent’ (s. 143), driving without insurance (s. 178), driving without due care and attention (s. 2). Rather than having to choose a notional principal offence and then aggregate it with the other individual convictions, sentencers may tend to conceive each as part of a typical whole offence narrative or story which might be reflected, for example, by the term ‘joyriding’. Similarly, rather than several convictions involving sexual offences against children, in the development of a Sentencing Information System (see Chapter 6), judges explained that they may focus on the narrative, or course of conduct, which may be normal in such cases of ‘child abuse’ or aggravated child abuse’ and so on (Tata et al. 2002). This focus on narrative labels meaningful from the perspective of sentencing may begin to lay some of the ground for the development of a fuller taxonomy of ‘typified whole case stories’. Such stories should be expected to be localised, be contestable and change over time. Nonetheless, this could be a promising way basis for subsequent statistical analysis than a simple reliance on official data categories. This emphasis on trying to appreciate the implicit, intuitive and holistic character of the sentencing decision process is unequivocally not the same thing as simply saying that sentencing is formless and lacking structure. To assume that intuitive and holistic characteristics must be synonymous with the claims of inter-case incomparability of the judicial-defensive tradition is a common and fundamental misconception made both by those enveloped in the legal-rational tradition (e.g. Bagaric and Woolf 2018; Dhami et al. 2015; Lovegrove 1989, 2008; Weigend 1983) and those in the judicial-defensive tradition (e.g. Brown 2017; Franko Aas 2004, 5 Interestingly,

some empirical research has sought to deploy sentencing vignettes rather than necessarily relying on criminal law classifications, for example in exploring public attitudes to sentencing (e.g. Roberts and Hough 2002) and the decision-making in whether or not to ‘breach’ the order of someone subject to community supervision (e.g. Beyens and Persson 2017; Boone and Maguire 2018).

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2005). My argument that sentencing (like other discretionary activities) is intuitive and holistic is not tantamount to inter-case incomparability claims. Lovegrove (1989, 2008) provides perhaps the most rigorous example of the analytical method of sentencing research. He sees grave dangers in any intuitive and holistic approach, particularly because such holistic categories do not accurately represent the actuality of offending behaviour: ‘There is no evidence that these sub-groups represent patterns of offending’ (Lovegrove 1999: 64). Lovegrove is correct to point out that such a holistic taxonomy glimpsed in the SIS does not reflect actual offending behaviour—but that is not the intention. In his critique of holistic approaches, he misses the crucial point that cases are ‘typified’: what comes before the courts is not and never can be a reflection of the range of the actuality of offending behaviour. Rather it is based on the typification of case stories into a limited number of standardised plots which sentencing professionals recognise and rework. For good or ill, cases are constructed, transformed and standardised by the process itself (e.g. Emerson 1983; Hawkins 1992; Johansen 2018; Sudnow 1965; Tata 2007b). Thus, the judicial sentencing decision is provided with a pre-structured agenda in which cases are necessarily typified and normalised by the criminal process: cases do not and cannot reflect the uniqueness of human action in an alleged criminal incident. While individual cases are repeatedly normalized and typified, assessments about the seriousness of individual cases are not made in isolation from each other but, rather, within the organizational context of ‘streams of cases’ (Emerson 1983). Such streams of cases, rather than each consecutive individual case, should be seen as the basic category for the empirical understanding of social-organisational reality of decision making. These streams of cases form the essential point of reference and comparison against which the meaning of the instant case can be apprehended. Every individual case has to be located within and reference the wider stream of cases. Without that reference, the case would be devoid of practical meaning. It is this process of normalisation and typification which structures sentencing. This is the central to the conceptual meaning of sentencing as ‘a process’. Yet does this mean that the way practitioners routinely talk of ‘each individual case is judged on its own merits’, or, of cases being composed

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of factors be dismissed as spurious mumbo-jumbo? I will suggest not. Even though it cannot be an accurate and nuanced depiction of empirical reality, in its appeal makes sense as a socially-purposive means of acknowledging a range of conflicting constituencies of interest.

3

How Reason-Giving and Accountability Are Socially Produced

So far, I have sought to expose the limitations of the conventional approach to understanding sentencing decision-making: its mechanistic view of human behaviour; its tendency to reach for static binary dichotomies; human action as acted upon a constellation of discrete individual forces unchanged by their collision and interaction. I have developed the argument that cases are typified and transformed by the legal process. That process of transformation is not simply a collection of decisions by individuals working in isolation without regard for each other’s work, nor without regard for each other. Instead, actors work in professional communities, which pattern behaviour, share (often encoded) messages about what they are doing, expecting, predicting about the case. To a greater or lesser extent, they share routine practices, implicit beliefs and assumptions, and a shared desire to ‘get through business’ or ‘dispose’ of the case (e.g. Roach Anleu and Mack 2017; Feeley 1979). These may include, for example: a tendency to believe that guilty pleas are more or less inevitable in most cases; that, therefore, early guilty pleas are desirable; trials should be avoided; efficiency means getting through as many cases with as little effort (and conflict) as possible; most cases are relatively trivial, etc. Together these shared beliefs generate shared belonging (e.g. Feeley 1979; Rock 1993): professionals within and in different agencies have to work together not only in the instant case, but in many other cases to come (Fleming et al. 1992; Tata 2007a). The instant individual case is not, nor cannot be, judged in isolation from the history or future of ‘similar’ cases. Not surprisingly, then, professionals have to care about

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what other professionals in their own agency and other agencies think of them. This is not so much a vanity, but practical necessity.6 What follows from this is that cases are not simply transformed, standardised and normalised according to ‘typified whole case stories’. This action is socially purposive. First, cases are not edited and re-edited without concern for their consequences. The key driver of such work is sentencing—this is often the de facto goal. Cases must be relevant to and made for their purpose. They are made with an awareness of the decision-making/fact construction chain. Each part of the process is dependent on the other as the anticipant and recipient of each other’s work: each part is communicating something to the other about sentencing goals and the appropriate way to get there (e.g. Shapland 1981; Hawkins in Gelsthorpe and Padfield). Cases are built relationally. Secondly, these stories are centred on meaningful plots. They are, and must be, meaningful, not only to the individual decision-maker, but to her working culture. These typified whole case stories are created by, and recreate, working cultures. They communicate ideas about what is and is not important to that culture and, in so doing, largely reproduce it. The way cases are made and re-made, then, is not simply about the case per se, but also about communicating ideas about the relationships between different agencies. How cases are re-presented, then, can be seen as not simply a cognitive puzzle awaiting completion. Nor is this work done by autonomous individuals operating in mutual seclusion. Rather, by communicating about and representing the case, they are also communicating their own work, their roles, attitudes and aptitude in relation to their professional communities (e.g. Felmming et al. 1992; Rock 1993; Roach Anleu and Mack 2017). This enables us to re-think of reason-giving accounts of the case for sentencing. These are produced purposefully so as to communicate to and with different audiences. This is why judicial sentencing reason-giving is commonly labelled by legal-rational scholars as ‘incoherent’ (e.g. Freiberg 2014; Henham 2018), because it is speaking to a range of different, 6 As

we shall see in Chapter 6, it also yields consistency in practice and a taken-for-granted idea of ‘efficiency’.

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often competing constituencies and audiences. Such apparent incoherence can be understood thinking about accountability as socially purposive. A straightforward meaning of accountability is line-accountability: accounting to one’s superiors and simply reporting one’s conduct etc. However, a second meaning of accountability may be called ‘socially-purposive account-giving’. This entails socially effective ways of generating defensible accounts for a range of different audiences and constituencies. Instead of thinking of reason-giving as a simple and direct precis or summation of thought, naïve to the expectations of the social world, accounts of the sentencing decision process are socially produced: the account-giver seeks to refer to a range of competing constituencies and concerns. Rather than accountability as simple line accountability, we can think about socially produced reason-giving as the ability to account plausibly to the conflicting concerns of different constituencies. Thus, in sentencing we should expect judicial accounts (e.g. by appeal court judgements; by first instance sentencers as reports to the appeal court; or to the parole board; to other judges; to researchers, etc.) often to appear from a purely normative perspective to be incoherent, contradictory, ambiguous, bland and unrevealing. This is because socially-purposive account-giving has to satisfy a range of often contradictory purposes and audiences. Accounts may attempt to address a range of different constituencies (e.g. victims, offenders, prosecution and defence lawyers, judicial colleagues, the appeal court, clerks, media etc.). From this perspective such accounts may be contradictory in one sense, but in another sense they may be viewed as an act of social and political skill or ‘craftwork’ (Tata 2007b). Thinking about decision-making accounts in this way, we can begin to think anew about reason-giving and the simple assumption that reason-giving yields unmediated explanation and so boosts openness and transparency. Judicial accounts of sentencing decisions are not and cannot be, as so much literature has assumed, only nor mainly a cognitive exercise in the application of normative penal philosophy. This enables us to think about the ability to produce meaningful, and socially effective accounts of sentencing action. By ‘socially effective’, I mean accounts whose messages are understood as intended by the different intended audiences. As researchers, we might instead (or at least in addition) focus much more

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on the ways in which accounts of sentencing work (both before and after judicial sentencing) are communicated and understood, both by different professional constituencies and lay people, not least the person sentenced. Here we can begin to think of accounting for sentencing as a kind of performance of balancing competing interests and values (Roach Anleu and Mack 2017). It is a way of pitching a representation of action to different communities and competing constituencies.

4

Conclusions and Implications

Legal rules can only make empirical sense when applied to practical situations: case facts. In the accounts of decision-making there is continual shuttling, a ceaseless dialogue, between what is, in any given case, described as the ‘legal rule’ and its application to the instant case and the relevant ‘facts’. Case ‘facts’ are necessarily constructed, transformed, standardised and in so doing, normalised. This chapter suggested that even though the distinctions between ‘rules’, ‘facts’, factors and ‘discretion’ are questionable as categories in the empirical description of sentencing, they are nonetheless vital to it, precisely because they are key reference points in socially-purposive accounts of professional sentencing work. While we should be careful not to take them literally as hard-and-fast categories, at the same time we cannot dismiss them as vacuous jargon. They are continually referred to, and are used to generate authority, by sentencing practitioners. As we shall now see in Chapter 4, they are key to the work, status and world-view and role-performance of the sentencing professions.

References Ashworth, A. (1989). Towards a Theory of Criminal Legislation. Criminal Law Forum, 1(1), 41–63. Ashworth, A. (2017). Prisons, Proportionality and Recent Penal History. Modern Law Review, 80 (3), 473–488.

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Ashworth, A., & Roberts, J. V. (2013). The Origins and Structure of Sentencing Guidelines in England and Wales. In A. Ashworth & J. V. Roberts (Eds.), Sentencing Guidelines (pp. 1–12). Oxford: Oxford University Press. Bagaric, M., & Wolf, G. (2018). Sentencing by Computer. George Mason Law Review, 25 (3), 653–709. Baldwin, J., & McConville, M. (1977). Negotiated Justice. London: Martin Robertson. Barnes, B. (1977). Interests and the Growth of Knowledge. London: Routledge. Baumgartner, M. (1992). The Myth of Discretion. In K. Hawkins (Ed.), The Uses of Discretion (pp. 129–162). Oxford: Oxford University Press. Beyens, K., & Persson, A. (2017). Discretion and Professionalism in a Breach Context. In M. Boone & N. Maguire (Eds.), The Enforcement of Offender Supervision in Europe (pp. 59–76). London: Routledge. Boone, M., & Maguire, N. (2018). Introduction: Comparing Breach Processes. In M. Boone & N. Maguire (Eds.), The Enforcement of Offender Supervision in Europe (pp. 3–18). London: Routledge. Bourdieu, P. (1977). Outline of a Theory of Practice. Cambridge: Cambridge University Press. Bourdieu, P. (1987). The Force of Law: Towards a Sociology of the Juridical Field. Hastings Law Journal, 38, 814–853. Brown, G. (2017). Sentencing as Practical Wisdom. Oxford: Hart Publishing. Cover, R. M. (1975). Justice Accused: Antislavery and the Judicial Process. New Haven: Yale University Press. Dhami, M., Belton, I., & Goodman-Dellayhunty, J. (2015). Quasirational Models of Sentencing. Journal of Applied Research in Memory and Cognition, 4, 239–247. Eisenstein, J., & Jacob, H. (1991). Felony Justice: An Organizational Analysis of Criminal Courts. Boston: Little, Brown and Company. Emerson, R. (1983). Holistic Effects in Social Control Decision-Making. Law & Society Review, 17 (3), 425–456. Feeley, M. (1979). The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Sage. Field, S. (2006). State, Citizen and Character in French Criminal Process. Journal of Law and Society, 33(4), 522–546. Flemming, R., Nardulli, P., & Eisenstein, J. (1992). The Craft of Justice. Philadelphia: University of Pennsylvania Press. Franko Aas, K. (2004). From Narrative to Database: Technological Change and Penal Culture. Punishment & Society, 6 (4), 379–393.

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Franko Aas, K. (2005). Sentencing in the Age of Information: From Faust to Macintosh. London: Glasshouse Press. Freiberg, A. (2014). Fox & Freiberg’s Sentencing: State and Federal Law in Victoria. Melbourne: Lawbook. Hawkins, K. (1992). The Use of Legal Discretion: Perspectives from Law and Social Science. In K. Hawkins (Ed.), The Uses of Discretion (pp. 11–46). Oxford: Oxford Socio-Legal Studies Clarendon Press. Henham, R. (2018). Sentencing Policy and Social Justice. Oxford: Oxford University Press. Hodgson, J. (2006). Conceptions of the Trial in Inquisitorial and Adversarial Procedure. In A. Duff, S. Farmer, & V. T. Marshall (Eds.), The Trial on Trial: Calling to Account (Vol. 2, pp. 223–242). Oxford: Hart Publishing. Hodgson, J., & Soubise, L. (2016). Understanding the Sentencing Process in France. Crime & Justice, 45, 221–265. Jacobson, J., Hunter, G., & Kirby, A. (2015). Inside Crown Court. Bristol: Policy Press. Jacoby, J., & Ratledge, E. (2016). The Power of the Prosecutor. Santa Barbara: Prager. Johansen, L. (2018). “Impressed” by Feelings-How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms. Social & Legal Studies. Advance Accessed 22 March. Lacey, N. (1992). Escaping the Jurisprudential Paradigm. In K. Hawkins (Ed.), The Uses of Discretion. Oxford: Clarendon Press. Liebling, A., & Price, D. (2003). Prison Officers and the Use of Discretion. In L. Gelsthorpe & N. Padfield (Eds.), Exercising Discretion (pp. 74–97). Cullompton: Willan Publishing. Lovegrove, A. (1989). Judicial Decision-Making, Sentencing Policy and Numerical Guidance. New York: Springer. Lovegrove, A. (1999). Statistical Information Systems as a Means to Consistency and Rationality in Sentencing. International Journal of Law and Information Technology, 7, 31–72. Lovegrove, A. (2008). A Decision Framework for Judicial Sentencing: Judgment, Analysis and the Intuitive Synthesis. Criminal Law Journal, 32, 269–286. McBarnet, D. (1981). Conviction. London: Martin Robertson. McVee, M., Dunsnore, K., & Gavelek, J. (2005). Schema Theory Revisited. Review of Educational Research, 75 (4), 531–566. Mears, D. (1998). The Sociology of Sentencing. Law & Society Review, 32(3), 667–724.

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Moody, S., & Tombs, J. (1982). Prosecution in the Public Interest. Edinburgh: Scottish Academic Press. Pina-Sánchez, J. (2015). Defining and Measuring Consistency in Sentencing. In J. V. Roberts (Eds.), Exploring Sentencing Practice in England and Wales (pp. 76–92). London: Palgrave. Pratt, A., & Sossin, L. (2009). A Brief Introduction of the Puzzle of Discretion. Canadian Journal of Law & Society, 24 (3), 301–312. Reiner, R. (2010). The Politics of the Police. Oxford: Oxford University Press. Roach Anleu, S., & Mack, K. (2017). Performing Judicial Authority in the Lower Courts. London and New York: Palgrave. Roberts, J. (1997). The Role of Criminal Record in the Sentencing Process. Crime and Justice, 22(1), 303–362. Roberts, J. (Ed.). (2015). Exploring Sentencing Practice in England and Wales. London: Palgrave. Roberts, J., & Hough, M. (2002). Public Attitudes to Punishment. In J. Roberts & M. Hough (Eds.), Changing Attitudes to Punishment (pp. 1–14). Cullompton: Willan Publishing. Roberts, J., Ryberg, J., & de Keijser, J. (2018). Sentencing Multiple Offenders. In J. Ryberg, J. Roberts, & J. de Keijser (Eds.), Sentencing Multiple Crimes (pp. 1–12). Oxford: Oxford University Press. Rock, P. (1993). The Social World of an English Crown Court. Oxford: Clarendon Press. Sewell, W. (1992). A Theory of Structure: Duality, Agency, and Transformation. American Journal of Sociology, 98, 1–29. Shapland, J. (1981). Between Conviction and Sentence: The Process of Mitigation. London: Routledge & Kegan Paul. Sudnow, D. (1965). Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office. Social Problems, 12(3), 255–276. Tadros, V. (2012). Fair Labelling and Social Solidarity. In R. Zedner & J. Roberts (Eds.), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (pp. 67–80). Oxford: Oxford University Press. Tata, C. (1997). Conceptions and Representations of the Sentencing Decision Process. Journal of Law & Society, 24 (3), 395–420. Tata, C. (2007a). In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and “Ethical Indeterminacy” in Criminal Defence Work. Journal of Law & Society, 34 (4), 489–519. Tata, C. (2007b). Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process. Social and Legal Studies, 16 (3), 425–447.

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Tata, C. (2019). ‘Ritual Individualization’: Creative Genius at Conviction, Mitigation and Sentencing. Journal of Law & Society, 46 (1), 112–140. Tata, C., & Hutton, N. (2003, October). Beyond the Technology of Quick Fixes: Will the Judiciary Act to Protect Itself and Shore Up Judicial Independence? Recent Experience from Scotland. Federal Sentencing Reporter, 16 (1), 67–75. Tata, C., Hutton, N., Wilson, J., Paterson, A., & Hughson, I. (2002). A Sentencing Information System for the High Court of Justiciary of Scotland: Report of the Study of the First Phase of Implementation, Evaluation and Enhancement (Centre for Sentencing Research). Taylor, P. (Lord Chief Justice of England & Wales). (1993). Address to the Annual Conference of the Law Society of Scotland on 21st March 1993, Gleneagles. Journal of the Law Society of Scotland, 38, 129–131. Tombs, J., & Jagger, E. (2005). Denying Responsibility. British Journal of Criminology, 46 (5), 803–821. Ulmer, J., & Johnson, B. (2017). Organizational Conformity and Punishment: Federal Court Communities and Judge Initiated Guideline Departures. Journal of Criminal Law and Criminology, 107 (2), 253–292. van Oorschot, I. (2020). The Law Multiple: Judgement and Knowledge in Practice. Cambridge: Cambridge University Press. van Oorschot, I., Manscini, P., & Weenink, D. (2017). Remorse in Context(s). Social and Legal Studies, 25 (3), 359–377. van Zyl Smit, D. (2002). Mandatory Sentences: A Conundrum for the New South Africa? In C. Tata & N. Hutton (Eds.), Sentencing and Society: International Perspectives (pp. 90–100). Aldershot: Ashgate. Weigend, T. (1983). Sentencing in West Germany. Maryland Law Review, 42(1), 37–89.

4 The Work of the Sentencing Professions: Animating Autonomous Individualism

Abstract This chapter explains how the sentencing professions (e.g. judges, lawyers, probation officers) manage the indeterminate relationship between rules and ‘rules’ and ‘facts’. It argues that both the concept of professions and the material work of sentencing professionals are key to the management of the dialogue between official rules and case-facts. In both the idea of individual professional responsibility, and in the social and collaborative work of sentencing professionals on the subjects of punishment, the trope of autonomous individualism is reflected and animated. Sentencing professionals are obliged to regard themselves as ethical, autonomous individuals personally bearing the weight of responsibility for justice. The chapter reveals how the work of the sentencing professions individualises collective problems in two ways. First, responsibility for social problems is mounted on the shoulders of individual professionals; and thus secondly, the subjects of punishment can only be conceived in terms of autonomous individualism. Keywords Sentencing · Punishment · Discretion · Case facts · Criminal justice professions · Legal profession · Individualisation · Individualization

© The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_4

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A Map of Chapter Four This chapter proceeds as follows. Explaining that the sentencing professions (e.g. judges, lawyers, probation officers) are responsible for the management of the otherwise indeterminate application of rules and facts, Sect. 1 invites the reader to consider how we should conceive the role of the sentencing professions. To do this, Sect. 2 explains two conceptions of professions: ‘the Trait Model’ and what I call ‘the Proprietorial-Control Model’. Section 3 reveals how the work of sentencing professions individualises collective problems in two ways. First, responsibility for these social problems is, in effect, delegated to individual sentencing professionals who are held to be, and hold themselves, responsible for just outcomes. Yet they can only respond on an individual case-by-case basis. Secondly, despite nods to social context, ultimately the subjects of criminal justice can only be conceived in terms of autonomous individualism. Concluding, Sect. 4 contends that through their communicative social activity, professions enact and animate the trope of autonomous individualism.

1

Constituting the Rules-Facts Dialogue: The Role of the Sentencing Professions

1.1

Understanding Professional Work: The Problem of Apprehension

If one wants to know how legal decision-making works in everyday reality, one might start by looking at the legal rule, expecting it to be determinative. Yet, as we saw in Chapter 3, the practical meaning of the legal rule, it quickly emerges, is caveated, dependent on its practical application to concrete situations. The rule depends on the context in which it is implemented: the specific case facts. So naturally one turns to the case ‘facts’, only to find that what count as ‘the relevant facts’ depend on ‘the legal rule’. Thus, the scholar of decision-making is required continually to shuttle between the two (the rules and the facts), unable to apprehend what determines the decision. Therein lies the seeming elusiveness of discretionary decision-making. It lies in the ceaseless dialogue between

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rules and facts: how rules are applied to facts and how facts are applied to rules—both defy apprehension and elude the scholar’s grasp. Professionals manage the relationship between the generic and the particular, between the rule and facts, the abstract and the concrete. Their work and relationships conduct a continual dialogue between the idea of an authoritative and determining rule and the particularities of the facts of the instant case. Examining the idea and performance of professional sentencing work allows us to understand the indeterminate relationship between rules and facts. For this reason, let us interrogate the meaning of ‘profession’ and its associated ideas; as well as the effects of inter-professional competition and collaboration: boundary maintenance. In particular, this chapter reveals the individualising effects of professional self-image, casework, and responsibility, both for the professional and the person subject to sentencing.

2

Conceptions of Professions

I outline two approaches to conceptualising ‘professions’ in general and the sentencing professions in particular: the Trait Model and the ProprietorialControl Model. In both cases, a professional is more than someone who is paid (e.g. a professional sportswoman rather than an amateur). Both models agree that a professional applies generic principles to individual cases. However, beyond that their work and identity is conceived differently.

2.1

The Trait Model

The Trait Model of the professions seeks to determine whether or not an occupation is truly a ‘profession’ by determining whether it meets certain essential traits (e.g. Marshall 1939; Parsons 1939; Sommerlad 2015). Commonly-cited traits include: formal education based on a prescribed curriculum; competitive/selective entry requirements into the profession and control of the number of new entrants; autonomous self-governance and, if necessary, suspension or expulsion from the profession; expertise and accuracy in applying abstract, esoteric knowledge to individual cases;

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collegiality; autonomous self-governance of the profession meaning that the state licensing the occupation privileged access to secure monopolistic control of an area of work (e.g. through registration). Finally, and perhaps most distinctively, in return for the state allowing an occupation to control an area of work against the intrusion of outright market competition, the profession is expected to require higher moral standards from its members. To be a professional necessitates a claim to elevated ethical standards of work, compared with say the work of a straightforward business whose main preoccupation may be to maximise profit. Thus the Trait Model observes that a profession guarantees ethical and altruistic behaviour in which the best interests of the client and public service are paramount, trumping narrow personal (e.g. pecuniary) self-interest (e.g. Marshall 1939; Parsons 1939). In their different ways, judges, defence and prosecuting lawyers, social workers and probation officers are required, and require themselves, to work to elevated moral standards. Above all, they must each work in the interests of others: the client and/or the public good. This claim of duty and honour, of responsibility not to oneself but to the client and/or the public interest, is the overriding and self-conscious sensibility of the sentencing professions.

2.2

The Proprietorial-Control Model

The Proprietorial-Control Model emphasises that occupations which gain the heightened status of ‘profession’ ‘own’ an area of work: a bounded property belonging to it. Secondly, professional work controls the relationship between rules and facts. Johnson (1972: 45) argues that professionalism is: …a particular type of occupational control, rather than the expression of the inherent nature of particular occupations. A profession, then, is not an occupation but a means of controlling an occupation.

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The Application of Abstract Knowledge and Professional Ownership Deliberately eschewing a very narrow definition inThe System of Professions, Abbott avoids an exacting, technical definition of ‘profession’, favouring instead and emphasis on exclusion and the abstraction of knowledge: “professions are somewhat exclusive groups of individuals applying somewhat abstract knowledge in individual cases” (1988: 318).1 It is that ability to apply abstract knowledge to specific individual cases that means that sentencing professionals are the practical custodians of justice in sentencing. This does not mean, however, that abstract knowledge (theory) is unimportant. Abbott argues that a key way in which occupational groups claim and achieve the status of ‘profession’ is through reference to formal abstract academic knowledge: “abstract knowledge is central” (Abbott 1988: 102). Further, Abstraction is the quality that sets interprofessional competition apart from competition among occupations in general…. [O]nly a knowledge system governed by abstractions can redefine its problems and tasks, defend them from interlopers…. Abstraction enables survival. (Abbott 1988: 9)

It is the supposition that action is determined and structured by formal, abstract theoretical knowledge that elevates the status of ‘experts’ to ‘professionals’.

The Ceaseless Dialogue Between ‘Rules’ and ‘Facts’ The application of the abstract, generic rule to the instant case is inevitably a matter of uncertainty and thus judgement (professional discretion). Central to professions is the control and ownership of that uncertainty, what Johnson calls the “producer-consumer relationship”. This also entails the ownership of the relationship between what economists would call the 1Thus, trained continental judges but also judges who are lawyers by background (though perhaps less so lay judges) can be seen as ‘professionals’ even if they are not deemed to be professionals according to the Trait Model of ‘profession’.

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‘supply of ’ and ‘demand for’ services. The accomplishment of the professional ownership of the supply-demand relationship requires control of the generic-particular relationship: the custody of both the generic (i.e. esoteric, formal abstract knowledge which is held exclusively by professionals); and, the determination of the nature of the given problem/case (‘the facts’). Most crucially it is the ownership of the relationship between ‘the generic’ and ‘the particular’ which affords control and exclusion: the determination as to ‘relevance’, ‘applicability’, ‘appropriateness’ of one to the other. That relationship/dialogue is shifting, ephemeral, and elusive—it is ultimately non-apprehendable. But in sentencing references to juridical structure lend an aura of determinacy—a determinacy which appears to the non-professional (e.g. defendant) to be volatile, appearing and disappearing, seemingly mercurial. Yet what of professional ethics and client choice?

Professional Ethics and Client Choice It might be thought that professional advice about the inter-relationship between the generic rule and the particular case is secondary to the sovereignty of client choice. Consumers of professional advice and representation decide, and choose when, whether and how to follow professional advice. Indeed, the relationship is sometimes likened to that of taxi-driver and customer (Mather 2003; Mather et al. 1995). In that analogy, you as the customer tell your taxi-driver your preferred destination (or outcome) and the taxi-driver can advise on the most effective options for achieving your will. Regulation of entry to the occupation of taxi-driver and customer vigilance means that you can see for yourself whether or not your driver is acting in your best interests. You can judge for yourself (e.g. using a map or an app on your phone) whether the advice is best for you. If your driver does not listen to your preferences you can try another cab. In this vision, market choice and regulation of quality ensure that the supply of the service meets the demand of the customer. Yet, in the provision of professional services the effectiveness of market mechanisms are more limited because the distinction between professional service ‘supply’ and client ‘demand’ is blurred. Determination of the ‘facts’ and ‘the rule’, and

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in particular their inter-relation, is more or less shaped by professional judgement. While it may be conceded that the indeterminacy of ‘rules’ and ‘facts’ and their inter-application means that professional judgement (rather than consumer sovereignty) is key, it may be said that the ethical duty placed on the professional circumscribes the ambit of that judgement. The ethical elevation of the professionals (duty to act in the best interests of the client and/or public) is often relied on as a further level of protection for those subject to the criminal process. Yet, here also, the position is more complex and the meaning of principles like ‘best interests of the client’ is, in practice, malleable and mediated by a range of dynamics (Tata 2007a). Consider the defendant’s most important decision: how to plead? Although formally the choice belongs to the defendant, in practice her/his choice is dependent on and shaped by the asymmetrical lawyer-client relation, which make it difficult for most clients to exercise complete and informed control of their cases so as to ‘instruct’ the lawyer (Tata and Gormley 2016). The literature on the relationship between criminal defence lawyers and their clients shows clearly that while in theory defendants “instruct” their lawyers, the reality is more complex. Empirical research “has consistently highlighted the relative passivity of most clients” (Tata and Stephen 2006: 732; Carlen 1976; Ericson and Baranek 1982; Jacobson et al. 2015; McConville et al. 1994; Newman 2012; Tata and Gormley 2016). The limited educational, social and personal resources of most (though not all) defendants, aggravated by factors such as addictions, can severely compromise defendants’ agency. Additionally, these limitations may be exacerbated by the immediate stress and anxiety of being subject to criminal charges (especially while held in detention awaiting trial or sentence); the unfamiliar vernacular of the legal system; and the requirements of criminal and court procedures (which can vary by court in some jurisdictions). While not denying defendant agency, we can nonetheless see that the idea of defendants as ‘rational consumers’ ‘instructing’ their lawyers is, for the most part, wide of the mark. Perhaps we should not be entirely surprised. Professional ethical codes are symbolically important, but cannot, in themselves, be determinative in any given case. As rule-like norms, the practical meaning of ethical codes depend on the shifting and contingent

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relationship between the professional and the particular situation. As in so many other areas, rules run out, are abstract, general, vague, and sometimes contradictory. As argued by Chapter 2, the practical meaning of ‘rules’ is contingent on the ‘case facts’ and vice versa. Having established the asymmetrical relationship between defence lawyers and most (though not all) clients, and the relatively limited ability of many defendants to take firm charge of their own cases, let us consider further the role of professions in sentencing work. What role do professions, and indeed does the idea of a profession, have in the interplay of legal rules, case facts and discretion? Through the control of the dialogue between formal, abstract knowledge (generic principles, rules etc.) and the facts of the particular instance, professionals may appear to make all the crucial decisions, to the exclusion of outsiders. Professionals determine how facts are selected, edited, transformed, how rules and facts apply to each other, if and how they are ‘relevant’ in the instant case. In that way, the work of the professional may appear magical, unknowable to the outsider. This might be taken to mean that the professional control of the rules-facts relationship is some kind of ‘confidence game’, trick, or, charade mesmerising the client (e.g. Blumberg 1967; Marsh and McConville 2014; McConville et al. 1994; Newman 2012). Yet, professional activity is not the result of unrestricted autonomous individual choice, but rather performs the demands of expected roles, mutual obligations and conventions between professionals, producing recognisable communication to and with each other (e.g. Mack and Roach Anleu 2007; Mulcahy 1994; Roach Anleu and Mack 2017; Rock 1993; Tata 2019). Professional relationships animate and infuse the practical reality of the rules-facts dialogue (e.g. Abbott 1988; Bastard and Dubois 2016; Tata 2007a, b). In doing sentencing work, professionals are enacting relationships among and with each other as well as constituting their own self-identity. Crucial to that enactment is the idea of autonomous individualism.

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The Individualising Work of the Sentencing Professions

The work of sentencing professionals individualises what otherwise may be seen as collective problems (problems to be debated and resolved through explicitly political discourse) in two ways. Firstly, responsibility for these problems is mounted on the shoulders of individual professionals. Secondly, the subjects of criminal justice have largely, therefore, to be conceived in terms of autonomous individualism.

3.1

Autonomous Individualisation in the Discourse of Professional Responsibility

Despite the limitations of the Trait Model, it is key to the professional claims to exclusive proprietorial control of an area of work. The idea of personal, individual responsibility for a case is central to the trope of the honourable professional. Although sentencing is a social and collaborative process demanding communication and mutual obligations among professionals, the process is also be felt by professionals to be marked by the autonomous individualism of the professional. To believe in one’s professional role, status and identity, one must also accept, at some level, the idea that one is individually and personally responsible for cases. Sentencing professionals, most especially judges, are the practical custodians of justice: they work on the application of high principle to the specific case and vice versa. Professional probation officers, lawyers, and especially judges are well aware of their responsibility in sentencing, that the buck stops with them to get the decision right. Professional work is conducted through a subjective lens of individualism in which: the individual is the true unit of service, because service depends on individual qualities and individual judgment, supported by an individual responsibility which cannot be shifted on to the shoulders of others. (Marshall 1939: 331)

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In variable ways, legal professionals employ a range of justificatory frames about the ‘needs of the case’, ‘public service’, ‘duty to the court’ etc., which render the precise professional duty in any given instance ethically indeterminate (Tata 2007a). Nevertheless, the claim to be a professional necessitates the enactment of personal and individual moral duty. This sense of autonomous individual duty is a burden which is also celebrated as chivalrous altruism, valorously and honourably putting others and public service above oneself (Sommerlad 2015). One of the great proponents of the Trait Model, T. H. Marshall, explained how this sense of inalienable individual responsibility is bound up with the professional’s sense of self and felt to be deeply personal. The professional does not give only his skills. He gives himself …. [A legal professional] is called upon to show judgement and an understanding of human nature, as well as knowledge of […] law. (Marshall 1939: 328, emphasis added)

So it is that professionals, and perhaps most especially judges aware of responsibility in ‘their’ court to ‘justice’, may experience the job as a relatively lonely, solitary, individual responsibility (e.g. Darbyshire 2011; Jamieson 2019; Roach Anleu and Mack 2017).2 This celebration of the professional trope of the heroic burden of autonomous individualism has an important association. It tends to convert social problems into ones of autonomous individualism. What might otherwise be addressed as collective problems addressed by political discourse are mounted onto the shoulders of individual professionals, whose discretion means they are required to be individually and personally responsible for solving or alleviating individual problems, which may otherwise be conceived as collective political problems (Bourdieu 1987, 1999; Lenoir 1999). For example, people may visit their doctor for help with problems which may manifest as physical or mental health issues, but

2 Perhaps

this also explains why researchers who note flaws in the justice system encounter justice professionals who, even when it is emphasised that the flaws are systemic rather than individual, take those flaws personally. Easily feeling personally wounded, justice professionals may respond to such systemic criticism by earnestly explaining and defending their own individual, personal practices. For them, the process and system appears as the aggregation of individual acts of personal professional responsibility.

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could as easily be framed as collective problems of poverty, inequalities, etc. It saddles the individual professional with responsibility for addressing individual instances of collective, social problems. Social problems are delegated to professional discretion in individual instances. Professional service must be “supported by individual responsibility which cannot be shifted on to the shoulders of others” (Marshall 1939: 331). ‘The problem’ is dumped at the door of the professional unless and until they can find a way either to solve it, or more commonly to shift it to the door of another professional. Not surprisingly, sentencing professionals (e.g. defence lawyers, social workers, probation officers, and most especially judges) feel a tremendous burden of responsibility in deciding, on an individual basis. The weight of the world of social problems is delegated to them on an individualised basis: to determine the often individuallyinsoluble situations of people and the underlying social problems which their cases imply (Bourdieu 1987; Lenoir 1999). However, the work of the sentencing professions regenerates autonomous individualism in a second way: the autonomous individualisation of the subject of punishment.

3.2

The Autonomous Individualisation of the Subject of Sentencing

Individual sentencing professionals are required to take on social problems in their individual instances. Partly because they have only individualistic remedies at their disposal, the problem can only be diagnosed through the lens of autonomous individualism. To complete (or ‘dispose’ of ) the case, the focus has to be on a conception of autonomous individualism in which the person is presumed to have autonomy unless otherwise shown. Just as the conception of the sentencing professionals operates on this individualised conception of freedom, so too law operates and constitutes a binary notion of freedom and rationality of the person who is the subject of sentencing. Starting from a state-centric conception of coercion, legal processes necessarily downplay collective features of criminal cases (e.g. poverty and social deprivation) about which law can do little. Law and legal processes

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must focus first and foremost on individuals presumed to be autonomous and rational. “Courts retail an implicit theory of normal personhood that is necessary to hold individuals accountable” (Fielding 2006: 11). Both through its everyday practices and through its pronouncements of high principle, law and the institution of punishment (including sentencing) can only assume an individualised conception of consciousness, in which the individuals before it: have choice, will, intention, rationality, freedom, and so on….[P]risons, reformatories, and probation do the same thing, taking for granted [individualised] conceptions of the person and projecting these onto the actual inmates or clients they encounter. (Garland 1990: 268)

Thus, even attempts at bringing forward information to provide social ‘context’ to the case must focus on the individual. Most jurisdictions employ some way of providing the court with information about the character, background, family and social context of the person to be sentenced. They can only do so on an individual-by-individual basis. Such information (provided for example through pre-sentence reports3 and pleas in mitigation) is intended to ‘humanise’ the person (Tata 2019), but can only be recognised by individualising responsibility for that context. So individuals are required to ‘own’ their problems of social exclusion. Because professionals must restrict themselves to remedying problems on an individual-by-individual basis, the shared and collective underlying or systemic commonalities have to be ignored. Typically, this becomes a matter of diagnosing the cause of the problem according to the profession’s available remedy, which can only be centred on the individual. So the individual may be represented as selfish or self-indulgent, lacking selfdiscipline, self-will, or self-awareness, etc. Even courts intended to solve the problems thought to drive offending seek to a lesser or greater extent to remedy those problems through action to responsibilise the individual, 3 What

these reports are or have been called varies (e.g. Pre-Sentence Investigation Reports, Social I/Enquiry Reports, Criminal Justice Social Work Reports, Court Reports, Character Reports etc.). Over time and across the world this investigation and reporting to the court has been carried out by different agencies including social work, probation, voluntary organisations, private companies. See e.g. Beyens and Scheirs (2010); Canton and Dominey (2018); Johansen (2018); Mair (2016); Morgan and Haines (2007); Robinson (2018); Tata (2018); Tata et al. (2008).

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requiring the person to show discipline and specific modes of rationality (e.g. Miller 2007, 2009). Consequently, the social structural commonalities of poverty, deprivation, poor mental and physical health, limited life-chances, neglect, abuse, addictions etc. tend to be marginalised. Indeed, the humdrum, daily caseby-case recitation of these adverse conditions about individuals can tend to lead to a certain weary insouciance on the part of sentencing professionals and even a feeling of irrelevance. That should be hardly surprising and nor should we, (as so much research has a tendency to do), castigate individual professionals (e.g. Tombs and Jagger 2006; Marsh and McConville (2014); Newman 2012; Newman and Ugwudike 2014). To do so is in fact to fail to stand back from the cultural trope of the heroic individual professional who can somehow save souls from the compounding effects of disadvantage and criminal justice. The bald truth is that there is little that individual sentencing professionals can do to address these structural underlying conditions.4 Stories of poverty, deprivation, childhood neglect, abuse, social and economic marginalisation are endemic and thus rendered unremarkable. Tata (2019) observes that it can be commonplace for judges and defence lawyers to miss references to adverse personal circumstances in ‘background’ pre-sentence reports. To take one example, in the ‘education’ section of a report there is reference to the offender’s ‘learning difficulties’ and having attended ‘a special school’ and the report hints that this may have implications for his comprehension of the case: Judge 7: I didn’t need to know what school he went to […..]

4 Perhaps

it is unsurprising that problem-solving courts have attracted much academic and practitioner interest. These multi-disciplinary court teams offer a way of trying to solve the underlying problem thought to cause offending. So courts have been established or mooted to solve the problems underlying offending such as problematic use of drugs and alcohol, or the problem of veterans returning to civilian life etc. They do this through the ‘tough love’ of judicially-led monitoring of the individual by multi-disciplinary court teams. Conceivably one could have a court to seek to solve almost any problem deemed to underlie offending. There is only one exception which PSCs are incapable of addressing and it is the elephant in the room: poverty and social inequality. Whether such courts ‘juridify’ or ‘courtify’ social problems is to some extent a debate around principle and pragmatism: does one wait for politics to address the problem of poverty or does one, pragmatically, try to ‘do good’ with the limited (and inescapably individualising lens) of law?

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Judge 5: [For] example [if ] he was a product of Eton, Oxford or The Guards and was up on this sort of offence, you would be saying: ‘Wait a minute, what’s all this about?!’ Judge 6: Now, you’ve just made my point for me! Judge 7: If I went to the local school, left without qualifications, fine, I mean I don’t think it matters. But if somebody did go to somewhere unusual like Eton or Harrow or whatever then maybe that’s something we should throw into the equation.

Because professionals are condemned repeatedly to focus only on the unique individual (rather than the wider population), deprivation comes to be seen as the unremarkable norm. It becomes the benchmark from which an ‘interesting’ exception is sought (Foucault 1977: 182–192). Ironically, it is only where a person is considered unusual (e.g. privileged as in the excerpt above), that their social circumstances are considered worthy of particular note. This, then, raises an intriguing paradox as to whether the humanising projection of ‘the unique individual’ subject to punishment is also a process of normalisation—a point which we will develop in Chapter 5.

4

Conclusions

So open and indeterminate are rules (including principles, guidelines etc.) and so dependent are they on the specific ‘case facts’, that the practical meaning of those principles is in reality contingent on how the relationship between generic principles and the individual case. It is in the management of the generic-particular relationship that professional work is done. Individual professionals constituting the sentencing process (e.g. judges, lawyers, probation officers) must interpret the operational meaning of generic terms and principles and apply them to the particular instance of ‘facts’ and vice versa. Case ‘information’ carries and constitutes the meaning of the relationships. Relationships provide more than just the ‘context’ of doing sentencing work. Sentencing work is also the practice, recognition and negotiation

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of relationships. The social activity of the sentencing professions is, as we shall see, more than a surround, or, context, it does sentencing work itself. Through their communicative, social activity, professions enact and renormalise the trope of autonomous individualism. They do this in two ways. First, inter- and intra-professional collaboration celebrates the idea of the unique individual so enabling expeditious case-disposal. Secondly, through inter-professional competition, professional work divides the sentencing universe into provinces of work, akin to private property. Let us now develop this argument in Chapter 5.

References Abbott, A. (1988). The System of Professions. Chicago: Chicago University Press. Bastard, J., & Dubois, C. (2016). Making Sense or/of Decisions? Collective Action in Early Release Process. In A. Hondeghem, X. Rousseaux, & F. Schoenaers (Eds.), Modernisation of the Criminal Justice Chain and the Judicial System (pp. 169–172). Cham: Springer. Beyens, K., & Scheirs, V. (2010). Encounters of a Different Kind: Social Enquiry and Sentencing in Belgium. Punishment & Society, 12(3), 309–328. Blumberg, A. (1967). The Practice of Law as Confidence Game: Organizational Cooptation of a Profession. Law & Society Review, 1(2), 15–40. Bourdieu, P. (1987). The Force of Law: Towards a Sociology of the Juridical Field. Hastings Law Journal, 38, 814–853. Bourdieu, P. (1999). The Abdication of the State. In P. Bourdieu et al. (Eds.), The Weight of the World: Social Suffering in Contemporary Society (pp. 181–188). Stanford: Stanford University Press. Canton, R., & Dominey, J. (2018). Probation. Abingdon: Routledge. Carlen, P. (1976). Magistrates’ Justice. London: Martin Robertson. Darbyshire, P. (2011). Sitting in Judgement: The Working Lives of Judges. Oxford: Hart Publishing. Ericson, R., & Baranek, P. (1982). The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process. Toronto: University ofToronto Press. Fielding, N. (2006). Courting Violence. Oxford: Clarendon Press. Foucault, M. (1977). Discipline and Punish: The Birth of the Prison. New York: Vintage Books.

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Garland, D. (1990). Punishment and Society: A Study in Social Theory. Oxford: Clarendon Press. Jacobson, J., Hunter, G., & Kirby, A. (2015). Inside Crown Court. Basingstoke: Palgrave Macmillan. Jamieson, F. (2019). Judicial Independence: The Master Narrative in Sentencing Practice. Criminology & Criminal Justice, 19 (2). https://doi.org/10.1177/ 1748895819842940. Johansen, L. (2018). “Impressed” by Feelings-How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms. Social & Legal Studies, 28, 250–269. Johnson, T. (1972). Professions and Power. London: Routledge. Lenoir, R. (1999). A Living Reproach. In P. Bourdieu et al. (Eds.), The Weight of the World (pp. 239–253). Stanford: Stanford University Press. Mack, K., & Roach Anleu, S. (2007). Getting Through the List’: Judgecraft and Legitimacy in the Lower Courts. Social and Legal Studies, 16 (3), 341–361. Mair, G. (2016). What Is the Impact of Probation in Advising Sentencing and Promoting Community Sanctions and Measures? In F. McNeill, I. Durnescu, & R. Butter (Eds.), Probation: 12 Essential Questions (pp. 61–83). Cham: Springer. Marsh, L., & McConville, M. (2014). Criminal Judges: Legitimacy, Courts and State-Induced Guilty Pleas in Britain. Cheltenham: Edward Elgar. Marshall, T. H. (1939). The Recent History of Professionalism in Relation to Social Structure and Social Policy. Canadian Journal of Economics and Political Science, 5 (3), 325–340. Mather, L. (2003). Fundamentals: What Do Clients Want? What Do Lawyers Do? Emory Law Journal, 52, 1065–1086. Mather, L., Maiman, R., & McEwen, C. (1995). The Passenger Decides on the Destination and I Decide on the Route: Are Lawyers Expensive ‘Expensive Cab Drivers’? International Journal of Law and the Family, 9, 286–310, at 7–11. McConville, M., Hodgson, J., Bridges, L., & Pavlovic, A. (1994) Standing Accused. Oxford: Clarendon Press. Morgan, R., & Haines, K. (2007). Services Before Trial and Sentence. In L. Gelsthorpe & R. Morgan (Eds.), Handbook of Probation (pp. 182–209). Cullompton: Willan Publishing. Miller, E. (2009). Drug Courts and the New Penology. Stanford Law & Policy Review, 20, 417–455. Miller, E. (2007). The Therapeutic Effects of Managerial Re-entry Courts. Federal Sentencing Reporter, 20 (2), 127–135.

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Mulcahy, A. (1994). The Justifications of Justice. British Journal of Criminology, 34 (4), 411–430. Newman, D. (2012). Still Standing Accused: Addressing the Gap Between Work and Talk in Firms of Criminal Defence Lawyers. International Journal of the Legal Profession, 19 (1), 3–27. Newman, D., & Ugwudike, P. (2014). Defence Lawyers and Probation Officers: Offenders’ Allies or Adversaries? International Journal of the Legal Profession, 20 (2), 183–207. Parsons, T. (1939). Professions and Social Structure. Social Forces, 17 (4), 457–467. Roach Anleu, S., & Mack, K. (2017). Performing Judicial Authority in the Lower Courts. London and New York: Palgrave Macmillan. Robinson, G. (2018). Delivering McJustice? The Probation Factory at the Magistrates Court. Criminology & Criminal Justice. Advance Accessed 23 July. Rock, P. (1993). The Social World of an English Crown Court. Oxford: Clarendon Press. Sommerlad, H. (2015). The “Social Magic” of Merit: Diversity, Equity, and Inclusion in the English and Welsh Legal Profession. Fordham Law Review, 83(5), 2325–2347. Tata, C. (2007a). In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and ‘Ethical Indeterminacy’ in Criminal Defence Work. Journal of Law & Society, 34 (4), 489–519. Tata, C. (2007b). Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process. Social & Legal Studies, 16 (3), 425–447. Tata, C. (2018). Reducing Prison Sentencing Through Pre-sentence Reports? Why the Quasi-Market Logic of “Selling Alternatives to Custody” Fails. Howard Journal of Crime and Justice, 57 (4), 472–494. Tata, C. (2019). “Ritual Individualization”: Creative Genius at Conviction, Mitigation and Sentencing. Journal of Law & Society, 46 (1), 112–140. Tata, C., Burns, N., Halliday, S., Hutton, N., & McNeill, F. (2008). Assisting and Advising the Sentencing Decision Process: The Pursuit of ‘Quality’ in Pre-sentence Reports. British Journal of Criminology, 48(6), 835–855. Tata, C., & Gormley, J. (2016). Sentencing and Plea Bargaining: Guilty Pleas Versus Trial Verdicts. In M. Tonry (Ed.), Criminal Courts and Prosecutors—Criminology & Criminal Justice. Oxford Handbooks Online. New York: Oxford University Press. https://doi.org/10.1093/oxfordhb/9780199935383.013.40.

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Tata, C., & Stephen, F. (2006). Swings and Roundabouts: Do Changes to the Structure of Legal Aid Remuneration Make a Real Difference to Criminal Case Management and Case Outcomes? Criminal Law Review, 8, 722–741. Tombs, J., & Jagger, E. (2006). Denying Responsibility: Sentencers Accounts of Their Decisions to Imprison. British Journal of Criminology, 46 (5), 803–821.

5 The Humanising Work of the Sentencing Professions: Individualising and Normalising

Abstract In their work, sentencing professionals do not simply make decisions about cases, but also communicate and solidify the boundaries of the exclusive professional ownership of a territory of sentencing work. In the repeated practice of solidifying these boundaries, the sentencing process is divided into individual, and separate entities, barely connected with each other. Yet for the person subject to the process, it has to be viewed as a jumble of inter-connecting implications. While professionals and supporting scholarship portray the process in linear and sequential terms, the person proceeded against has, (and is subtly encouraged), to connect the potential implications of past and future decisions with the immediate decision she faces. Without any controlling plan (indeed because of its very lack), the independent work of autonomous professions symbiotically achieves the implicitly-shared goals of the expeditious disposal of cases and the generation of ‘ideal’ offenders. This is done in two ways: through humanisation work which individualises and requires the person proceeded against to accept individual responsibility; and secondly, because of the loosely connected interfaces between the work of different professions, the person proceeded against has to try to anticipate the consequences of her self-presentation in one (seemingly autonomous) stage of the process for another. © The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_5

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Keywords Punishment · Mitigation · Corrections · Humanisation · Guilty pleas · Remorse · Criminal justice efficiency · Lawyers · Defendants · Pre-sentence reports A Map of Chapter Five This chapter proceeds as follows. Section 1 sets out the exclusive and proprietorial control by individual professions of apparently distinct dominions of the sentencing process. Section 2 argues that practices to humanise defendants also demand alignment with notions of the ‘ideal’ offender, who is seen to accept guilt freely and sincerely. Developing this argument, Sect. 3 proposes that the dis-connections between the work of autonomous professional groups facilitates the generation of ‘ideal’ offenders. By dividing up the process as the exclusive responsibility of autonomous professional dominions disinterested in each other’s work, the person’s experience is marked by disconnections. Concluding, Sect. 4, observes that it is precisely this absence of any joined-up system, deliberate plan or controlling mind, that so effectively cultivates the generation of ‘ideal’ criminal clientele.

1

Professional Boundaries

Chapter 4 revealed how the proprietorial work of the sentencing professions individualises collective problems in two ways. First, responsibility for these problems is mounted on the shoulders of individual professionals. Secondly, and correspondingly, the subjects of criminal justice (e.g. people subject to sentencing) have to be conceived of in terms of autonomous individualism. Yet, what of work (e.g. pre-sentence reports, pleas in mitigation etc.), which shows the person as a unique and whole human being having to make decisions in her social context? This chapter argues that ‘humanisation work’ plays a critical, but little-observed, role in generating admissions of guilt which are shown to be free and sincere. Although humanisation work is often seen as a benign intervention mitigating and obstructing punishment, it also tends to yield ‘ideal’ culpable offenders who are shown to accept freely and sincerely their individual autonomous responsibility for offending.

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Inter-professional Competition and the Division of Sentencing Work

Roach Anleu and Mack neatly identify: professional boundary maintenance: claims that certain practices, tasks, and responsibilities are legitimate legal work and therefore should be performed exclusively by legal personnel…. To achieve this, legal professionals tend to discredit the work of other occupations by claiming they are less professional or competent and more biased when dealing with ‘legal issues’. (Roach Anleu and Mack 2001: 158)

Both legal (e.g. judges) and therapeutic (e.g. probation) professionals can lay legitimate claim to expertise in the allocation of control and punishment. Judicial ownership (and legal ownership more generally) of sentencing is reinforced and delineated in the inter-professional competition of sentencing work. In nominally adversarial systems, a key node of interchange and competition, is in mitigation and humanisation prior to sentencing. Here the defence lawyer’s pre-sentence plea-in-mitigation can easily be a sensitive site of tension between defence lawyer and judge. The defence lawyer must find a way to persuade the judge of arguments for a more lenient sentence, but without appearing to encroach on the judge’s ownership of sentencing; so for example, defence lawyers learn to be careful to avoid making directive propositions. Yet since the professional distance is greater than between defence lawyer and judge, objects such as the pre-sentence report become a text which may be the site of implicit negotiation, and contest, between two professional world views, nomenclatures, and objectives (Tata 2018). One profession may tend to deride the proposition of another ‘alien’ profession which may be seen to be encroaching on its territory. Judges (and to a lesser extent lawyers) may resist or be irked by the notion of ‘recommendations’ by social workers or professional probation officers, deriding them as ‘unrealistic’ or lacking ‘credibility’ (e.g. Mair 2016; Morgan 2003; Morgan and Haines 2007; Tata 2018). Secondly, the logic of such arguments may be decapitated or inverted by another profession so that, for example, only the conclusions of a pre-sentence report are

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read, or read ‘back-to-front’ by judges and so by defence lawyers (e.g. Beyens and Scheirs 2010; Tata 2018). Yet, as we shall see, this implicit inter-professional competition which maintains exclusive ownership of autonomous territories of work also tends to yield unintentional effects: the generation of ‘ideal’ criminal clientele who manifestly accept freely and sincerely their criminal responsibility.

2

Performing Legitimacy: The Cultivation of Ideal Clientele

The routine practice in everyday sentencing work of the carving out by a profession of proprietorial ownership of an area of work as supposedly separate and discrete can have significant consequences for the experience of the person subject to it. It makes sense to professionals, (and their supporting academic and vocational disciplines), to regard the process as a series of consecutive, autonomous decision points controlled by different professions. Different decision points (e.g. arrest, charge, remand or conditional liberation, conviction, plea in mitigation, pre-sentence report, sentence, implementation of the sentence, etc.) are each ‘owned’ by separate professions with their ways of interpreting and constructing the world. Yet this cannot be so for the person proceeded against by the state. They have to view the process not as a series of discrete, unconnected decision points, but a jumble of inextricably linked inter-connections. Professionals must be seen to be blind to these inter-connections. Each formal decision point must be treated as autonomous, uncontaminated by any connection to another. Thus, no professional is responsible for ‘owning’ the inter-connections between them. The defendant must make these connections herself, possibly prompted by subtle nods and nudges from her defence lawyer as to the consequences of one decision for another. Thus, it can be said quite truthfully that there is no pressure, no force or overt intimidation exerted by any professional upon the person, for example to plead guilty, or to accept the agreed narrative of the crime. There does not need to be. In part, because of the silos of autonomous individual professions, only the defendant has to traverse the officially-distinct stages in the process,

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each governed by separate professions. She has to consider how her selfpresentation may impact on subsequent decisions (e.g. about her character and her account of what she has pled guilty to). People subject to criminal justice must work upon themselves to gain perceived benefits (e.g. liberation from remand, mitigation, sentence reductions, a relaxation in community supervision or the prison regime, parole etc.). This entails reconfiguring one’s conduct, personal presentation, and account of culpability. These modifications of behaviour and outlook mean that the person begins to align with the image of the ‘ideal’ offender. The ideal offender accepts personal responsibility and acknowledges voluntarily and sincerely her own criminal culpability. Importantly, none of this is achieved by a grand conspiracy. It is not through planning, deliberate intent, nor malevolence, but precisely because of the autonomy of different individual stages of the process, which work, without design, symbiotically. In this way, the disconnections between the work of individual professions yield shared goals. The different values and requirements of formally separate stages in the criminal process which ‘belong’ to different professions generate expeditious case-disposal of ideal criminal clientele.

2.1

Humanisation Work Demands Acceptance of Autonomous Individual Responsibility

‘Humanisation work’ in the sentencing process refers to those practices which offer the chance to undertake the humanisation of the person to be punished, so that the sentencing court can understand and see her as a whole human being. This is not to excuse offending, but to render it more comprehensible. The work of humanisation makes it possible to understand the person as a whole, so obstructing the tendency to condemn her as inhuman. Humanisation work in sentencing includes the processes of actual, and potential attention to: the person as a whole human being in context; her personal and social circumstances; her unique life-story; her views about the handling of her own case; the possibility of mitigation; the examination of her character; her story of the offence; and crucially, her attitude towards her responsibility and blameworthiness for the crime. This work incorporates both the actual and anticipated means of gathering information to understand and depict the person in relation to the offence.

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‘Humanisation work’ is vital to all penal systems which claim legitimacy. To distinguish legitimate punishment from simple violence requires that the sentencing process examines carefully, and is seen to examine carefully, the whole person. As we saw in Chapter 4, sentencing can do little other than individualise the person. Even though there are attempts at ‘taking account’ of the ‘context’ of collective problems, distributive injustices and deprivation, sentencing struggles to do more than acknowledge that ‘social context’. Sentencing can only deal in individual cases one at a time. Thus, humanisation work in sentencing necessitates individualisation: a process which marginalises social explanations and renders the problem as the responsibility of autonomous individuals. It can do little else.

The Triple Burden of Duty of Sentencing Professionals As legal professionals, judges and lawyers have to regard themselves, albeit in varying ways (e.g. Tata 2007a; Mather et al. 2001), as carrying a tripleburden of duty. First, as professionals required ethically and honourably to serve the client and/or the public, they must see their actions and role in the process as justifiable. Secondly, legal professionals are the practical custodians of justice: they work on the application of high principle to the specific case and vice versa. Lawyers, and especially judges, are acutely aware of personal responsibility in sentencing to get the decision right. In variable ways, sentencing professionals employ a range of justificatory frames about the ‘needs of the case’, ‘best interests of the client’; ‘needs of the client’ ‘public service’, ‘duty to the court’ etc. which render the precise professional duty in any given instance ethically indeterminate (Tata 2007a). Nevertheless, the very claim to be a professional necessitates the enactment of personal and individual moral duty. Indeed, they successfully claim considerable honour (Sommerlad 2015); social status and moral elevation (e.g. Bourdieu 1987; Roach Anleu 2009). For judges, sentencing is particularly difficult because, though collaborative (e.g. Tata 2007b), it is also experienced, through the ‘master narrative’ of judicial independence, as a solitary, unavoidable, personal burden, weighing heavily in judicial consciousness (Darbyshire 2011; Jamieson 2018).

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Thirdly, criminal justice professionals (especially those dealing with lower and intermediate court cases) cannot avoid facing the enormous demographic chasm between them and most defendants, and the impact of deprivation, abuse, neglect and addiction. As professionals aware of their direct ability to alleviate the palpable distress of those with whom they come into close proximity everyday, they must justify and account for their actions. Especially in the lower and intermediate courts, judges are confronted daily with a parade of human misery which passes in front of them. As one judge observed in research by Roach Anleu and Mack: If you’ve got any feelings at all, you’re seeing absolute misery passing in front of you day in, day out, month in, month out, year in, year out; you’re seeing women with young kids having to go to jail, you’re seeing young - you know, young men in their mid twenties who ought to be in the absolute prime of their life just raddled by drugs and alcohol and coming into court with terrible injuries from fights and teeth missing, and you see mentally affected people, people who are schizoid and paranoid through overuse of drugs, all of this misery, day in, day out. (Roach Anleu and Mack 2017: 19)

This could present a conflict given that efficient case-disposal is another shared value of professionals.Though not without tension and some degree of competition, sentencing inter-professional relationships are marked by the minimisation of conflict (most especially an evidentially-contested trial), agreement about the facts, and a desire to get through the list with as little effort as possible. Most especially the lower and intermediate courts, are geared to the expectation of guilty pleas as the norm. This means, especially in nominally adversarial systems, that little, if anything, is heard from the defendant. Yet, fairness requires participation and seeing the person punished participating, freely and sincerely choosing to accept the legitimacy of the process. The deliberate infliction of harm and control demands justification, without which it would constitute unjustified violence rather than legitimate punishment. How do sentencing professionals, carrying the triple burden of responsibility, manage to enact what is, by their own cherished standards, a cursory process?

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Most previous research on legal professionals’ self-justification tends to emphasise individual internal dialogue—for example that the case is ‘trivial’; and/or that one is not truly responsible (Tombs and Jagger 2006; Sykes and Matza 1957). Without denying the role of internal selfjustificatory dialogue, the triple weight of responsibility cannot be so easily dismissed, precisely because it is felt so personally by justice professionals. Thus, professionals, especially judges, have to show themselves to be enacting a process which is fair and legitimate. The threat of doubt and uncertainty cannot be fully resolved by an internal dialogue telling oneself that cases are minor, nor that one is not truly responsible. By participating in the enactment of doubt-reducing processes and in witnessing the consequence (freely and sincerely acknowledging their culpability and accepting their own punishment), professionals can see for themselves justice being done. This is where humanisation work is vital to the convincing performance of justice. By being seen to pay close attention to the defendant as more than one of a kind, standardised and processed, but as a unique individual, the sentencing process shows it is fulfilling its ethical and professional demands. It is important that these processes are shown to the sentencing community, so that it has to be seen to be done, performed before and with professionals.

Seeing and Showing Humanisation Being Done These processes of performing humanisation are carried out differently in different jurisdictions (and indeed within them). In nominally inquisitorial countries, this investigation may be conducted from the start as part of the inquiry into the person’s guilt or innocence and culpability (Field 2006, 2018; Hodgson 2006), or by the judge asking the defendant about their life as part of the inquiry about guilt or innocence.1 In nominally adversarial countries, where a two-part trial process of first guilt determination followed by a separate penal stage, this is done through a post-conviction 1 Or

in hybrid systems this may be delegated back-stage to report writers whose report is considered during the guilt-determination phase (Johansen 2018).

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(typically by way of guilty plea) mitigation stage. Humanisation work is often carried out by a pre-sentence report into the personal circumstances of the offender, attitude to the offence and offending, which in turn may inform a plea in mitigation by the defence lawyer. Among scholars and policy groups anxious to bring about a reduction in the use of imprisonment in less serious cases, it is often said that this humanisation work might disrupt the otherwise easy and unthinking disposal of cases (people). By contextualising the offence and humanising the offender, it tends to be assumed that the sentencing judge will come to see the offending as explicable (though not excusable), so rendering imprisonment a more difficult decision (Tata 2018; see also Mair 2016; Morgan 2003; Morgan and Haines 2007; Canton and Dominey 2018). It means that probation work is “a humanising force within the criminal justice system” (Newman and Ugwudike 2014: 202–203) and “practitioners have the potential to reclaim the humanity of offenders” (Newman and Ugwudike 2014: 186). It should prick the consciences of those involved so that punishment is, as Hudson (e.g. 1996: 151) insisted, only inflicted “with a bad conscience”. Thus, humanisation is widely seen as a virtue, correcting what is seen as increasingly de-contextualised and managed sentencing. There is a recurring concern that humanisation is being replaced by standardisation, whether this be the result of the rise of the ‘information age’ (Franko Aas 2005), reductions in legal aid (e.g. Ward 2017), managerialism (e.g. Newman and Ugwudike 2014) or the ‘McDonaldization’ of pre-sentence reports (Robinson 2018). Yet allowing the defendant’s voice also opens the potential for explicit or implicit challenge to the legitimacy, the fairness, of the criminal-penal process. Asking the person awaiting sentencing for her account of her responsibility may open a can of worms. Her account may be ambiguous or at odds with the formal plea; palpably confused; explicitly or implicitly defiant; exculpatory; or tactical in some way (e.g. Jacobson et al. 2015). For the admission to be consistent with legal ideas of a freely participating defendant who willingly admits guilt, the admission has to be seen as free and sincere. It may suggest that the person felt obliged to admit the offence (e.g. to gain liberation from detention; or because of a lack of faith in the court process; to avoid the risk of a

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higher sentence; or voice a strictly legal admission but claim moral innocence). All of these are threatening to the legitimacy of the process: they imply that the free choice to plead guilty may not have been quite so free after all.

How Humanisation Facilitates Efficient Case-Disposal It is commonly assumed that the expeditious disposal of cases (often called ‘efficiency’) is slowed by the humanisation of the person: the less humanisation the quicker and vice versa. Humanisation work may be dismissed as merely ‘ceremonial’ or decorative additions (Hagan et al. 1979; Rosencrance 1988) to the ‘primary’, instrumental task of the expeditious disposal of cases. However, through its transformative case-work, humanisation work enables the expeditious disposal of cases (so-called ‘efficiency’). Court communities can see and participate in the fair process to the individual defendant. While such work may often disrupt the sense of assembly-line justice and give pause for thought, equally this displayed humanisation work tends to affirm, rather than disrupt, the sense of fairness of the professional sentencing community. By “reclaiming the humanity of offenders” (Newman and Ugwudike 2014: 186), by showing compassion and concern smooth case disposal is achieved and accelerated. Three brief illustrations serve to exemplify how in fact humanisation work tends generally to facilitate, rather than disrupt, expeditious case disposal. First, the plea in mitigation of defence lawyers is assisted and informed by pre-sentence reports which provide invaluable information and context. Some judges may even say that they do not need to hear a lengthy plea-in-mitigation as they have the report in front of them. Second, for busy defence lawyers juggling high case-loads it can help to smooth client-contact and rapport. Defence lawyers can rely on individual pre-sentence investigations and reports to gain valuable information about the client to put to the court and develop rapport with a client. Defence lawyers can themselves harvest the commercial value of such individual inquiries and report about the background of the individual, and their role in reassuring the client and so her lawyer that the client is being treated humanely as an individual. Elsewhere (Tata 2019: 130–131), I

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describe how in some defence firms, lawyers ‘remember’ the unique details of clients’ lives (ironically described below as ‘run of the mill routine data’) via a client database. Here a defence lawyers explains the win-win value of: A bit of rapport. Most clients actually, the complaint they have when they see someone who they haven’t seen before is that, ‘you don’t know my case.’ […] We keep the [pre-sentence] reports and we store them on a database […] And it’s extremely helpful when a client comes in and you haven’t seen the client for a year […]. We can withdraw the […] report and in two minutes flat, you have a full history of your client and you can then speak to the client on the basis that – ‘How’s your child getting on? How’s this, that, the next thing? How are you getting on?’ So you know exactly what the client history is. Everybody in the office actually has a very full and detailed picture of the client and you get it - it’s just immediate. […] If I’m sending a lawyer to a prison and the lawyer’s not seen the client before, he gets an old […] report. By the time he hits the prison, he can speak to this client as if he’s known him for a hundred years and he can also speak to the client in the sense that the client recognises that this lawyer has shown an interest: ‘this [lawyer] knows about me’.[…] And most reports are quite exceptional when it comes to recording that information. […] It makes an immense [difference to] the client actually: you also enhance his esteem.

Here, then, the person has been shown to the defence lawyer as having been respected as a unique individual who, rather than feeling degraded by the indifference of a mechanical system, has had his/her esteem enhanced by its individualisation. Happily, this is thought to mean greater co-operation and satisfaction: reconciling the seemingly antithetical values of humanity and efficiency. While it might be easy to dismiss this as some of kind of client relations stunt or confidence trick (e.g. Blumberg 1967; McConville et al. 1994; Marsh and McConville 2014; Newman 2012), it is, as the lawyer points out, also enhancing the person’s self-esteem. Being treated as an individual who matters, listened to, showing that the lawyer is on the client’s side are all critical values on which criminal clients rely to judge the quality of their lawyers (e.g. Goriely et al. 2001; Tata 2007a). The humanisation work of Report processes can also assist in expediting cases in a third way: managing client expectations. It places the onus of the

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opportunity on the defendant. Defence lawyers are expected to ‘manage’ their clients, playing the role of ‘double-agent’ both in service of the client and as an ‘officer’ of the court with a duty to the court and its smooth operation. Defendants may be subtly told ‘this is your chance and your responsibility to win over the report writer and get a favourable sentence.’ For example, elsewhere (Tata 2019) I discuss how defence lawyers may have to convey certain messages to the defendant voicing their view of an offence to the a pre-sentence report writer. As one defence lawyer explains: I would say to the client, “this is a chance for you to sell yourself ”, you know, after the crime committed and if the client then doesn’t take that opportunity and comes back and it’s a bad Report then you will say, ‘well, you know, that’s what’s happened […].’ Normally I would be quite pessimistic with clients in terms of what was going to happen to them because it’s an easier tool of dealing with the client. Thereafter, if something bad does happen, and you say, ‘well, look, you were advised of it.

How Humanisation Work Aids the Manifestation of the Sincere Acceptance of Punishment Van Oorschot et al. (2017: 15) explain “the catch-22 situation” which such defendants face. On the one hand, defendants are required “to ‘tell their story’ and give a causal and temporal account of what happened, [yet on the other hand] defendants must simultaneously ‘take responsibility’ [for the offence], which gesture is part and parcel of their performance of remorse…” (Van Oorshot et al. 2017: 2). In doing so, in being given this opportunity to tell her story, it is explained that a flat denial or contradictory account will reflect badly on her. To gain any mitigation, she has to ‘own’ the offence, accepting fully, freely and sincerely her responsibility. Accounts which appear to contradict the formal admission of guilt obstruct the ability to dispose of each case efficiently. Moreover, where they appear to be given cynically as a way of playing the system, they are likely to irritate professionals. As problematic is the appearance of passive disengagement by the person in which she does not appear even to try to perform any display of interest, or affect. Van Oorschot et al. (2017) notes

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the anger which such apparent displays of insouciance can generate. Court actors tend to note of such defendants that ‘he was just sitting there.’ It can look as if the legitimacy of the court is not recognised, even regarded with contempt (Weisman 2014). The knowledge of humanisation work and its display affirms fairness. Rather than inflicting violence on a resistant subject who in some way (whether implicitly or explicitly) denies full culpability, the work of humanisation yields a voice which tends to accept punishment. What can be a more convincing confirmation of fair process than the person who is to be sentenced to be seen to accept its fairness and that punishment is deserved? It quells potential doubts about the fairness of the court’s power to harm in a procedure that may otherwise appear to be too perfunctory. Through pre-sentencing humanisation work, the person’s admission of culpability presents the court with vivid confirmation of the legitimacy of its own violence. In a system which holds strongly to the assumption that individuals know and act in their own best interests, nothing can be more validating than to hear the person, ideally in their own words and with feeling (Rossmanith 2015), articulating their acceptance of culpability and impending punishment. Sentencing practitioners are thus absolved of the struggle and uncertainty about whether the harm of punishment is justified because the defendant is shown to accept it as just (Tata 2019). Humanisation work can transform cases in four ways, so that the person is shown to accept freely and sincerely her own guilt and individual culpability. First, by being seen to listen to the defendant’s voice, possible concerns among professionals about rushing the case and not treating the person as a human being are assuaged. The person is seen to have shared her life story. Secondly, by being seen to take account of it in case after case, the significance of social disadvantage is, as we have seen in Chapter 4, minimised. Stories of deprivation and disadvantage are so normal among the cohort of defendants to be unremarkable. Thirdly, in both its anticipation and practices, humanisation work tends to neutralise signs of resistance, converting them to signs of acceptance, and ideally remorse. Discordant narratives of denial may be massaged in the humanisation process. Pre-Sentence Report writers and defence lawyers tend to look out for such accounts which are inconsistent with the formal plea of guilt.

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Inconsistencies raise doubts about the fairness of the process and are embarrassing for all concerned. Lawyers tend to dissuade clients from offering an account at odds with their formal admission of guilt. Fourthly, humanisation work transforms the defendant into a punishable offender. By reminding the person of the risk of an adverse sentence as well as the wider pains of the process (e.g. Cheng et al. 2018; Feeley 1979), the presentation of the person in the humanisation work of reports and pleas in mitigation tends to minimise her manifest denial or cynicism. Defendant docility or ‘passive acceptance’ (Jacobson et al. 2015) is transformed into a display of active acceptance; in pre-sentence reports defendant confusion tends to be converted into autonomy and awareness. This is because humanisation work requires both the person to voice ‘what happened’ and to perform the appropriate and sincere bearing of guilt (ideally remorse).

The Role of Remorse and Legitimacy in Professional Work Scholarship has debated whether or not, and if so how, remorse (or related feelings of regret, shame, etc.) should influence sentencing (e.g. Bandes 2015; Maslen 2015; Proeve and Tudor 2010). Much of this questions whether or not courts and other decision-making bodies (e.g. parole boards) can know whether remorse is genuine or tactical; whether it does make it less likely that someone will reoffend; as well as problems of proportionality, and how readings of remorse may be refracted through categories of social difference and inequality. Yet despite these problems which appellate courts also note, it seems that decision-makers remain fixated on looking for signs of genuine or fake remorse (Weisman 2014). Why is this? One answer to this conundrum might be to reiterate the logical and empirical flaws of that search and suggest that the decisionmakers are being irrational (e.g. Bandes 2015; Roberts). However, there may be another explanation for why decision-makers are ineluctably enthralled with the search for signs of remorse. Remorse is perhaps the ultimate expression of the acceptance of responsibility. It shows (alongside shame, regret etc.) that the person recognises her true individual moral culpability and the legitimacy of the impending punishment. Indeed, the remorseful person is seen to consent, even will the violence of her

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own punishment. It is the best exemplar that the court not only has the right, but is right, to punish. Just as passive disengagement or overt denial of the legitimacy of the court are challenging and cannot be accepted (Van Oorschot et al. 2017; Weisman 2014), so full and complete acceptance can be taken as an oblique compliment to the process and those who constitute it: the person’s submission offers the ultimate declaration of fairness. On the other hand, outright denial, inconsistent or insincere admissions of guilt are tantamount to challenging the court’s legitimacy. Only in this way can the professional sentencing community really believe in the claimed remorse, that its signs show sincerity (Rossmanith 2015). The appropriate performance of remorse, demonstrated and sensed collectively can be a powerful generator of communal professional solidarity. It shows confirmation of the fairness of the process. However, remorse must be appropriately expressed. Paradoxically, sentencing professionals are unable to know for sure whether or not the expressed remorse is ‘real’ (Bandes 2015), or if they are being ‘played’ by the defendant. Doubt about the authenticity of remorse is unavoidable, precisely because professionals know that the defendant is faced with the court’s power. Ironically, this frequently lingering doubt is a direct consequence of the practices of the sentencing community itself. The person is encouraged to give an (early) admission of guilt through the promise of mitigation and the offer of a range of potential benefits. Yet the availability of those potential benefits necessarily yields doubt whether that admission is really free and sincere (Weisman 2009, 2014). We have seen that in reality the defendant is implicitly encouraged to anticipate the future consequences of a decision (e.g. plea) and her posture about that plea. This requirement to shuttle back and forth in time is crucial, and to which we now turn.

3

How Inter-professional Disconnections Generate Ideal Clientele

In the academic and practice literatures, why is so little attention given to the consequences which humanisation work can have for the plea? Likewise, why in the work of and literature about the implementation of the sentence is there an equal disinterest in the circumstances in which the

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formal plea is made? Instead, each professional field appears blind to the work of the other. Formally, the two fields of ‘the law’ and ‘the therapeutic’ are separate. ‘The law’ (populated by judges and lawyers) is responsible for the circumstances up to conviction and sentence. The ‘therapeutic’ (populated by probation officers, social workers, psychologists, prison managers etc.) is formally responsible for the implementation of the sentence. Informally, the prospects of sentence implementation influence decisions about how to plead and the person’s self-presentation. The person has to weigh up whether she will be considered ‘suitable’ for a community sentence or prison programmes which will help her to gain conditional release (e.g. parole) if she is thought to be ‘in denial’ or minimising her culpability. Likewise, how the sentence is implemented is influenced by the reading of the nature of the conviction and the person’s culpability (e.g. Hall 2016; Schinkel 2014). Probation, prison and other personnel implementing the sentence must monitor the person’s cooperativeness and willingness to change. This directly shapes the person’s anticipated experience of the pains of punishment, including its form, intensity and duration; and the subjective experience of its ‘tightness, depth and weight’ (Crewe 2011). Informally, in the way that the defendant has to present herself, the legal question of plea and the therapeutic question of sentence-implementation mesh and operate symbiotically. Together they generate the display of closed guilty pleas and the presentation of acceptance and voluntary consent by the individual to her own punishment. The one operating in isolation from the other would be far less productive in generating ideal, culpable offenders shown to accept responsibility and the legitimacy of the punishment. Humanisation (including therapeutic and rehabilitative work) requires people who do not contest their true responsibility for their offending because only then can they be deemed suitable to be ‘worked with’ to achieve personal, internal transformation. So it is, for example, that the defendant who denies the charges is encouraged to place herself in the adverse position of having been convicted after an evidentially-contested trial. The defendant who pleads guilty but reserves a more ambiguous position for the sentencing stage is invited to anticipate the negative impression her stance will give to the court considering a rehabilitative sentence (e.g. probation or for for rehabilitative programmes in prison) to someone who is ‘in denial’. Defence lawyers may need to point this out to the defendant:

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In certain circumstances if […in] a difficult [guilty] plea whereby […] and you were sure in your own mind that the client was guilty of some sort of offence, but the client wasn’t so sure, […] and [after discussion] the client had […] instructed you to plead guilty then […] I would say to them, “if you say to the social worker [writing the pre-sentence report] you didn’t do this or you’re innocent then that will cause you problems and it’ll cause me problems.”’ [Interview, defence lawyer, Tata 2019]

So the defendant has, and is tacitly encouraged, to place herself in the position of being convicted after an evidentially-contested trial, or pleading guilty but maintaining an ambiguous position, as opposed to a wholehearted admission of guilt. She has to fast-forward in time to imagine herself and the likely sentence premium or discount, of being in prison, applying for parole, or, the difficulty in having to ‘work with’ rehabilitation services or therapeutic interventions. The defendant must, therefore, mentally traverse the professional disciplinary boundaries. On the one hand, it is explained (for example by defence lawyers) that if innocence continues to be professed even after conviction at trial, the sentence will be inflated. Mitigation and the humanising opportunity of individualisation will be lost and she can expect to be portrayed in a poor light. If, after conviction at trial she chooses to take up the opportunity of humanisation and mitigation by recognising her guilt, she can expect to be seen as a chancer, who cynically wasted the court’s time.

3.1

Temporal Separation?

In response to the observation that legal and humanisation (therapeutic) processes, through their anticipation and promise, transform criminal cases and achieve closed convictions it may be said that this is a misunderstanding about the separate temporal moments of legal and humanisation process. For example, a guilty plea, it may be countered, occurs prior to any work to reduce reoffending. However, this claim of temporal separation is reflective of a quasi-formalist view of criminal process as a system akin to a flow-chart with a clear, unidirectional flow, which presents a misleading picture:

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rather than a turbulent, jammed-up, multi-level and multi-directional flow. [In the flow chart] it appears that each decision point is one of a series of logical and punctuated series of decisions within this system and its composite various subsystems. It is organized from the perspective of the institution, not of the citizens who are subject to these processes. (Manning 2003: 608)

Yet, such separation of a ‘punctuated series of decisions’ cannot be so for the defendant. The defendant has to consider the consequences of her plea in terms of humanisation work. Often prompted by her defence lawyer, she must transport herself forward in time to forecast how things would be if she maintains a denial or ambiguous position about responsibility, before shuttling back in time to the present. This is a forecast for which only she takes responsibility because the professions responsible for sentencing and the professions responsible for the implementation of that sentence have to turn a blind eye to any cross-contamination between each other’s work. Officially, choice as to how to plead must be free (and be seen to be free), and the legal process must deny contamination by post-sentence (e.g. therapeutic or humanisation) considerations. Likewise, the humanising, therapeutic work of sentence-implementation in community penalties or the rehabilitation that may be promised during a prison sentence, should not seek to unearth the dynamics of that choice. Guilt must be taken as a given and indisputable fact (e.g. Weisman 2014), even if, in the absence of reliable information, the account of offending may be transformed into something different during the implementation of the sentence (e.g. Hall 2016). Intriguingly, in several jurisdictions, information about the sentence and the judge’s reasons for it are not routinely provided to defendants nor even those expected to implement the intentions of the sentencer (Field 2018; Hall 2016; Schinkel 2014). Thus, the promise of an individuallytailored sentence with the opportunity of rehabilitation is disabled by the lack of information passed onto the authorities required to implement the court’s intention. The personal change required of the offender to show that they have rehabilitated themselves (and so cease being a client of criminal justice) is hampered by this disconnection and lack of information (Schinkel 2014). The processes reproduce their own clientele.

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Criminal court proceedings prior to the determination of conviction or acquittal, must, at least in any formal and public sense, be seen to be blind to the promises of individualisation, help, humanisation, leniency. Likewise therapeutic/rehabilitation professionals must be seen to be blind to the contingencies of criminal court proceedings. Despite their intimate symbiotic inter-dependence each must largely ignore and have little or no interest in the dynamics of the detailed work of the other. Both must be indifferent to how the realignment in the person’s posture towards her culpability is achieved. So too academic-vocational disciplines underpinning these professions tend to operate in silos, which means that almost no attention is paid to the interfaces between the work of different professions.

3.2

Mutual Blindness

Professions rely on a claim to abstract, esoteric academic theory to justify their ownership of certain work, whose parameters they define in contradistinction to another profession. The disinterest of each profession (law on the one hand, and probation and the rehabilitative/therapeutic professions on the other) in the detailed, substantive work of the other enables the transformative work of humanisation to be conducted under the radar, backstage, delegated, outside and beyond any formal professional accountability. This is because the transformational effects are the result of the poorly-connected interface between the work of the two professions. It is precisely the disjuncture, or dysfunctional and weak inter-connection, the way in which the professional worlds appear alien to each other, that means that the required shuttling of the defendant is rendered invisible to any formal process. There is no formal way of recording and making this synergy officially visible. Despite their intimate inter-dependence, one might regard this mutual blindness as simply reflective of academic silos: plea decision-making is the province of legal work in criminal proceedings, whereas humanisation and therapeutic endeavour is the province of social work, and the psy sciences.

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However, that formal separation should not simply be dismissed some random lacuna without material consequence. Each professional field is aware of the work of the other, but defers to the other’s expertise. This inter-professional blindness to the substantive work of the other means that their symbiotic work is rendered invisible to the formal process. The disconnection between the two fields reflects and perpetuates the alienation of one field from another, sustained by the academic boundaries which intellectually legitimate them. So, it is for this reason that legal scholarship and training holds that the specifics of post-conviction work with offenders to be of little relevance to the work of law and lawyers. Likewise, probation scholarship or other academic literature and professional training courses barely consider the decision to plead, but taking it as a given legal matter, similarly foreign and alien.2 Rather than seeing humanisation work as a way of obstructing punitiveness, we can also see it is as a way of achieving unambiguous admissions of guilt, converting the defendant from a defiant, contradictory or confused posture into one who freely accepts their own culpability. Humanisation work does seem to prick the conscience of the judge and others, but in generating that information it also seems to achieve the smooth and expeditious throughput of cases, heading-off potential professional qualms about the fairness of the process, and transforming the ambiguous culpability of a person into an ideal culpable offender, who does not resist, but seems to accept their own inevitable punishment. Thus, we should revisit any simple notion that humanisation straightforwardly obstructs system ‘efficiency’ and opposes punitiveness. It has a janus-faced quality.

Sovereign and Disciplinary Powers: A Symbiotic Relationship? If this argument holds merit, it suggests that the arguable tendency of Foucault to assert that disciplinary power (e.g. of therapeutic practices) is 2This sense of foreignness of two alien separate professional and academic worlds, may also be reflected in a key research gap. Unlike civil cases (e.g. Genn 1999; Genn and Paterson 2001 and), and despite all the policy endeavours based on assumptions of what defendants think and how they decide, there has been no research anywhere to follow through the experiences of defendants in observed cases from prior to plea through to the completion of the sentence.

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replacing the command-based sovereignty of formal law can be developed and finessed. It is not so much that law is becoming less important, but that formal legal processes and disciplinary power at one and the same time ignore each other’s practices, and so work symbiotically to normalise cases. To achieve this and despite their mutual dependence and complex interaction, law and disciplinary power must each largely ignore and treat as alien the substantive work of the other. As Hunt and Wickham (1994: 65) insist, rather than counter-posing disciplinary power and law: [D]isciplinary power is not opposed to law, but rather that law has been a primary agent of new modalities of power, law constitutes distinctive features of their mode of operation.

Rather than counterposing formal law (sovereign command power) and disciplinary power, law and the disciplinary power of therapeutic field operate symbiotically in a complex of informal, micro interactions. The legal world of plea and the passing of sentence depend on the work of disciplinary professions (humanising, promising rehabilitation and therapy) to manifest voluntary admissions of guilt and acceptance of punishment. Likewise, the work of humanisation, community penalties, rehabilitation, etc. demands a clientele which is seen to have accepted its criminal responsibility and its deserved punishment. Through the lack of any joined-up system, ideal criminal clientele, ideal offenders, are recycled and cultivated. The person has mentally to traverse professional borders and the formal temporal order of the process to anticipate likely consequences. But each profession must ignore the contingencies of decision-making of the other—they must take it as a given, and be blind to the detailed work of the other profession. The criminal justice process tends to cultivate its own clientele, without any plan, deliberation nor a controlling mind. Importantly, the cultivation of criminal clientele, of ‘ideal’ culpable offenders, is not a ‘conspiracy’—there is no thought-out deliberation. The criminal justice ‘system’ is acephalous—there is no head, chief or anyone responsible, no plan. Indeed, it is precisely the absence of any controlling mind, the absence of any coherent and cohesive system, which makes it so effective in reproducing its clientele.

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Conclusions

In the performance of humanisation the sentencing community shows humanisation to itself. The sentencing community acknowledges and participates in the confirmation that the defendant has been treated fairly, allowed to participate and voice her story. By participating in the enactment of humanisation, and in witnessing the defendant’s free and sincere admission of responsibility and fairness of her own inevitable punishment, professional sentencing communities are able to see and feel justice being done (e.g. Rossmanith 2015). The disjuncture between different professional realms and their mutual blindness means that the person sentenced has mentally to travel and anticipate the implications. Through the lack of any joined system, ideal criminal clientele, ideal offenders, are cultivated. By dividing up the person’s experience of the process as the exclusive responsibility of individual professional dominions (properties of different autonomous individual professions), the person faces disjunctures in the process. The effect of this is that she alone has to traverse professional borders and the seemingly linear temporal order of the process so as to anticipate likely consequences. Yet each profession must be seen to ignore the contingencies of decisionmaking of the other—they must take it as fact and be blind to the detailed work of the other profession. Without any systemic master plan or controlling mind, this collective work helps to generate ideal offenders—indeed precisely because of the absence of any coherent system.

References Bandes, S. (2015). Remorse and Criminal. Justice Emotion Review, 8(1), 14–19. Beyens, K., & Scheirs, V. (2010). Encounters of a Different Kind: Social Enquiry and Sentencing in Belgium. Punishment & Society, 12( 3), 309–328. Blumberg, A. (1967). The Practice of Law as Confidence Game: Organizational Cooptation of a Profession. Law & Society Review, 1(2), 15–40. Bourdieu, P. (1987). The Force of Law: Towards a Sociology of the Juridical Field. Hastings Law Journal, 38, 814–853. Canton, R., & Dominey, V. (2018). Probation. London: Routledge.

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Cheng, K., Chui, W., Young, S., & Ong, R. (2018). Why Do Criminal Trials ‘Crack’? An Investigation into Late Guilty Pleas in Hong Kong. Asian Journal of Comparative Law, 13(1), 1–25. Crewe, B. (2011). Depth, Weight, Tightness: Revisiting the Pains of Imprisonment. Punishment & Society, 13(5), 509–529. Darbyshire, P. (2011). Sitting in Judgement: The Working Lives of Judges. Oxford: Hart Publishing. Feeley, M. (1979). The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage. Field, S. (2006). State, Citizen and Character in the French Criminal Process. Journal of Law & Society, 33(4), 522–546. Field, S. (2018). “Ritual Individualisation” and French Criminal Justice: Preliminary Comparative Observations. Paper presented to the Law & Society Association, Toronto. Franko Aas, K. (2005). Sentencing in the Age of Information. London: Glasshouse Press. Genn, H. (1999). Paths to Justice. Oxford: Hart Bloomsbury. Genn, H., & Paterson, A. (2001). Paths to Justice Scotland. Oxford: Hart Bloomsbury. Goriely, T., Duff, P., Henry, A., Lancaster, B., McCrone, P., & Tata, C. (2001). The Public Defence Solicitors’ Office: Report of an Independent Evaluation. Edinburgh: TSO. Hagan, J., Hewitt, J., & Alwin, D. (1979). Ceremonial Justice. Social Forces, 58(2), 506–527. Hall, M. (2016). The Lived Sentence: Rethinking Sentencing, Risk and Rehabilitation. London: Palgrave Macmillan. Hodgson, J. (2006). Conceptions of the Trial in Inquisitorial and Adversarial Procedure. In A. Duff, S. Farmer, & V. T. Marshall (Eds.), The Trial on Trial: Calling to Account (Vol. 2, pp. 223–242). Oxford: Hart Publishing. Hudson, B. (1996). Understanding Justice. Buckingham: Open University Press. Hunt, A., & Wickham, G. (1994). Foucault and Law: Towards a Sociology of Law as Governance. London: Pluto Press. Jacobson, J., Hunter, G., & Kirby, A. (2015). Inside Crown Court. Basingstoke: Palgrave Macmillan. Jamieson, F. (2018). Judicial Independence: The Master Narrative (Edinburgh School of Law Research Paper Series 2018/03 [SSRN]). University of Edinburgh.

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Johansen, L. (2018). “Impressed” by Feelings-How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms. Social & Legal Studies, 28(2), 250–269. Mair, G. (2016). What Is the Impact of Probation in Advising Sentencing and Promoting Community Sanctions and Measures? In F. McNeill, I. Durnescu, & R. Butter (Eds.), Probation: 12 Essential Questions (pp. 61–83). Cham: Springer. Manning, P. (2003). The Legal Institution. In L. Reynolds & N. HermanKinney (Eds.), Handbook of Symbolic Interactionism (pp. 601–623). Lanham: AltaMira Press. Marsh, L., & McConvile, M. (2014). Criminal Judges: Legitimacy, Courts and State-Induced Guilty Pleas in Britain. Cheltenham: Edward Elgar. Maslen, H. (2015). Remorse, Penal Theory and Sentencing Oxford: Oxford University Press. Mather, L., McEwen, C., & Maiman, R. (2001). Divorce Lawyers at Work: Varieties of Professionalism in Practice. Oxford: Oxford University Press. McConville, M., Hodgson, J., Bridges, L., & Pavlovic, A. (1994). Standing Accused. Oxford: Clarendon Press. Morgan, R. (2003). Thinking About the Demand for Probation Services. Probation Journal, 50 (1), 7–19. Morgan, R., & Haines, K. (2007). Services Before Trial and Sentence. In L. Gelsthorpe & R. Morgan (Eds.), Handbook of Probation (pp. 182–209). Cullompton: Willan. Newman, D. (2012). Still Standing Accused: Addressing the Gap Between Work and Talk in Firms of Criminal Defence Lawyers. International Journal of the Legal Profession, 19 (1), 3–27. Newman, D., & Ugwudike, P. (2014). Defence Lawyers and Probation Officers: Offenders’ Allies or Adversaries? International Journal of the Legal Profession, 20 (2), 183–207. Proeve, M., & Tudor, S. (2010). Remorse: Psychological and Jurisprudential Perspectives. Farnham: Ashgate. Roach Anleu, S. (2009). Law and Social Change. London: Sage. Roach Anleu, S., & Mack, K. (2001). Pleading Guilty and Professional Relations in Australia. The Justice System Journal, 22(2), 155–184. Roach Anleu, S., & Mack, K. (2017). Performing Judicial Authority in the Lower Courts. Basingstoke and New York: Palgrave Macmillan. Robinson, G. (2018). Delivering McJustice? The Probation Factory at the Magistrates Court. Criminology & Criminal Justice. Advance Accessed 23 July.

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Rosencrance, J. (1988). Maintaining the Myth of Individualised Justice. Justice Quarterly, 5 (2), 235–256. Rossmanith, K. (2015). Affect and the Judicial Assessment of Offenders. Body & Society, 21(2), 167–193. Schinkel, M. (2014). Being Imprisoned. London: Palgrave. Sommerlad, H. (2015). The “Social Magic” of Merit: Diversity, Equity, and Inclusion in the English and Welsh Legal Profession. Fordham Law Review, 83(5), 2325–2347. Sykes, G., & Matza, D. (1957). Techniques of Neutralization: A Theory of Delinquency. American Sociological Review, 22(6), 664–670. Tata, C. (2007a). In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and ‘Ethical Indeterminacy’ in Criminal Defence Work. Journal of Law & Society, 34 (4), 489–519. Tata, C. (2007b). Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process. Social & Legal Studies, 16 (3), 425–447. Tata, C. (2018). Reducing Prison Sentencing through Pre-sentence Reports? Why the Quasi-Market Logic of “Selling Alternatives to Custody” Fails. Howard Journal of Crime & Justice, 57 (4), 472–494. Tata, C. (2019). “Ritual Individulization”: Creative Genius at Conviction, Mitigation and Sentencing. Journal of Law & Society, 46 (1), 112–140. Tombs, J., & Jagger, E. (2006). Denying Responsibility: Sentencers’ Accounts of Their Decisions to Imprison. British Journal of Criminology, 46 (5), 803–821. Van Oorschot, I., Manscini, P., & Weenink, D. (2017). Remorse in Context(s). Social and Legal Studies, 25 (3), 359–377. Ward, J. (2017). Transforming Summary Justice: Modernisation in the Lower Courts. London: Routledge. Weisman, R. (2009). Being and Doing: The Judicial Use of Remorse to Construct Character and Community. Social & Legal Studies, 18(1), 47–69. Weisman, R. (2014). Remorse: Law and the Social Control of Emotion. Burlington: Ashgate.

6 The Rise of Technology and the Demise of the Sentencing Professions?

Abstract This chapter explores the impact of technology on sentencing. How is the changing character of technology, including how it may be changing the nature of sentencing work? Is it threatening the discretion, and diminishing status of the sentencing professions. Drawing on illustrations from research on the use of information technology to aid the sentencing decision process, the chapter assesses three specific questions: (1) Are techno-rational instruments reducing sentencing discretion and professional autonomy? (2) Are sentencing technologies reducing concern with the whole individual to decontextualized collations of data ? (3) Are judges and other penal decision-makers becoming the consumers of information rather than their creators? Reporting and assessing the evidence about the use of sentencing technology, the chapter reveals that the claim that technology is diminishing sentencing discretion is based in assumed autonomous individualism. Keywords Sentencing reform · Judicial discretion · Judicial independence · Sentencing Information System · Punishment and technology

© The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_6

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A Map of Chapter Six This chapter proceeds as follows. Section 1 observes it is widely said that the role of managerial logic is leading to de-skilling, de-professionalisation and diminution in discretion. The final bastion of unfettered discretion, judicial sentencing, is under attack and being diminished by techno-rational logics. This is exemplified by two developments: sentencing guidelines and computerised Sentencing Information Systems (SIS). Section 2 outlines the the genesis and development of the SIS in Scotland seen as exemplifying how technology is leading to the demise of judicial discretion. Section 3 assesses what the SIS signifies. Identifying the assumptions of autonomous individualism shared by the normatively opposed new penology-inspired literature and legal-rational tradition, Sect. 4 reveals that they rely on an asocial understanding of the judge, a formalistic view of rules, and a positivistic conception of information.

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Technology and the Demise of Professional Discretion?

Several significant works regard changes in sentencing policy and discourse as indicative of broader penal change—specifically managerialism, actuarial justice, new penology (e.g. Feeley and Simon 1992, 1994; Garland 2001). However, Katja Franko Aas’ acclaimed Sentencing in the Age of Information is the leading argument dedicating its focus to judicial sentencing practices.1 Beautifully written, Sentencing in the Age of Information is widely cited as evidencing that information technology is impacting upon sentencing practices in specific ways. According to Franko Aas (2004, 2005) sentencing practice is being explicated and standardised, while judicial discretion is being diminished and judges are losing status and control. A central focus of the book is “a general trend towards the ‘de-skilling’ of the role of the judge” 1 For

example, Sentencing in the Age of Information has been awarded prizes by the American Society of Criminology and UK Hart / Socio-Legal Studies Association Main Book Prize (2006). In his endorsement of the book, Jonathan Simon, who jointly advanced the ‘new penology’, describes the work as making ‘significant contributions to our understanding of sentencing and contemporary penality more generally.’

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(Perry 2007: 422). This argument parallels that made in other areas of a de-skilling, de-professionalisation and a diminution of judgement by criminal justice professionals, notably probation officers (e.g. May and Annison 1998; Robinson 2017, 2018), but also others such as defence lawyers (e.g. Newman 2016; Welsh and Howard 2018). Exemplified by the diminution of professional discretion, professionals are reported to be increasingly subject to managerial forms of control including regulation, scrutiny, targets, and, most notably, the requirement to use technologies to ‘aid’ expert judgement. These can threaten the discretion of professional judgement, a trend widely noted in the move from ‘street-level to system-level bureaucracies’ (Bovens and Zouridis 2002) and in the much-cited impact which technology is predicted to have on the professions (e.g. Susskind and Susskind 2015). The introduction of riskassessment tools in social work, probation and parole may be seen by their promoters as a valuable aid to more rational and evidenced-based decisionmaking (e.g. Bagaric and Wolf 2018; Chiao 2018; Hutton 1995). Others identify a more sinister character with the replacement of human and humane, contextualised professional discretion with the unaccountable technocracy of supposedly neutral data managers (e.g. Franko Aas 2004; Feeley and Simon 1992, 1994; Hannah-Moffat 2018; Tombs 2008). So we see the same debates played out about the relative merits of: rules versus discretion; art versus science; machine versus human that we saw in Chapter 2 are the staples of the battle between the legal-rational and judicial-defensive traditions. While the reported trends towards the techno-rational control of professional decision-making have been identified and debated in the work of sentencing professionals, it is only relatively recently that they have been identified in the work of judicial sentencers. Given that sentencing is widely regarded as the touchstone of professional judgement and the virility symbol of judicial independence, the import of such trends bear a significance beyond judicial sentencing itself. In contrast to other areas of law, Hutton (1995) claims, sentencing remains in, Weberian terms, ‘substantively irrational’. Rather than systematised and explicated, it is essentially determined by individual judgement. As perhaps the ultimate exemplar of resistance to the march of techno-rationality, the demise of

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judicial discretion in sentencing would signify not only a major shift in sentencing, but also a step-change in the wider trend towards legal-rationality in western law and society. Where once judicial sentencers were concerned with unique individuals, Franko Aas (2004, 2005) observes, they are increasingly being compelled to base their judgements on actuarial logic. One of the most important drivers of this change is the rise of information technology. Judicial sentencing is, she reports, following the demands and rationalities of the technology. In this vision, managerial technologies have an insatiable appetite for data, the imposition of uniformity for its own sake, tolerating no dissent or creativity, unable to accept, even hostile to, the concept of wisdom, regarding defendants as no more than composites of abstract data to be managed (e.g. Franko Aas 2005). The anomalous, maverick sentencing judge may not have been perfect, the argument goes, but his2 sentencing discretion is increasingly being replaced by the imposition of impersonal data. All of this is leading towards a radically reduced and one-dimensional conception of justice about which we should be deeply concerned. Drawing on views of Norwegian judges’ about discretion as well as policy developments, she reports that hitherto sentencing had been concerned about doing substantive justice in individual cases. However, this is now being replaced by a concern with techno-rational requirements. Following Franko Aas, Tombs (2008) argues that judicial discretion in Scotland is increasingly restricted and sentencing is increasingly dominated by risk technologies and managerial control. Tombs (2008: 88) specifically identifies the Scottish SIS (together with sentencing guidelines, risk assessment forms, and national standards for the writing of pre-sentence reports) as the: new forms of accountability [whereby] the professional judgement of sentencers to pass sentences open to the peculiarities of specific cases is to be informed by formulaic devices generated by statistical probabilities as they relate to whole classes of crimes and offenders.

2I

use the male gender here deliberately, as the idea of the judge as male is part of this personalised, patrician portrait.

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Both Franko Aas (2005) and Tombs (2008) appear to suppose that the Scottish SIS is a technology imposed upon judicial sentencers which diminishes judicial discretion and status, so restricting the ability to attend to individual circumstances. This is seen as symptomatic of a general and insidious trend in which ‘imaginative sentencing’ has been ‘suppressed and supplanted’ by: imaginary penalities which are not being open to the peculiarities of specific cases, but rather are pre-directed at a closure engineered by diverse (often opposed) bureaucratic rules designed not for doing justice but for controlling risk. (Tombs 2008: 85–86)

These arguments are widely noted as key evidence in a range of scholarly literature observing a profound shift towards technocratic justice (Hall and Rossmanith 2015; Phillips 2017). In his preface to Franko Aas’ Sentencing in the Age of Information, Nils Christie contrasts ‘the old fashioned judge’ who slowly ‘builds up a story…the creation of a piece of art.’ Today, all these problems are to be solved through the modern trend of using sentencing tables and statistical information….These pre-determined forms will capture the judge and eliminate discretion.

Perry (2007: 423) suggests that open penological debate is now being drowned out by the spurious rationality of ‘clean’ technologies: Aas shows at length how the old debates among retributivists, rehabilitationists and deterrence theorists are now all but in-audible behind the white noise of the Sentencing Information Systems whirring on the hard drive.

To assess these reported changes, I will first briefly outline the SIS project which ran for eleven years, and then reflect on what this means for the arguments of Franko Aas (2004), Tombs (2008) and others. Doing so is important also because the apparently profound shift in sentencing, exemplified by the SIS, is used in arguments of the judicial-defensive tradition (e.g. Brown 2017).

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Alongside the well-documented problems of the US Federal Sentencing Guidelines, Franko Aas’ Sentencing in the Age of Information presents the Scottish SIS as its key evidence of a fundamental and marked shift not only in the discourse around sentencing policy, but in sentencing practice itself. In drawing these conclusions, Franko Aas (2005) does not examine the impact directly, but rather deploys passages from my work reporting on the development of the Scottish SIS.

2

The Genesis and Development of the Sentencing Information System

In 1993, academics at Strathclyde University Law School were approached by the senior judiciary in Scotland. Having returned from a conference in Australia, Scotland’s second most senior judge, the Lord Justice Clerk, Lord Ross, was particularly interested in the possibility of developing a database of previous sentencing decisions in similar cases. He had seen a demonstration of an information system which had been introduced in New South Wales, Australia. He and his colleagues (including the most senior judge, the Lord President/Lord Justice General, at that time Lord Hope) were interested in the possibility of developing a SIS for the High Court in Scotland. A government-funded feasibility study was conducted in which a senior judicial sub-group, chaired by Lord Ross, and the academic team worked closely together. To think about the design of the SIS, periodic judicial seminars were held which discussed specific challenges in how similar cases should be conceived and represented, and what judicial users would find useful. To produce a prototype, the feasibility study initially collected detailed information on over 1200 cases on three offence types. Although government officials proposed that pre-existing official data should be used, the University team found, and with the support of the judiciary successfully argued, that official data-sets could not provide a valid representation of previous cases, nor provide judicial end-users with the information they needed. The feasibility study ended with a report which concluded that an SIS was demonstrably feasible (Hutton et al. 1996).

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Taking such a proactive initiative is unusual for the (Scottish) judiciary. It was prominently and favourably reported in the news media and Lord Ross gave interviews about the project. For its part, the government was content to allow the judiciary to take a lead. The SIS initiative was also cited in response to calls to restrict judicial discretion, showing that there was a concrete plan to encourage consistency between sentencers in like cases. Judges of the intermediate Sheriff Courts, as well as prosecuting and defence lawyers, and the media all requested access. All such requests for access were declined by the Lord Justice Clerk and Lord Justice General on the basis that, at least for the time being, the project was still a ‘pilot’ and in its relatively early days.3 This line of defence was successfully maintained for over eleven years.4 Following the completion of the feasibility study, a decision was taken to implement the SIS and there followed two funding tranches to ‘phasein’ research and implementation. They were each two years long, which involved the creation of judicially-agreed data templates, data collection and pilot testing by judges and their clerks. By the end of the second phase of research and implementation, a ‘data retrieval subsystem’ and ‘data entry subsystem’ had been pilot tested by interested judges and clerks respectively. Sentencing data on over 15,000 first instance and appeal cases was collected from the High Court full case papers and in accordance with data-recording templates worked out with and agreed by the end-users (judges). The data-entry system also allowed judges to choose to enter narrative remarks where they felt that the data entry template needed to be supplemented.

3 More

recently the judiciary of the Republic of Ireland led by Justice Susan Denham took the decision to introduce an SIS. Their early and clear decision was to make it publicly accessible (O’Malley 2009, 2013, 2016). The NSW SIS is publicly available but access has been extremely limited in practice, including by the off-putting requirement to pay very high fees. In common with the SIS in the Republic of Ireland, and unlike Scotland, in New South Wales official data is relied upon, rather than the creation of its own bespoke sentencing taxonomy. 4 Even as the researchers who developed the SIS, by 2006 Neil Hutton and I were later denied access to the live SIS by a subsequent Lord Justice General.

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Conceiving and Representing Case Similarity

Aside from various technical and practical issues, the key issue with which the academic team and the judicial sub-group wrestled was the question of case similarity: how, from the perspective of judicial sentencing, should ‘similar’ cases be represented and recorded? What counts as ‘similar’? Having established that (and unlike previous attempts at an SIS) official data would not provide meaningful information about sentencing, it was concluded that bespoke data collection would be required. Official data suffers from many limitations, perhaps because it is collected for many different purposes, of which meaningful comparative sentencing data is only one. Information about the relative gravity of offending (especially in multiconviction cases) can be misleading, while previous convictions and information about the offender is frequently lacking or remarkably superficial (Tata 1997; Tata and Hutton 2003; see Chapter 3). Consequently, it was agreed that information about cases would be collected from the paper-based archives held in the High Court. It was agreed that in the event that the data-collection form failed to capture key case information, this would be supplemented by contemporaneous comments written by the sentencing judge and recorded in the SIS. By 2003, when complete control was handed over to the Scottish Court Service (SCS) the SIS contained relatively in-depth, systematic sentencing information (possibly the most in-depth anywhere) about over 15,000 sentenced cases (including appeals) passed over the previous 15 years with information. Crucially, information was collected and represented in a way agreed with the judiciary so that it would be meaningful to the intended primary end users. The idea of encouraging sentencing judges to pursue consistency in sentencing by having access to systematic information about practices in similar cases is not new. More than half a century ago, Norval Morris (1953, quoted in Frase 1997: 366) proposed the idea so judges could ‘see clearly where they stand in relation to their brethren.’5 However, it was not until the 1980s that computerised information technology became 5 In a private communication, one Scottish High Court judge showed me documentation evidencing

that he had also proposed the idea during the 1980s but was quickly dismissed by the then Lord Justice General.

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a practical reality with databases being pioneered in Canada by Hogarth (1988) in British Columbia; Doob and Park (1987) in various Canadian provinces; and then the Judicial Commission in New South Wales (Potas 2005; Tata 2000).

2.2

Public Access and Use to Inform Public Knowledge About Sentencing Practices?

The basic idea of an SIS is simple. The user selects the kind of case in which they are interested and the screen displays the pattern of sentencing in similar cases. The Scottish SIS was developed and implemented primarily with the judicial user in mind who may wish to consult the information when they are considering sentence. However, the University team argued that the information should also be made publicly available. We suggested that with an appropriate commentary the information had the potential to help inform public understandings of sentencing practices as well as the development of reform (e.g. Tata and Hutton 2003; Tata et al. 2002) in similar spirit to the way that sentencing councils tend to do (e.g. Gelb and Freiberg 2008).

2.3

User Flexibility

The Scottish SIS is searchable in a way which allows the user a high level of flexibility so that patterns of case similarity can be defined in a range of different ways (including both aggregate terms and by examining individual cases). In other words, the SIS would expressly not attempt to direct the judge to ‘the correct’ sentence, but rather offer a range of possible sentences. Unusually, but in keeping with this intended flexibility, the SIS project created two ways of conceiving and representing cases. One is the ‘Principal Offence’ approach which would conceive and represent case information according to a main, or ‘principal’ offence, and then ‘add-in’ further information (including other offences) and information about the offender. Across the world, nearly all sentencing data is represented in this way, though not without significant problems (see Chapter 3). The second

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(and complementary) approach was a way of capturing information about offences in a more holistic way. For example, rather than those recording and retrieving information having arbitrarily to select a single legal conviction as ‘the principal offence’, this ‘Whole Offence Approach’ sought to reflect and capture the short-hand narrative labels which sentencers recognise. In this way, the SIS project created a new holistic offence taxonomy, especially in dealing with the thorny issue of multi-conviction cases (Tata 1997; Tata et al. 2002; see also Chapter 3).

2.4

Hand-Over to the Court Service

It was agreed that with the handover to the Scottish Court Service (SCS) in 2003, court clerks would take-over contemporaneous recording of information. The court clerks were to be trained to enter detailed case information, (including, where necessary a short note from the sentencing judge), according to the SIS’s definitions on around 1000 new cases each year. The data retrieval system together with the data entry system and the guidance on how case information should be recorded was provided together with a programme of training events. The SIS was and would continue to be only the second existing SIS implemented anywhere in the world along with that of New South Wales. It was the only one to use a bespoke taxonomy for sentencing decision-making and developed with judicial users themselves. In this way, it was the only database anywhere to be co-produced with the judiciary to provide meaningful data specific to sentencing. However, during the lead-up to the handover to the SCS, it became increasingly apparent that the quality assurance processes recommended by the University Team would not be followed and that the clerks were not to be encouraged to record data. For instance, it was said by the chief clerk told us that the requirement to enter data and to do so in a consistent way according to the recording guidance would not be monitored at all, since he claimed their professionalism would be sufficient. Why was the SIS no longer supported? Crucially, there had been a key change in judicial leadership. Lord Hope and Lord Rodger, the Lord Justice Generals who had supported Lord Ross’ initiative, had been elevated to the House of Lords. A new Lord Justice Clerk, Lord Cullen, took over

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in 1997 before retiring as Lord Justice General in 2005. His attitude was altogether more sceptical. He showed little enthusiasm about, indeed a degree of suspicion towards the project, appearing to find pretexts to stall the second phase of implementation, and the project was marked by extended hiatuses. In the run-up to the handover to SCS, judicial seminars and training sessions about the SIS were cancelled at very short notice, and the chief clerk, (who in a different role under Lord Ross’ regime had extremely helpful), appeared to follow that lead by doing likewise in respect of training sessions for his clerks. Those training sessions were undermined and cancelled without notice. Foreseeably, with an obstructive judicial leadership mirrored by the senior clerk so that updating and maintenance was neglected, the SIS was left deliberately to quietly wither away. In the years following the hand-over to SCS interested judges and their clerks sought to use the SIS, but without training and support, gradually and predictably interest waned. As one clerk put it: “the SIS has died a death”. In other words, through deliberate neglect it seemed to die all by itself. There was no enquiry or subsequent report about what happened: none was sought by government which had funded and backed the project. Nor did we in the academic team seek to complain loudly about how the project was deliberately neglected. It was not considered to be in the interests of members of the team, who sought judicial cooperation and access in a range of other ways, to alienate the senior judiciary, not least since government officials did not wish to make a fuss about it. In the light of this outline, let us now turn to the specific claims made by Franko Aas, Tombs (2008) and others about the SIS as evidence of a fundamental shift in sentencing and the loss of professional power more generally.

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3

What Does Story of the Scottish SIS Signify?

3.1

Are Judicial Sentencers Losing Control Sentencing to Techno-Rational Instruments?

This argument parallels that made in other areas of a de-skilling and a diminution of discretionary judgement by criminal justice professionals. In policy terms, control over decision-making appears to have been sucked upwards to apparently neutral data managers. Yet did this ‘deskilling’ (Perry 2007) happen to Scottish judges? Franko Aas’ portrait of the Scottish SIS synonimises it with the machine-thinking of the US Federal system of numerical Guidelines system—a grid system which provides the sentencer with a presumptive answer—rather like an Artificial Intelligence (AI) Expert System.6 Yet such an AI Expert System approach was categorically ruled out by the research team and the judges from the very outset (Hutton et al. 1996; Tata 2000). The SIS in Scotland was specifically built not to be an AI Expert System based on a tree-diagram structure of ‘p then q’ questions and answers. Indeed a criticism which can be levelled at is that it was rather too voluntary (Tonry and Frase 2001) and too indeterminate to have much impact. Rather than imagining the SIS to be ‘sentencing by computer’, it can be better seen as a politically defensive initiative.

3.2

A Defensive Political Initiative?

The first, and short-lived, attempt to implement an SIS in Canada by Doob suggested that judicial leadership, will and desire would be the key obstacle (Tata 2000). Its construction and use was marked by three apparent virtues 6 Criticisms

of the mechanical two-dimensionality of the US numerical federal guidelines are manifold and widespread (e.g. Stith and Cabranes 1998; Tonry 2016). Although a judicial bête noire, it is important to bear in mind that, internationally, the US Federal Guidelines are very much an exceptional reform, without parallel and unrepeated anywhere else (including at state-level courts in the US). Ironically, around the same time that Sentencing in the Age of Information was produced, the US Supreme Court, in a series of decisions, made clear that the status of the guidelines was advisory rather than mandatory (see Chapter 2 and for example Frase 2007; Tonry 2016).

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as the judges could see it: neutrality, choice, and, ownership. Fortunately in Scotland, the initiative for the SIS came from the senior judiciary itself rather than being imposed on it, for example as a result of scandal as in New South Wales; and the manner of its implementation was determined by the subsequent heads of the judiciary who, fearful of public access,7 preferred to see it neglected by the SCS in the expectation that it would then quietly wither away. In other words, one cohort of the senior judiciary was able to initiate the project which was used to head-off the threat of ‘interference’ by parliament or the government8 ; and then after that threat had receded, the next cohort was able quietly to distance itself from that initiative; deliberately allowing it the SIS to ossify so that it could then be said to be of little value (Tata and Hutton 2003; Sentencing Commission for Scotland 2006).

3.3

The Indeterminacy of SIS ‘Results’

A central imperative of the SIS was to provide maximum flexibility: the user would be able to examine cases in a range of ways (often case comparison could be constructed in literally thousands of ways)—such that it defeated definitive measurement of any impact on consistency. The ability to view cases in aggregate in a range of ways and also to view details of individual cases was appealing to both tariff and individualised visions of justice. Judges appeared to enjoy literally flicking between these visions of justice. The flexibility of the SIS meant that judges could describe and account for the ways in which they might sentence, and previous ‘similar’ cases had been sentenced, in an almost infinite variety of ways. In pilot training and judicial seminars as well as judicial narrative comments, 7 We

argued that rather than seeing such information about sentencing as a threat, public access, appropriately managed, and accompanied by occasional reports contextualising sentencing practices could be a way of explaining sentencing practice and indeed engaging the public in a constructive dialogue (Tata and Hutton 2003). With the rise of the Scottish Sentencing Council (established in 2015) and its mandate to inform and engage with public opinion, some form of sentencing information will likely need to be collected and made publicly available. 8The principle threat was some form of Guidelines. Thus the judiciary did act in response to the perceived threat of increased external or managerial interference. My point is not that such a ‘threat’ was not perceived but that the senior judiciary in Scotland managed (at least so far) to overcome it quite easily.

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I observed at close quarters how they would ‘play with’ the information to reconstruct a narrative about what would have been going on in previous cases. In other words an SIS is attractive to judges, in part, when it is able to straddle two visions of justice: aggregate data (the generic/universal) and individual cases (the particular). This is a far cry from the idea of a powerful technology which lumps people together on the basis of probabilities and pre-defined packages of meaning. Rather it may reflect the impotence of voluntary guidelines to direct sentencing (Tonry and Frase 2001).

3.4

Voluntary Use

The use of the Scottish SIS was always intended to be voluntary and a matter of individual judicial choice. So the big question was whether judges would feel any obligation to use it at all. In this respect, institutional authority of the SIS would be crucial (Tata 2000). Here it is instructive to reflect on Doob’s comments on the low level of judicial use of aggregate information that Doob and Park (1987) pioneered in Canada. Doob speaks of the slow “closing out” of that project. It is easy to imagine that judges should wish to be provided with the provision of high quality sentencing information. However, experience suggests that this is doubtful, or at best, contingent. Doob found that there were “… no indications in any provinces other than Saskatchewan that a reasonable number of people used the system.” He explains that he and his colleagues had thought that Canadian judges would: … want to have easily accessible to them knowledge of current sentences being handed down in comparable cases … [and that judges] …would want to know what ‘like cases’ were getting. We were wrong … Judges as a rule do not care to know what sentences other judges are handing out. (Doob 1990)

Emphasising that he did not intend to be critical of judges, Doob observed that judges do not operate in an environment which rewards or encourages attention to ‘current practice’. The source of institutional ‘authority’ in sentencing is regarded by judges, he argues, to emanate from the Appeal

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Court. Judges do not feel a need to obtain information about “normal practice” except, paradoxically, where they are faced with an unusual case. Whether or not judicial sentencers would use and endorse a SIS is a central issue. Institutional legitimation would be critical to the longevity of any judicial decision support system. In particular, this would necessitate an institution to which the SIS would belong, as well as the express support of the Court of Criminal Appeal in its written judgements.9 The New South Wales Judicial Commission began work on an SIS in the late 1980s which has since been progressively expanded. The system is available to every Judicial Officer in the state. Although it can be implied that the progressive expansion shows user interest, this may not necessarily be the case. Indeed, there has been no independent, systematic user evaluation. The lack of such evaluation is a remarkable tactical feat. Moreover, analysis of appeal court judgements from the New South Wales CCA in its reference to the Judicial Information Research System (which includes its SIS) suggests that the senior judiciary may combine steely commitment to having no commitment to the usefulness of such information: a kind of ‘resolute ambivalence’ about clearly endorsing the value an information system (Tata 2000).

3.5

Meeting Judicial Demand

Having benefited from Doob’s warning and private correspondence with him, and visits to and from the New South Wales Judicial Commission, from the outset the question of use was uppermost in the mind of the University team. Our hope was that if we could work together with the prospective judicial users to give them an SIS which would meet their wants and needs, they would choose to use it. I believed that if we could create a more sophisticated case-sensitive information system then judges might decide to use it. That was why we collected our own data specifically tailored to what judges were seeking. By creating easily the most in-depth, 9 At

the time, it was proposed that the SIS could be housed in a body which would have a direct interest in it, such as that responsible for judicial studies (as is the case of the SIS in New South Wales which is run by the Judicial Commission). In 2015 a Scottish Sentencing Council was established which would seem, perhaps, to be an obvious home for any future SIS.

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flexible and custom-built database in collaboration with the end-user, we hoped to maximise the chances of usefulness of the SIS: at least if it was to be ignored it would not be because it did not meet judicial information ‘needs’. However, what I did not appreciate is that questions of judicial information ‘demand’ (wants and needs) are more multi-faceted, indeterminate and less easily sated (Tata 2018) than I first supposed.

3.6

Are Technologies Such as the SIS De-Humanising Sentencing?

Both Franko Aas (2004, 2005) and Tombs (2008) have assumed that the SIS in Scotland has had a profound impact on sentencing. In fact the SIS may have had remarkably little impact on sentencing practice—and, in any event, measuring such an impact definitively would be extremely difficult.

Loss of Narrative? Tombs (2008) and Franko Aas (2005) discuss how information technology has a tendency to segment information, making it portable, abstract and de-contextualised. The wholeness of the unique individual human becomes a file without narrative, a collection of individual characteristics which fit into packages of meaning pre-defined for the purposes of the machine. In his preface to Sentencing in the Age of Information, Nils Christie reports that ‘the old fashioned judge’ slowly in each unique case ‘builds a story of what has happened’. With: The modern trend of using sentencing tables and statistical information…. The accused will be converted from a whole person in a whole story to a carrier of risk configuration according to a grid of pre-determined factors.

Perry (2007: 423) declares approvingly that Franko Aas’ account evokes: a nostalgia for an earlier moment – as late as the 1980s – when judges still were accorded such oracular interpretive authority, when adjudication was still understood as an endeavour of humanistic interpretation in the service of justice.

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Tombs explains how this can lead to a hardening in sentencing and dehumanisation: To give some-one a chance, for example, involved making meaningful assessments about the character of individuals as well as the material realities of their lives. Such judicial shrewdness, born of years of experience, local knowledge and professional values, is, however, increasingly restricted by penal policy reforms that provide ‘information’ for sentencing in ‘predefined packages of meaning’ (Franko Aas 2005) – risk assessments, sentencing information systems, the threat of guidelines – that decontextualise individual offenders thus making the individual subject a ‘collection of characteristics’ rather than a whole person with a coherent identity. As a consequence sentencers are rendered ‘consumers of meaning’ (Rodaway 1995) rather than its creators. Having to pass sentences in specific cases where individuals are increasingly decontextualised by formulaic risk tools makes it more difficult for sentencers to understand the meaning of the criminal event(s) in the offender’s life …. (Tombs 2008: 99)

For Franko Aas (2004, 2005) and Tombs (2008) the SIS exemplifies this loss of context because it abstracts, de-contextualises and de-humanises so as to make information portable and easily consumable. However, while that can be one tendency of an SIS, it is not the only one. Indeed, assuming that it is the only tendency ignores what was one of the most novel constructs of the SIS: ‘the Whole Offence Approach’. This aimed to reproduce a narrative approach especially to capture multiple conviction cases. Of course, it is true that while formally an SIS is descriptive not prescriptive, it is intended to have some normative impact. The way information is categorised and described is inescapably normative too.

The Social Construction of Cases More importantly it is asserted by the new penology inspired sentencing literature that previously under the ‘old’ penology, sentencing was about a concern with the unique individual rather than about the assessment of categories. Now emphasis is on “models and rules when before there were individual narratives” (Franko Aas 2005: 158).

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Franko Aas and Tombs suggest that the classical narrative identity is based on construction of an offender’s life story or a biography with a certain sense of internal connection between the past, present and the future. Implicit in the biographical narrative is a holistic approach to offenders. However, the increasing use of computers is said to lead to a move from a holistic to an analytical view of offenders’ identity (Franko Aas 2004: 386). Yet, there are at least two reasons for thinking that this claim is marked by a romanticised nostalgia. First, the sentencing process is about the typification and routinisation of cases—this is nothing new. Sentencing does not and cannot judge unique individuals but rather ‘a limited number of typified plots’ (see Chapter 3). Secondly, both Franko Aas (2004, 2005) and Tombs (2008) suggest that new forms of control imposed on judges result in increasingly de-contextualised sentencing. Weight is accorded to ‘models and rules when before there were individual narratives’ (Franko Aas 2005: 158). There is said to have been a distinct break with the old penology of welfare. Tombs specifically attributes this to changes in pre-sentence reports, including the use of risk assessment and National Standards governing pre-sentence reports. But most judges read these reports after they have reviewed the other information in the case file. Narratives in reports often have to compete for credibility with the picture which the judge had already built up. Research suggests that many judges read reports from back-to-front and may miss key points about the person’s background or regard such information with a weary insouciance (Tata 2018). This way of reading pre-sentence reports is not imposed upon sentencers by National Standards or risk assessment. Instead these judicial sentencers tend to feel that this is the way to identify information which is relevant to deciding sentence.

3.7

Are Sentencers Now Mere Consumers of Meaning Rather Than the Creators’?

The Scottish SIS’ flexibility and the different ways in which judges can construct searches for previous cases underlines the way that they actively

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attempt to create meaning from the information they have. In their discussions about trialling the SIS, judges interpreted and reconstructed case information, often going well beyond the information on screen. They used the SIS as a resource to re-construct different justifications for different possible sentences. Tombs argues that other forms of ‘information assistance’ (e.g. National Standards for pre-sentence reports) are de-contextualising sentencing. The use of risk-assessment scores in pre-sentence reports means, Tombs argues, that ‘knowledge of the individual [has] been “lost”’ (Tombs 2008: 12, sic ). Risk assessment tools have led to the ‘erasure of contextualised individuals’ (Tombs 2008: 12). However, at least in Scotland, this view overplays both the use and importance of risk assessment tools. Risk assessment information is normally provided to courts through pre-sentence reports. While report writers are required to include risk assessment tools, close empirical research suggests that most social work report writers tend to be sceptical about such tools and frequently do not include them (McNeill et al. 2009) (even though the managerial influence of the inspection agency would criticise them for this). Secondly, the same research suggests that sentencers and lawyers are unimpressed by risk assessment tools and tend to ignore them. It was striking that judges were unconcerned about and dismissive of risk assessment technologies (though they could also be dismissive of social workers’ professional judgement: Tata et al. 2008). In reading presentence reports, judicial interpretations of offences and offenders would override those suggested and encoded by report writers (Tata et al. 2008). Again this is some way from the claim that judges are given pre-digested closed information which they simply have passively to consume. Thirdly, although community justice professionals increasingly refer to risk and risk technologies they appear to do so in particular ways, including in defence of welfare values (e.g. constructing narratives which suggest that the best way to address ‘risk’ is by attending to ‘needs’) (McNeill et al. 2009; see also Lynch 2000; Wandall 2008: 118–119). In daily practice there may be no simple distinction between ‘risk’ and ‘welfare’ ideologies.

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Mirror Images: The New Penology-Inspired Literature and the Legal-Rational Tradition

Despite its lamentation of the apparent loss of narrative and concern for the unique individual, the new penology inspired literature on sentencing propounded by Franko Aas (2004, 2005), Tombs (2008) and others, like the legal-rational tradition, conceives sentencing behaviour through the lens of legal formalism and fact positivism. Official rules are largely inert, facts are given. Change is generated from official policies, procedures, discourses from ‘above’, rather than in the practices of their ‘streetlevel’ implementation (Lipsky 2010). Sharing the paradigm of presumed autonomous individualism, we have a portrait of discretion as individually free (judicial) choice permitted by the absence of juridical restriction (see Chapter 2). Franko Aas proposes that “discretion is the opposite of rules….the existence of discretion presupposes an element of choice” (Franko Aas 2005: 15). In her analysis, discretion and rules operate as distinct and competing individual forces. Although the new penology inspired sentencing literature is preoccupied with excessive legal rationality and the loss of humanistic values, it nonetheless shares the legal-rational conception of ‘structure’ impacting upon discretion. Discretion is acted upon (see Chapter 2). This is borne from a ‘top-down’ view of human behaviour, which pays scant regard to how people interpret and use apparently structuring impositions. The SIS experience in Scotland suggests that it is the shifting generic-particular dialogue (e.g. between the aggregate and the individual vision of justice) which means that the SIS has been much less an instrumental imposition than a resource. To suppose that the SIS is illustrative of the insidious creep of techno-managerial control is to imagine ‘penal agents as executive automata or docile bodies entrapped in an “iron cage” of an over-rationalized criminal justice system’ (Cheliotis 2006: 314). This is indeed a view of information as both positivistic and determinative.

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Though they are normatively opposed, this new penology inspired literature shares the same epistemic and ontological assumptions as the legalrationalist tradition. Both operate on a top-down vision which privilege the power of officialdom: legality, rules, policies and procedures as well as a positivistic view of information as autonomous things. So concerned are they with their normative preoccupations (for or against explication, juridification, consistency/proportionality or individualisation etc.) that they pay scant attention to the social process of making sense of information: how judges and other professionals make fluid use of ‘information’, not only as individuals, but in the performance of professional relationships (see Chapters 4 and 5). In the reality of its social life, information does not exist as an autonomous thing in itself—it is always interconnected, mediated, relational. This is not to deny that there are instances of de-professionalisation of tasks once seen as the province of a profession. Through her close empirical research, for instance, Robinson (2017, 2018) charts how the production of pre-sentence reports in England and Wales is increasingly undertaken by non-professional probation service officers. Further objects, like technology, the case file etc. may be invested with the sense of agency— they may be experienced by people as ‘doing’ actions at different times in different ways. This draws attention to the ways in which human beings and things interact in the social world—how the meanings of those ‘things’ changes and how they appear in their intricate relationships with each other to structure the world (e.g. Bastard and Dubois 2016; Hutton 2013; van Oorschot 2018, 2020).

5

Conclusions

In contrast to the findings of empirical research which has established that the legal process itself produces consistency relationally in its making, transforming normalising, standardising cases (see especially Chapter 3), Franko Aas (2004, 2005) perpetuates the fiction that the practice of consistency is largely produced by official rules. Moreover, in exalting discretion and deprecating official rules, we are invited to evoke a past which is void of the social construction of cases. There is barely acknowledgement that

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cases are constructed, transformed and normalised through social relationships and with each other as ‘streams’ of cases (Emerson 1983; see also Chapter 3), and through the performance of professional relationships (see Chapters 4 and 5). We are instead invited to recall supposedly simpler times in which unique individual judges, by exercising judgement borne of vast reservoirs of experience’ of accumulated wisdom (Brown 2017: 226–240) arrive at decisions based on the wholly unique individuals before them. Each case is portrayed as unmediated by the process as if autonomous and sealed from its relationship with other cases, and the autonomous individual judge sealed from any relationships with other judges or professionals. Of course, this is a seductive romantic myth: a reverie of pre-industrial innocence, prior to the age of the machine. As such, stories like Sentencing in the Age of Information have a perpetual and beguiling appeal: they articulate our anxieties about industrialisation, mechanisation and inescapable dehumanisation, which technology may readily exemplify. Those dangers are real, of course, but so too are the risks of cosy but misleading nostalgia.

References Bagaric, M., & Wolf, G. (2018). Sentencing by Computer. George Mason Law Review, 25 (3), 653–709. Bastard, J., & Dubois, C. (2016). Making Sense or/of Decisions? Collective Action in Early Release Process. In A. Hondeghem, et al. (Eds.), Modernisation of the Criminal Justice Chain and the Judicial System (pp. 169–172). Cham: Springer. Bovens, M., & Zouridis, S. (2002). From Street-Level to System-Level Bureaucracies: How Information and Communication Technology Is Transforming Administrative Discretion and Constitutional Control. Public Administration Review, 62(2), 174–184. Brown, G. (2017). Criminal Sentencing as Practical Wisdom. Oxford: Hart Publishing. Cheliotis, L. (2006). How Iron is the Iron Cage of the New Penology? Punishment & Society, 8(3), 313–340.

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Hutton, N., Paterson, A., Tata, C., & Wilson, J. (1996). A Prototype Sentencing Information System for the High Court of Justiciary: Report of the Study of Feasibility. Edinburgh: HMSO/Scottish Office Central Research Unit. Lipsky, M. (2010). Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (Martin Robertson 30th anniversary ed.). New York: Russell Sage Foundation. Lynch, M. (2000). Rehabilitation as Rhetoric: The Reformable Individual in Contemporary Parole Discourse and Practices. Punishment & Society, 2(1), 40–65. May, T., & Annison, J. (1998). The Deprofessionalization of Probation Officers. In P. Abbott & L. Merrabau (Eds.), The Sociology of the Caring Professions (pp. 157–177). London: Routledge. McNeill, F., Burns, N., Halliday, S., Hutton, N., & Tata, C. (2009). Risk, Responsibility and Reconfiguration. Punishment & Society, 11(4), 419–442. Newman, D. (2016). Are Lawyers Alienated Workers? European Journal of Current Legal Issues, 22(3). O’Malley, T. (2009). Principled Discretion: Developing a Coherent Sentencing Policy. Kildare: Irish Academic Press. O’Malley, T. (2013). Living Without Guidelines. In A. Ashworth & J. Roberts (Eds.), Sentencing Guidelines (pp. 218–236). Oxford: Oxford University Press. O’Malley, T. (2016). Sentencing Law and Practice. Dublin: Thomson Round Hall. Perry, R. (2007). Book Review—Sentencing in the Age of Information: From Faust to MacIntosh. Punishment & Society, 9 (4), 421–424. Phillips, J. (2017). Probation in the Information Age. Probation Journal, 64 (3), 209–225. Potas, I. (2005). The Sentencing Information System. Australian Law Reform Commission—Reform Journal, 86, 17–23. Robinson, G. (2017, October 9). Stand-Down and Deliver: Pre-sentence Reports, Quality and the New Culture of Speed. Probation Journal, 64 (4), 337–353. Robinson, G. (2018). Transforming Probation Services in Magistrates Courts. Probation Journal, 65 (3), 316–334. Rodaway, P. (1995). Exploring the Subject in Hyper-Reality. In S. Pile and N. Thrift (Eds.), Mapping the Subject: Geographies of Cultural Transformation (pp. 241–266). London and New York: Routledge. Sentencing Commission for Scotland. (2006). The Scope to Improve Consistency in Sentencing. Edinburgh: TSO. Stith, K., & Cabranes, J. (1998). Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: Chicago University Press.

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7 New Directions for Research and Policy

Abstract Sentencing scholarship has been marked by an impatience to solve perceived normative problems. The preoccupations of the legalrational and judicial-defensive traditions respectively for and against reform impedes the development of a deeper conceptualisation of the reality of sentencing decision-making. Recapping key messages of the book, this chapter develops the normative implications for key policy and reform conundrums, including rules and discretion; consistency and individualisation in sentencing; the efficiency and quality of justice; and the effectiveness of punishment. The reader is invited to reflect on questions comprising the development of a research agenda re-conceptualising sentencing as a social process. Keywords Sentencing reform · Sentencing research · Penal reform · Imprisonment · Plea bargaining · Criminal justice efficiency · Sentencing disparity Map of Chapter Seven Section 1 consolidates the argument of the book for loosening the grip of presumed property-owning autonomous individualism so as to ask in © The Author(s) 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7_7

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Sect. 2 what research and policy should do. I examine the implications of the interpretive, processual and performative character of sentencing for four aspects: rules, facts and discretion; second, the meanings of efficiency; third, new research agendas (focused on the experiences of people subject to the process) and fourth, the need for greater clarity of purpose in the parsimonious and proportionate use of imprisonment (in particular the need to drop the dicta of ‘imprisonment as the last resort’ which only embeds imprisonment as the default).

1

Loosening the Grip of Presumed Autonomous Individualism

Scholarship and policy thinking about sentencing has been fixated with the question of whether there should be more or less restriction (law) on or more or less freedom (discretion) granted to individual judicial sentencers. Consequently, familiar questions reverberate. What, if anything should be done about sentencing? How can sentencing be more consistent, truly proportionate, transparent, and effective in reducing reoffending? How should discretion be curtailed, or informed, structured or protected? These are important questions, yet the very urgency with which they are asked tends to impede the development of a deeper empirical understanding of decision-making. So impatient can the legal-rational reformer be to improve matters, and so anxious can the judicial-defensive sceptic be to protect the status quo, that both traditions tend to obscure and obstruct the possibility of a deeper conceptualisation of the reality of decisionmaking. We need to be careful not to ‘read-off ’ empirical portraits of sentencing reality from normative preoccupations. Yet, despite the passion generated, or perhaps because of it, the two traditions in fact share the same assumed ontology of sentencing. Enveloped in presumed autonomous individualism, law is seen instrumentally as rules which structure and restrict, counterposed with discretion which is regarded as the freedom left by the absence of legal rules. As we saw in Chapter 2, this is rooted in a binary conception of freedom and coercion, which presupposes the sovereign self-contained property owning gendered man. In this tussle, the practical conceptions of ‘rules’ and ‘discretion’ are

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posited as immutable and static autonomous entities. Second, sentencing decisions are regarded as autonomous individual moments. Third, sentencing is thought to be the recipient of autonomous individual facts or factors, each in turn possessing their own inalienable individual properties. By contrast, this book argues that sentencing decision-making is an intuitive and holistic (but not irrational or inexplicable) process resulting from and in transformative case-work which regularises and structures decision-making through the performance of social and cultural roles and practices. It is predictable and relatively consistent without being determined by formal rules or individual factors. As shown by Chapter 3, the study of sentencing as a social process combines characteristics which the two traditions hold to be antithetical. It can reveal decision-making to be both holistic and intuitive on the one hand, and also knowable, predictable and explicable on the other. The idea that sentencing is determined by a series of autonomous individual actions should be relinquished. Decision-makers can only operate in a world of shared social expectations and obligations. Individual ‘factors’ do not operate autonomously, as solitary self-possessed forces acting upon individual decision-makers. Rather we can, as Chapter 3 argues, apprehend routine sentencing activity as the recognition and continual recreation of ‘typified whole case stories’. Furthermore, just as information in cases is not composed of discrete, isolated factors, so too decision-makers operate together in a world of shared meanings, routine short-hand, cues and codes. Just as in the interpretation of case information, social relationships do not merely mediate the conduct of information, but constitute it. The relationships themselves are conducted in the communication about cases, and that communication about cases constitutes relationships. The presumption of autonomous individualism is itself a historically specific socio-cultural idea of the self (e.g. Davies 1999, 2007; Lacey 2018; Nedelsky 2011). We have seen how this presumption encompasses not only the ways in which human action is conceived, but also the conception of the wider cosmos in which sentencing is imagined. The paradigm of presumed autonomous individualism extends to case facts and factors, as well as rules and discretion, all of which are characterised as autonomous individual forces with their own properties, remaining unchanged by their interaction with each other.

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As Chapter 4 explained, these ideas are further reflected in conceptions of professions. Professions manage the fluid interaction between rules and facts in controlling autonomous individual dominions of work. Unable to conceive of and address the collective social patterns underlying criminal cases, the work of the sentencing professions (e.g. judges, lawyers and probation officers) can do little other than understand the actions of those before them as authored by essentially autonomous individuals. This requires that those to be sentenced should present themselves as culpable, autonomous individuals. Moreover, as Chapter 5 suggests, the poorly connected interfaces between the work of individual autonomous professions means that the person subject to sentencing has to consider a jumble of inter-connecting implications. Without any controlling plan (indeed because of its very lack), the seemingly autonomous work of separate professions symbiotically achieves latent effects: the expeditious disposal of cases and the generation of ‘ideal’ penal subjects. Although it is widely assumed that techno-rational instruments are diminishing the professional ‘ownership’ of dominions of sentencing work, closer analysis, Chapter 6 shows, suggests a more complex picture. Indeed, these claims are sometimes based in the presumed autonomous individualism of sentencing work. I have sought to show how decision-making is necessarily social in character for three reasons. First, it is interpretive—isolated individual ‘things’ do not and cannot exist statically and autonomously in the reality of sentencing work. So meaning is constituted by relationships. Second, sentencing is a process of case-making and agenda-setting, rather than a momentary decision. This means that it is not only judges who do sentencing work, but all of those constructing the case. Third, sentencing work is done in the performance of communication—there is no other essence of cases, facts or decisions apart from that performance. Performance should not be taken to imply something which is fake, as if there were some true individual essence to be uncovered, but rather encourages us to think about the fulfilment of roles and relationships in everyday practices of sentencing work.

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What Should Sentencing Research and Policy Do Now?

2.1

An Interpretive Research Approach to Rules, Facts and Discretion

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Sentencing: A Social Process reveals that presumed property-owning autonomous individualism is the central trope of both progressive reformers and conservatives. This trope is reproduced in scholarly and policy conceptions of decision-making practice by supposing that sentencing is the product of an aggregate of autonomous individual actions. Further, this imagined autonomous individualism is reflected onto and reproduced by an imagined wider ‘universe’ including sentencing ‘things’: a universe presumed also to be composed of autonomous individual entities (e.g. rules, facts, factors, decision moments, technologies, etc.), also each possessing its own autonomous properties. I have argued instead for an approach which understands sentencing case ‘facts’ as necessarily and inescapably typified by the practices of the criminal process: ‘typified whole case stories’. It makes sense to talk in the abstract about binary categories (e.g. rules versus discretion; aggravating and mitigating factors; rules and facts, etc.) as separate things in themselves. However, the attempt to represent that binary mode of thinking empirically is far more problematic. Instead, an approach to research which recognises sentencing as relationally meaningful, based on ‘typified whole case stories’, offers a complementary approach to research. This enables us to recognise that decision-making is both holistic and intuitive, and not irrational nor inexplicable. To assume so is a mistake which both the legal-rational and judicial-defensive traditions make. An interpretive approach enables research to take seriously the plea of judges that decision-making is contextual, but without then opening the door to the empirical defeatism of the judicial-defensive tradition. What does an interpretive approach to rules, facts and discretion mean for sentencing reform? Conceiving of the decision process as holistic

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and intuitive (because it is the result of case-construction and processtypification) demands that we should re-assess our knowledge of decisionmaking. It enables us to re-think the implications for research and policy, in particular about the prescription of guidelines and disparity.

What Are the Implications for Guidelines and Rule-Like Instruments? The idea that official rules should be assumed to be the primary restriction in sentencing decision-making is unfeasible. That is not to say that official rules are unimportant in instrumental terms. However, it is to reiterate that official rules are almost always indeterminate, limited, and mutually contradictory. They depend on their inter-application with case ‘facts’ which are themselves typified and normalised cognitively and organisationally through the performance of relationships and roles. What this means is that we should approach with scepticism the ubiquitous, easy presumption that because sentencing lacks much in the way of official rules it must therefore be ‘unstructured’: a field of individual freedom. This is a key error which sentencing and legal decision-making scholarship has frequently made. Law’s conceit is to suppose that it is the only, or primary, force which ‘structures’ human life. We should hardly be surprised that rule-like instruments (laws, guidelines, principles, etc.) are limited in their impact (e.g. Tonry 2016; Ashworth 2013; see also more generally, Lipsky 2010). It is in the very requirement to implement generic statements that their ineluctable ambiguity, contingency, mutual contradiction becomes apparent. We have already seen the instrumental limitations of official rules. If we want to ‘fix’ identified problems, we need to examine much more carefully the social dynamics of case construction throughout the process. It is not enough simply to focus on the end point—formal judicial decision (important though that can be)—but rather we should focus on how the agenda is created for that official decision: that means a concentration on the process constituted by the full range of professionals.

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Making Sense of Consistency and Disparity Understanding and Measuring Case Similarity Consistency means treating similar cases similarly and dissimilar cases differently. The existing orientation of research is to presume that if sentencing is marked by wide formal discretion then it must be unstructured and so arbitrary, capricious and inconsistent. I have argued that sentencing is a socially structured and predictable process, often in spite of a lack of formal rules (e.g. Baumgartner 1992; Leibling 2000; Tata and Hutton 1998). The implication is that if we want to measure consistency and disparity, we need first to create a methodology which allows for a better and more nuanced understanding of case similarity so as to capture decisionmaking more meaningfully than is possible through the use of official data categories (see Chapters 3 and 6). Research should concentrate its attention on the enmeshed relationship between formal rules and informal rules, (e.g. organisational codes and cultural conventions). Only then can we begin to build possible reforms on more solid ground of knowledge about daily practices.

The Pragmatic Utility and Performance of Disparity Sentencing disparity does not only violate just the principle of legal equality. It also yields systemic unpredictability and inefficiency. Unpredictability means, for example, that governments cannot forecast the ‘demand’ for prison places. Inconsistency thwarts attempts to improve systemic efficiency. For example, ‘judge shopping’ is the tactical practice of (typically defence) lawyers attempting to choose (or ‘shop around’ for) a more favourable sentencer by seeking an adjournment in the hope of coming before a different sentencer. This is not necessarily unethical; indeed one could argue that defence lawyers owe their clients a duty to judge-shop. Yet from a system perspective, the existence, or at least perception, of disparity yields delay and inefficiency. While sensible and rational from the perspective of defence lawyers (Tata 2007), the desire to judge-shop undermines the stated purpose of policies to accelerate the disposal of cases

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(e.g. sentence reductions for early guilty pleas; or efforts to try to reduce non-appearance by defendants in court). Furthermore, judges may also, in some instances, exploit their or others’ reputations for idiosyncratic practices in order to help manage their own case-loads. From their perspective this is perfectly sensible ‘judgecraft’ (Cowan and Moorhead 2007; Roach Anleu and Mack 2017). In other words, the idea that disparity is simply due to random ‘happenstance’ (von Hirsch et al. 1987: 4), or the result of individual personal views (e.g. Hogarth 1971) ignores the practical utility of disparity to individual professionals. Moreover, a degree of disparity is valued by professionals not only because of its managerial utility, but also as an aesthetic quality in itself. It is part of the performance of being a professional, which as we saw in Chapter 5 depends heavily on a trope of individual, personal duty. A little bit of disparity is a kind of personal signature in the craft of justice; it signals a small resistance to the regimented uniformity of bureaucratic ideals of justice. Reformers seeking to reduce disparity through the imposition of stricter official rules, guidelines, or indeed performance targets, need not only to be aware of their malleability, ‘creative compliance’ (McBarnet and Whelan 1991) and potential for ‘circumvention’ (Tonry 2016: 107). They also need to reckon with the reality that disparity, or at least its perception, is a valuable personal-professional resource. It may be systemically inefficient as well as unjust, but it is also a useful tool of managerial efficiency by which practitioners control the case and their wider case-loads and to perform the individualized craft of their work. What this suggests is that reforms intended to reduce disparity should also be closely tied to reforms which could offer practitioners greater control to off-set that loss.

2.2

Re-thinking the Meanings of ‘Efficiency’

Conceiving of sentencing as a social process suggests the need to re-think the meanings of efficiency. In the justice system, ‘efficiency’ and the ‘quality’ of justice are commonly regarded as competing virtues pulling in opposite directions. This leads to talk of a ‘balance’ between the two and

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debate about where that balance should be struck. Ultimately this comes down to a debate between ideals and practicality. In an ideal world, conventional policy thinking runs, we would explore cases in more depth but resources are finite and so limits are necessary. This idea of a trade-off can be seen most acutely in the controversies surrounding guilty pleas, and plea bargaining in particular. Conventionally it is thought that the encouragement of ‘early’ guilty pleas is a pragmatic necessity. Without guilty pleas, it is commonly asserted, the criminal court system would collapse under the weight of case-load pressure: ‘pragmatic justice in an imperfect world’ (Flynn and Frieberg 2018). We can refer to this line of thinking as the ‘case-load thesis’. Let us scrutinise this case-load thesis, and the ubiquitous supposition on which it rests, that efficiency and the quality of justice operate in a direct trade-off.

Is Plea Bargaining Simply a Pragmatic Necessity? Is plea bargaining explained by case-load pressure? There are at least four good reasons to approach the case-load explanation with scepticism. First, the ‘case-load thesis’ ‘has little evidence to support it – the time and location of the time and location of system changes from trial to non-trial adjudication are not related to significant increases in case input’ (Weigend 2006: 213). Second, the deployment of schemes to encourage a shift away from trials cannot be explained by level of workload volumes (e.g. Eisenstein and Jacob 1977; Feeley 1979, 1982; Heumann 1975, 1978; Mather 1979; Vogel 2007). Third, and related, comparisons over time of low and high court volumes show remarkably little difference in guilty plea rates: ‘a high percentage of cases conclude with a guilty plea even when there is very little caseload pressure’ (McCoy 1983: 59). Fourth, and ironically, the very expectation generated by schemes to encourage early settlement can itself lead to wasteful ‘churn’ and delay in court hearings, leading to an ‘adjournments culture’ (Kemp 2008; Gormley and Tata 2019). Let us think about the meaning of ‘efficiency’. Measuring ‘efficiency’ in the justice system is not a value-free exercise. It implies normative claims about what is just, necessary and wasteful, based on different and competing perspectives about quality and, ultimately, justice. It is easy to

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imagine that efficiency is simply the production and disposal of more cases at a lower unit cost. Yet, what should be the desired output of sentencing? What should the sentencing process be trying to produce? Is it the sheer number of cases processed? The output of a justice system must, by definition, be justice. Therefore, an approach which pits the quality of justice against case-volume throughput cannot be ‘efficient’. Rather than ceding ‘efficiency’ to arguments of case-disposal for its own sake, those seeking to maintain the ideals of justice, however defined, may be well advised to claim their ‘true’ meaning of ‘efficiency’ as producing justice. This means that the simple division between what is often seen as the ‘real business’ of case-disposal and the seemingly superfluous values of communication is false. Rather than seeing communication and especially participation as dispensable frippery, we should instead see them as essential to and inseparable from true efficiency. This leads us then to think about the prevalent binary division between what is considered ‘instrumental’ and what is thought to be ‘merely symbolic’.

Action Versus Communication? The prevalent but ultimately nonsensical division between ‘justice’ and ‘efficiency’ reflects the division between the ‘instrumental’ and ‘symbolic’. We often talk of practices being ‘merely’ symbolic, ceremonial, or ritualistic, as if they are little more than a gloss on action. This is redolent of an opposition between ‘mere’ speech and ‘real’ action, saying and doing. However, communication is not ‘mere’ talk or symbolism, it performs and achieves action and change. The separation between what is referred to as ‘instrumental’ as distinct from ‘symbolic’ is, in a field like penality, particularly unsustainable, where ‘the instrumental is symbolic’ (Garland 1990: 225, original emphasis retained). We can then begin to think differently about the value of meaningful communication in the sentencing process, which publicly censures and holds the sentenced person to account, but also allows that person (and the person harmed) a chance to express themselves. Without that, it is hardly surprising that people (including sentencing professionals) find the process empty, sterile and meaningless

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(Bandes 2015). Indeed, the drive for increasingly remote instrumental ‘efficiency’, which in effect silences the parties affected in favour of casedisposal for its own sake, may be a driver of of public cynicism about the process (Tait 2002). The policy implication is to value emotionally meaningful communication, for only that can enable a sense of being listened to, respected and offer emotional resolution. The repeated complaint of witnesses, victims and offenders is not that the sentence is wrong, but they have not been allowed a genuine opportunity to participate and feel processed like an object (e.g. Jacobson et al. 2015). That is not to deny that every day individual sentencing professionals make valiant efforts to communicate meaningfully with court users, but they do so despite the system’s drivers, not because of them. Moreover, the increasing push towards ever more remote justice processes seems to be antithetical to values of public accountability and emotionally meaningful communication. The huge expansion of out-of-court ‘offers’ of settlement by the executive branch of the state (prosecution and police) means that in some jurisdictions more cases are being dealt with that way than through court (Matthews 2016). While there may be potential to use such executive measures creatively, we must recall that they are not a diversion from the penal system, merely a diversion from the due process protections in open court. Although they do not constitute a criminal conviction per se, accepted offers of settlement may nonetheless be searchable by future prospective employers, public authorities, border agencies, the police, etc. as part of a person’s ‘criminal history’. It demands that new research is commissioned to address urgent questions. How are decisions reached to make to make such an offer? How do people receiving such ‘offers’ interpret them? How do they make decisions? What legal advice is available? On what basis are monetary offers (fines) ‘offered’? How, if at all, are they scaled by prosecutors or the police to the person’s ability to pay? All of this means that the simple view of ‘efficiency’ as mass case-disposal cannot hold. We can envisage two ways of thinking about efficiency. The first might be termed ‘case-disposal efficiency’, assuming that the volume of case-disposal in relation to spending equals ‘efficiency’. However, this ignores the fact that the goal of ‘efficient justice’ should be to produce justice. Efficiency is, as utilitarian philosophy argues, always about achieving

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a morally desirable goal. Value for money invites us to consider what values we are seeking to achieve. Instead, we can conceive of a second conception of efficiency, ‘emotionally intelligent efficiency’. This focuses on enabling: participation, dignity, accountability for the harm done, and justice being seen to be done, and thus seen as legitimate.

Compounding Effects In our thinking about efficiency, we should seek to incorporate the effects of entanglement with the justice system which are diffuse and mutually compounding. It has long been understood by practitioners that experiences with justice processes tend negatively to impact on people’s health, mental well-being, financial, employment, familial and housing securities. Feeling degraded by the process impacts on other parts of the public purse which may far outweigh the marginal saving in, for example, police, court time or probation time in dealing with witnesses, offenders, victims, etc. Just as a seemingly discrete disturbance to the earth’s crust may set in train a domino effect of disturbances to other supposedly autonomous individual elements (e.g. oceanic) in the wider eco-system, so too the impact of justice processes sets up cumulative effects. In the tendency to ignore such impacts we again see the pervasiveness of autonomous individualism: the idea that the universe is split into separate individual entities which exist in themselves and in isolation from each other. Instead, what happens in justice processes cannot be detached from other public policy arenas. Measuring the impact of justice on other (supposedly separate) areas might be an ambitious project, but if we are to begin to think more seriously about efficiency, then research should document these holistic impacts.

Restructuring Legal Aid to Facilitate Exiting Criminal Justice Let us take one example about how public spending in one area appears efficient but may well produce overall inefficiencies: legal aid payment regimes. In a number of common law countries (e.g. England and Wales, Australia, Scotland, Canada) the payment of private firm defence lawyers

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through the provision of public money is hotly debated. Legal aid authorities are encouraged by their governments to clamp down on spending while still enabling the same number of cases to be processed. On the other hand, if we are trying to design a system which is societally efficient we have to consider the collateral consequences for other agencies. Currently, legal aid tends to incentivise ‘case disposal’. The debate about legal aid spending is narrowly focused on what happens in court and is seen as the province of lawyers. From a wider societal perspective this is not efficient. It also tends to lead to its own churn: the system itself induces demand. It offers no encouragement to assist people with their often chronic needs, which are only embedded and exacerbated by entanglement with criminal justice. That some practitioners do their best to help people in this way is generally in spite of legal aid (and wider system) imperatives, not because of them. If we are looking to reduce the likelihood of people repeatedly coming before criminal justice, we have been incentivising the wrong things. Defence lawyers are uniquely placed to signpost and refer their clients to welfare, health, addiction, housing, etc. services. Currently, such work is unremunerated. Restructuring legal aid to reward defence lawyers for helping clients exit criminal justice would be societally more effective, even if it might not look so good on a narrow budget sheet of a legal aid authority.

2.3

Study the Experiences of People Proceeded Against

It is remarkable, even shameful, how little research, including my own, has achieved in understanding the experiences of those subjected to sentencing. Research has been complicit in silencing and marginalising those voices. While we think we know what people experience, in fact we have tended to ‘read-off ’ from our assumptions as researchers and what professionals believe people feel and experience. As desistance research (e.g. Maruna 2001; McNeil 2015; McNeill and Weaver 2010; Schinkel 2014; Weaver 2016) has begun to show, that is not the same thing. The contingencies by which people make sense of their entanglement with the

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justice system together with their wider life-considerations; their understandings and interpretation of sentencing and authority offer valuable insights which would also help us think more efficaciously about how to improve rates of legal compliance (e.g. Boone and Maguire 2017; Weaver and Barry 2014). There have been valuable recent (e.g. Gibbs 2016; Jacobson et al. 2015) and not so recent (e.g. Casper 1972) studies asking people in interviews or surveys for their views about their experiences of being subject to criminal proceedings. However, what is needed is to follow and observe cases longitudinally on their journey through the process to the implementation of the sentence; and, ideally, directly relating those to the experiences and intentions of the relevant professionals in those same cases. Given that conventional explanations (e.g. case-load pressure) cannot explain the drive for admissions of guilt, how instead might it be explained?

Professional Performance Thinking about the performance of professional roles in sentencing offers a fruitful avenue of enquiry (e.g. Roach Anleu and Mack 2017). As we saw in Chapters 4 and 5, sentencing professionals on the one hand look to dispose cases expeditiously. On the other hand, their performance as professionals necessarily requires them to be seen and to see themselves as individually responsible for justice. If it is to be seen as more than the infliction of unjustified violence (Cover 1986), sentencing must be shown to be legitimate, that is, justifiable and deserved. Justice must not only be done, but more importantly, be seen by sentencing professionals to be done. These two imperatives (expeditious case-disposal and seeing justice done) could result in irreconcilable conflict. However, the potential conflict between these two requirements is resolved by admissions of guilt. By being shown to choose to admit guilt freely and sincerely, defendants are seen voluntarily to accept the legitimacy of the process. Given the paradigm of presumed autonomous individualism which is accentuated by the criminal law and punishment (see Chapter 4), nothing can impress quite so much as the sight of a presumed autonomous individual shown freely to choose to admit their culpability and accept the legitimacy of

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their impending punishment. Such voluntary admissions and acceptance of individual culpability, (which Chapter 5 proposes are partly generated through humanisation processes), trump potential professional qualms about the fairness and legitimacy of the process. Humanisation work (mitigation, individualisation, being given a voice, etc.) helps to reproduce the ‘ideal offender’, who is shown freely and wholeheartedly to admit guilt and accept her impending punishment. Thus, early admissions of guilt do save ‘resources’, but not in narrow financial or temporal senses. Instead they save professionals’ emotional, cognitive and relational resources. Voluntary and sincere admissions of guilt save professionals from the threat of potentially debilitating doubt and uncertainty about fairness of the process; and, emotional and intellectual energy which would otherwise be required by a defendant’s legal denial and moral resistance to punishment.

The ‘What Works?’ Question and the Re-generation of Offenders Perhaps the most commonly asked and prolifically researched question about sentencing is: ‘what works to reduce reoffending?’ What interventions work best? However, the ‘what works?’ question presupposes that sentencing, and involvement with the justice process more generally, reduces further involvement with it. We saw in Chapter 5 that the requirement to show oneself as accepting impending punishment by acknowledging freely one’s individual culpability tends to realign the person’s posture to generate the production of ‘ideal’ clientele. The person who denies factual and/or moral guilt gives those ‘corrections’ (or ‘therapeutic’) professionals implementing the sentence ‘nothing to work with’. She present as ‘uncooperative’, ‘unsuitable’ or ‘in denial’. This reminds us of the uncomfortable truth that the sentencing process, including its implementation, has a tendency to regenerate its own client group. However, regeneration of clientele occurs not only through labelling and stigmatisation, but also through the impoverishing and socially excluding effects of any entanglement with criminal justice (e.g. McAra and McVie 2007, 2010), as well as the re-offender premium

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(ratcheting-up punishment for those who have previous convictions: e.g. Roberts and von Hirsch 2014). It also occurs because in the sentencing process, including implementation, people tend to be denied a clear understanding of what they have to do to extricate themselves from criminal justice; and so attempts to achieve the kind of personal change which may be required are thwarted (e.g. Hall 2016; Schinkel 2014). In part as a consequence of the poorly connected interfaces between different elements in the experience of the process (discussed in Chapter 5), the process tends to retain and embed the dependence of sentenced people on criminal justice. Exiting criminal justice occurs despite its tendencies to cultivate its clients, not because it facilitates exit (e.g. Weaver 2016). Of course, all industries and all professions, no matter how wellintentioned, have a tendency to cultivate their own client groups (e.g. Abbott 1988; Foucault 1980, 1977; Johnson 1972; McNeill 2019). However, this insight evokes a response to the question, ‘why isn’t the justice system better at reducing reoffending?’ We should instead ask: how do people, against the odds, manage to leave criminal justice, and, what can we learn from their successful departure?

Focus on the Interfaces and Ancillary Staff A new avenue which research should open is into the interfaces between, and the work of, ancillary staff gatekeeping and connecting formally autonomous decision moments and professional fields. This would enable research also to study the loosely connected interfaces between domains of professional work (e.g. between ‘legal’ work and ‘therapeutic’ work, see Chapter 5). Nothing appears formally to be decided in the interfaces and gaps between one professional sphere of work and another, where the person’s status is liminal, suspended and uncertain. Typically, these inter-professional disconnections tend to be shrugged off as merely the regrettable consequence of professional independence and divisions of labour. Yet these weakly connected interfaces, or gaps, may well be formative to the person’s experience and influential in how they present themself. So for instance, research to date has paid limited attention to people’s experience and impacts of waiting (e.g. for a court appearance:

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Carlen 1976: 18–38; Cheng et al. 2018; Feeley 1979). Likewise, research has paid scant attention to the interface between the work of different professional disciplines (e.g. legal and therapeutic); and the metaphorical and literal transportation of the person from one status to another (e.g. police suspect to defendant to offender: Tata 2019). We need to develop a research agenda to study not only the easily visible official professional work conducted at formal decision points, but also the interfaces between the work of different professions. In these interfaces, the less visible work of ancillary staff (e.g. prisoner transportation staff, security staff in court cells, clerical work, reception staff, etc.) may be more important to the person’s experience (e.g. setting the agenda of their expectations) more than hitherto appreciated. If sentencing should be understood interpretively, processually and performatively, these kinds of interactions should be central to our endeavours. So what does this mean for what policy should do? Armed with the recognition of the tendency towards regeneration of clientele, is it possible for policy to minimise rather than encourage the tendency of criminal justice to cultivate and regenerate its client group?

2.4

Parsimony and Proportionality’

The policy implication of what may seem a gloomy message about the tendency of the process to cultivate its own clientele must be an appeal to penal parsimony: modesty and caution in punishment and intervention. This means diverting as many cases as possible out of criminal justice altogether—not simply diverting them from the courts and then making ‘offers’ of case settlement which mask latent penal effects. It cannot be denied that punishment, including penal rehabilitation, may occasionally achieve positive outcomes for those subject to it. Nor should it be denied that the requirement for penal censure, accountability and incapacitation are legitimate penal rationales. However, policy-makers should be wary about using penal-welfarism as ways of ‘helping’ offenders. How ever tempting and benign the intention, punishment (including ‘helpful’ rehabilitation) always necessitates coercion. Ironically,

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[I]t has often been progressive policy-makers and practitioners who have, unwittingly, driven the expansion of penal control, partly by failing to police the boundaries between diversion and net-widening. (McNeill 2019: 141, original emphasis retained)

This demands that we recognise that community supervision is not simply welfarist, but also inescapably punitive and thus requires that we think much more rigorously about the need to envelop not only prison but also community sanctions within a framework of parsimony and proportionality (McNeill 2019: 155–177). Alerting us to the dangers of benign intervention by well-intentioned professionals (Chapters 4) should animate us to think more rigorously about parsimony and proportionality. In particular, sentences of imprisonment (and indeed all sentences, McNeill 2019) should only be imposed if the seriousness of offending demands it (Morris 1974), not because less intrusive alternatives do not seem sufficiently resourced. This though is not a matter of holding individual professionals responsible for the often impossible dilemmas they face, but a matter of collective, societal responsibility. To do this we need, as a society, to drop the counter-productive injunction of that imprisonment should only be used as ‘the last resort’

Prison as ‘the Last Resort’ Embeds Prison as the Default For decades policy-makers and many reform-minded academics have presumed that the way to reduce reliance on imprisonment is to increase the availability and promote the use of ‘alternatives to prison’. While some prescient scholars warned long ago about the dangers of ‘net-widening’ (Cohen 1985), policy officials and penal reformers continue to urge the greater use of community sentences, believing that they will be a direct ‘alternative’ to prison. Attempts to reduce the use of prison sentencing have tended to rely on attempts to ‘sell’ the benefits of community sanctions to judicial sentencers as metaphorical consumers in a competitive penal marketplace. If we can only persuade judges (and the public), so the thinking goes, that community alternatives are better in relatively less serious cases then we will see a reduction in the use of imprisonment (e.g. Canton and Dominey 2018; Home Office 1961; Mair 2016; Morgan

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2003; Morgan and Haines 2007; Raynor 1990; Scottish Executive 2000; Tata et al. 2008; Taylor et al. 2014). The general thrust of policy has been to dissuade judicial sentencers from passing prison sentences in less serious cases, by, for example, requiring imprisonment to be ‘the last resort’. The idea of last resort is widely seen as progressive. It is heavily relied upon by domestic law and policy as well as soft international law seeking to limit the inappropriate use of imprisonment and encouraging ‘alternatives’ (i.e. community sanctions). However, decades of trying this strategy has resulted in precious little success. Both the use of community sanctions and prison sentences have risen significantly. It may be that attempts to ‘sell alternatives’ to judicial ‘consumers’ may be counter-productive (Tata 2018). Rigorous international evidence is now emerging that leads us to suspect that in fact community sanctions may not reverse but, if unchecked by the principles of parsimony and proportionality, fuel the rise in the use of imprisonment (Abei et al. 2015; McNeill 2019; McNeill and Beyens 2013; Phelps 2013). Four ironies lie at the heart of the reform strategy seeking to ‘sell’ community sanctions as a way of reducing imprisonment, (posited as ‘the last resort’), rendering the strategy not only ineffective but counter-productive. The first irony is that community sanctions have tended to replace financial penalties rather than imprisonment. The second irony is that people end up in prison not because their original offence warrants it, but because they are deemed to have failed to comply with the conditions of the community order. In an effort to command the confidence of the courts by looking more ‘robust’, there is a danger that tolerance for breaching (sometimes relatively technical) requirements funnel people into prison. The third irony is that by leaving imprisonment untouched as ‘the last resort’, every other sentence appears as ‘alternative to’ the culturally central idea of prison. Securing the place of imprisonment as ‘the last resort’ may sound progressive, but it simply solidifies imprisonment as the default. When nothing else seems to be available, there is always prison. Unlike ‘alternative’ sentences, prison never has to prove itself; nor show its availability in the instant case. It does not have to be sold or marketed. It is the backstop, the default, the culturally-central idea which is always ready, dependable and available, reassuring in its familiarity. When one runs out of options, there is prison. The idea of ‘last resort’ in effect renders prison as

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the default. All other options have to prove themselves to be ‘appropriate’ and if they fail to do so, there is always prison. As one judge neatly put it: ‘really when I’m imposing short [prison] sentences, that’s when we’ve run out of ideas!’ (Scottish Government 2015: 128) Although it is an uncomfortable admission, prison continues to be used not because the seriousness of offending demands it, but because nothing else seems to be reliable. Many people who lead seemingly ‘chaotic lives’ end up in prison not because their offending is particularly serious, nor because they pose any risk of serious harm. They end up in prison because there does not appear to be anywhere else that can address their chronic physical, mental health, addiction, homelessness and other personal and social needs. While community-based sentences and the community services on which they rely are so stretched, imprisonment appears as the dependable, credible and well-resourced default. As obscene and Victorian as it is, in effect, prison becomes the ultimate last resort of the welfare state, when community services cannot cope with someone’s needs even though her offending does not warrant prison. It is an indictment of our priorities that it is not entirely uncommon for people to say that they would prefer to be in prison because they are more likely to access services and shelter than in the community. The result is self-perpetuating: resources are sucked into the seemingly credible, robust and reliable option of imprisonment at the expense of community-based programmes which are made to appear weak, unreliable and poorly explained (Hough and Park 2002). The fourth irony lies in the trope of the heroic professional, who (as Chapter 4 explains) ends up having to shoulder the almost impossible burden of collective problems. Retaining prison for nearly all cases as ‘the last resort’ means that as a society we end up using imprisonment as the back-stop for what are essentially chronic social problems. People who have committed relatively minor offences and who are not considered a danger to the public end up in prison because nowhere else can take them. This is a collective societal issue which should change. Yet, delegating collective problems to individualised professional discretion tends to frustrate attempts efforts at collective change. It is unfair and all-too-easy to blame individual judicial decision-makers (or other professionals) for coming to the sincerely held judgement that the only way to deal with the dire

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situation of an individual about whom they have to make an immediate practical decision is to use custody—because community-based services are so stretched and unable to cope with her needs. In Chapter 5 we saw how collective problems are individualised by professional criminal justice work. Professionals doing sentencing work (e.g. judges, lawyers, probation officers etc.) can do little else than individualise and frame cases as essentially failures of autonomous individualism. We also saw in Chapter 4 that sentencing professionals are delegated the impossible task of addressing what are in fact social problems. Ironically, the cultural trope of the heroic, enlightened professional requires sentencing professionals (and judicial sentencers in particular) to ‘own’ the responsibility for cases which are the consequences of collective problems. It means that sentencing professionals are held responsible for what they cannot possibly resolve. In effect, social problems are dumped at the door of individual sentencing professionals who are largely powerless to achieve positive change. So deep is the sense of professional (especially judicial) responsibility for doing justice on a case by case basis that they almost inevitably take personally any criticism of sentencing. The effect of this can mean that critical thinking about collective problems is muted. In Chapter 2 I discussed the notion of judicial discretion as sovereign dominion over one’s property. Yet at times when desirable action is thwarted by a lack of availability of community services, then we might ask whether the fixation with sovereign judicial discretion becomes little more than a flaccid virility symbol. The trope of professional discretion as sovereign dominion over one’s territory conceals and distracts attention from the underlying collective social problems which sentencing professionals cannot possibly solve. It has let successive governments off-the-hook of tackling chronic (often poverty-related) social problems. Instead, it is all too convenient (and lazy) to blame individual professionals for having, in effect, to use prison as the last line in the welfare state. So what should be done? Rather than abdicating responsibility for collective problems by dumping them at the door of the individual sentencing professional, two simple public principles should be established.

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Two Public Principles To avoid the easy allure of prison as a place of sanctuary, betterment and rehabilitation, especially in times of public spending restrictions on community justice and community services, two clear public principles should be articulated. The effect of these principles is to provide governments with a clear sense of the direction of travel in planning long-term resource allocation. The first is that imprisonment should be used sparingly and specifically only where warranted by the seriousness of offending. Presently, last resort thinking says that imprisonment can be used not because the offending warrants it, but simply because nothing else seems possible. If, as a society, we are to cease sending people to prison in effect because of their needs, then we need to invert this thinking. Imprisonment must always be justified on the grounds of the seriousness of offending. The second is that an individual’s personal and social needs should be expressly excluded as grounds for recommending, suggesting and passing a custodial sentence, even if the prison regime appears humane and rehabilitative. This means that the suffering which punishment necessitates must be limited to no more than is required by the seriousness of the offending, and cannot be justified by the claim of helping the individual with their needs. This does not prevent rehabilitative work in prison with those who have committed serious offences, but it does prohibit sending anyone to prison whose offending is minor for the specific purpose of addressing their needs because there does not appear to be anywhere in the community which can address their needs. Rather these two principles, taken together, would help to clarify and guide longer-term policy thinking. Setting a target date (for example 10 years from now) when these principles are to be implemented could concentrate the minds of service and policy leaders. It will require that, rather than resourcing prisons, we radically shift resources to the community so that people do not end up in prison for want of adequate community provision.

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167

Conclusions and Further Questions

Rather than conceiving of sentencing according to the logic of autonomous individualism, in this book I have proposed that sentencing is a social process in three ways. First, it is interpretive—isolated individual ‘things’ do not and cannot exist statically and autonomously in the reality of sentencing work. Their meaning can never be isolated from every other ‘thing’. Meaning is always constituted by relationships with other meanings. It follows, secondly, that sentencing is a process of case-making and agendasetting, rather than a momentary decision. This means that it is not only judges who do sentencing work, but all of those constructing the case. Third, sentencing is performed —there is no other essence of cases, facts or decisions apart from that performance. Performance does not necessarily mean fake expression, as if there were some true individual essence to be uncovered, but rather encourages us to think about the fulfilment of culturally expected roles and relationships in everyday practices of sentencing. What follows from this is that we need fundamentally to re-think research and policy agendas. The ways in which research and policy depict sentencing as composed of autonomous individual properties leads to sterile debates about rules and discretion as opposites—this makes sense in the abstract, but not as a portrait of everyday practices. Instead we can think about how research should portray the holistic and intuitive character of everyday work without denying the possibility of knowledge and explanation. These insights have important implications for ways of measuring and reforming sentencing. In recognising that a phenomenon such as disparity is not simply a matter of random acts of autonomous individualism but valued and valuable to practitioners, policy-makers need to recognise the utility of disparity and find ways to offer practitioners alternative means of case-control. Conceiving of sentencing as performative liberates us from the simple instrumental–symbolic binary which contorts ideas of ‘efficiency’ as little more than the number of disposals processed. Instead we can take seriously the importance of emotion and symbolic expression as core to efficiency. Indeed, the idea that individual decisions exist in more or less autonomous

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isolation from each other results in ‘compounding effects’ in which criminal clientele are set up to fail and so further embedded in the criminal justice system. Far from reducing offending, our current ways of splitting decision-making into supposedly separate individual moments, and policy and budgeting into separate individual silos, means that criminal justice and sentencing are self-reproducing. People tend to exit criminal justice despite the system, not because of it. The policy challenge is to find ways of restructuring incentives to encourage professionals to enable people exit the justice system (e.g. radically rethinking legal aid) rather than being recycled by it. All of this means that we should study much more carefully the experiences of people proceeded against. It demands that we reappraise the effects of splitting the process into autonomous individual professional domains and how that tends to regenerate ‘ideal’ penal subjects. A new research agenda should now focus on the weakly connected interfaces between the professional realms of apparently separate decision moments, and the work of ancillary staff in shepherding people from one realm to the next, and in managing their expectations. If sentencing tends to reproduce and embed its criminal clientele, what might realistically be done to minimise these effects? Enveloping policy within the principles of parsimony and proportionality, we should relinquish the idea of prison as ‘the last resort’ and instead make the collective decision that prison will no longer be used as the last line in the welfare state and only for those whose offending demands it. However, arguing for proportionality and parsimony and relinquishing ‘last resort’ are essentially about limiting penal power. We need to recognise that punishment is essentially a communicative and symbolic performance (Garland 1990). The purely instrumental idea of decisionmaking renders punishment hollow, lacking any communicative meaning. Censure and accountability are vital to the confidence of all of those taking part and the wider public that sentencing is meaningful. It follows that not only should we resist attempts to make sentencing more mechanical and remote, but also that we should develop relational approaches which take communicative performance more seriously.

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Index

A

Accountability 8, 15, 20, 23, 52, 67, 69, 111, 122, 155, 156, 161, 168. See also Openness; Reason-giving Admissions of guilt 94, 107, 112, 113, 158, 159 Aggravating factors 38, 42. See also Factors; Mitigating factors Autonomous individualism 3, 4, 8, 14, 24–26, 32, 34, 35, 37, 44, 52, 59, 76, 82–85, 89, 94, 120, 138, 145–147, 149, 156, 158, 165, 167. See also Property

C

Case-construction 59, 150. See also Typification; Typified whole case stories

Case facts 8, 55–57, 70, 76, 82, 88, 147. See also Case-construction; Factors; Typification; Typified whole case stories the particular, 55, 76, 88 Censure 61, 154, 161, 168 Community penalties 2, 110, 113 Consistency 9, 15, 18, 23, 60, 125, 126, 131, 139, 151. See also Sentencing Information Systems (SIS) disparity, 151 Criminal history. See Previous convictions Culpability 3, 62, 63, 97, 100, 105, 106, 108, 111, 112, 158, 159. See also Censure; Guilt; Remorse; Responsibility

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2020 C. Tata, Sentencing: A Social Process, Palgrave Socio-Legal Studies, https://doi.org/10.1007/978-3-030-01060-7

173

174

Index

D

G

Defence lawyers 69, 81, 82, 85, 87, 95, 96, 101–105, 108–110, 121, 125, 151, 156, 157 Defendant 40, 63, 80–82, 96, 99–102, 104–112, 114, 122, 152, 158, 159, 161. See also Offender; Person proceeded against Discretion 8, 9, 14, 15, 20–23, 25–30, 32–38, 45, 51–55, 70, 79, 82, 84, 85, 120–123, 125, 138, 139, 146, 147, 149, 151, 164, 165, 167. See also Facts; Rules Disparity 16, 150, 151, 152, 167. See also Consistency

Gender 7, 30, 34, 35, 39, 122, 146. See also Feminine; Man; Masculine; Woman Guidelines 20, 27, 59, 63, 88, 120, 122, 124, 130–132, 135, 150, 152 Guilt 59, 100, 101, 104–107, 109, 110, 158, 159. See also Admissions of guilt; Censure; Culpability; Efficiency; Guidelines; Guilty pleas; Plea bargaining; Plea decision-making; Remorse; Responsibility; Rules; Sentence discounting; Trial tax Guilty pleas 58, 62, 67, 99, 101, 108, 109, 152, 153. See also Admissions of Guilt; Culpability; Guilty; Plea bargaining; Plea decision-making; Responsibility; Sentence discounting; Trial tax

E

Efficiency 4, 9, 21, 67, 68, 102, 103, 112, 146, 151–155, 156, 167. See also Expeditious case-disposal; Guilty Expeditious case-disposal 21, 89, 97, 102, 158

H F

Factors 3, 5, 6, 8, 14, 23, 37–39, 41, 43–45, 52, 59, 61, 63, 64, 67, 70, 81, 134, 147, 149 Facts 3, 5, 7, 14, 15, 18, 20, 23, 26, 28, 29, 43, 45, 51, 53, 55–58, 60, 68, 70, 76–78, 80–82, 88, 99, 102, 110, 114, 138, 146–150, 155, 167. See also Discretion; Rules Feminine 36, 37

Humanisation 4, 95, 97, 100–102, 105, 108–114, 159. See also Humanisation work; Individualisation; Mitigation; Pre-sentence reports Humanisation work 94, 97, 98, 100–107, 110, 112, 159

I

Inconsistency 151. See also Disparity

Index

Individualisation 9, 20, 43, 62, 83, 85, 98, 103, 109, 111, 139, 159. See also Humanisation J

Judges 4, 5, 14–21, 23, 26, 27, 31, 32, 37, 38, 40, 41, 43–45, 52, 54, 59, 63, 65–67, 69, 76, 78–80, 83–85, 87, 88, 95, 96, 98–103, 108, 110, 112, 120, 122–134, 136, 137, 139, 140, 148, 149, 152, 162, 164, 167 Judicial-defensive tradition 8, 14, 17–19, 21–23, 25, 26, 28, 37, 39, 44, 65, 121, 123, 149. See also Technology Judiciary 42, 54, 124–126, 128, 129, 131, 133 L

Last resort 146, 162–164, 166, 168 Legal 2, 15, 16, 21, 27–29, 31, 33–39, 52, 54–56, 60, 61, 67, 70, 76, 81, 82, 84, 85, 95, 98, 100–102, 108–113, 128, 138, 139, 150, 151, 155–161, 168 Legal-defensive tradition 37 Legal-rational tradition 8, 14, 15–19, 21–23, 25, 26, 28, 37, 44, 65, 120, 121, 138, 149. See also Factors; Rules M

Man 7, 30–36, 146 Masculine 35–37 Mitigating factors 8, 25, 26, 37, 38, 42, 43. See also Factors

175

Mitigation 4, 86, 94, 95, 96, 97, 101, 102, 104, 106, 107, 109, 159. See also Humanisation; Individualisation; Mitigating factors

O

Offence. See also Factors course of conduct 60, 65 narrative, 60, 65, 128 offending, 60, 63, 65, 97, 101, 166 Offender. See also Factors; Offence ideal offender 97, 113, 114, 159 normalisation, 60 and offence, 8, 20, 26, 38, 52, 58, 61–64, 101, 137 Openness 15, 23 Ownership 26, 33, 79, 80, 95, 96, 111, 131

P

Parsimony. See Reducing imprisonment Performance 3, 7, 45, 70, 77, 100, 104, 107, 114, 139, 140, 147, 148, 150, 152, 158, 167, 168 Person harmed 154 Person proceeded against 96 Plea bargaining 6, 39, 153. See also Admissions of guilt; Efficiency; Expeditious casedisposal; Guilty pleas; Plea decision-making Plea decision-making 6, 111. See also Admissions of guilt; Efficiency;

176

Index

Expeditious case-disposal; Guilty pleas; Plea bargaining Pre-sentence investigation. See Pre-sentence reports Pre-sentence reports 86, 87, 94–96, 101, 102, 105, 106, 109, 122, 136, 137, 139 Previous convictions 63, 64, 126, 160. See also Offence; Offender Prison 6, 54, 97, 103, 108–110, 151, 166, 168 custody, 165, 166 imprisonment, 162–164, 166 Probation officers 6, 20, 76, 78, 83, 85, 88, 95, 108, 121, 148. See also Community penalties; Humanisation; Mitigation; Professions Professions. See also Legal; Rehabilitation; Therapeutic professional relationships 45, 82, 99, 139, 140 professional work, 9, 76, 78, 83, 88, 89, 106, 160, 161 professionals, 3, 6–8, 19, 20, 52, 58, 60, 61, 63, 64, 66–68, 76, 77, 79–88, 94–96, 98–100, 104, 105, 107, 111, 121, 130, 137, 139, 140, 150, 152, 154, 155, 157–159, 162, 164, 165, 168 Property 3, 8, 14, 21, 26, 31–37, 44, 78, 89, 145, 146, 149, 165. See also Ownership; Proprietorial; Territory Proprietorial 83, 94, 96 Proprietorial-Control Model 78 Trait Model, 76, 77

Prosecution 2, 6, 58, 60, 69, 155. See also Efficiency; Plea bargaining

R

Reason-giving 8, 15, 52, 67–69 Reducing imprisonment community penalties 2 community sanctions, 162, 163 parsimony, 162, 163 Rehabilitation 9, 109–111, 113, 161, 166 Remorse 104, 105, 106, 107. See also Guilt Responsibility 8, 33, 63, 76–78, 83–86, 94, 96–101, 104, 106, 108, 110, 113, 114, 162, 165. See also Culpability Rules 3, 4, 7–9, 14, 16, 25, 27, 28, 33, 35, 36, 38, 44, 45, 51–57, 70, 76, 78, 80, 120, 121, 123, 130, 132, 135, 136, 138, 139, 146–149, 151, 152, 167. See also Discretion; Facts generic, 77, 79, 80, 82, 150 principles, 23, 26, 29, 53, 82, 88, 150

S

Sentence discounting 109. See also Admissions of guilt; Efficiency; Guilty pleas; Plea bargaining; Trial tax Sentencing disparities 60, 151 Sentencing Information Systems (SIS) 20, 64, 65, 66, 120, 122–138. See also Consistency; Technology

Index

Social enquiry reports. See Presentence reports Social work reports. See Pre-sentence reports T

Technology 3, 9, 19, 20, 23, 120–123, 126, 132, 134, 137, 139, 140, 149 Territory 95, 165 Therapeutic 95, 108–112, 160, 161 Trial tax 58, 62, 67, 81, 99, 100, 108, 109, 153. See also Admissions of guilt; Guilty pleas; Sentence discounting

177

Typification 60, 61, 66, 136 Typified whole case stories 64, 65, 68, 147 case construction, 150 case-facts, 8, 149 typification, 60

V

Victim 38, 63, 69, 155, 156. See also Person harmed

W

Woman 7, 36