Sentencing Reform: Panels, Commissions, Councils and

GuidelinesProfessor Neil Hutton

Centre for Sentencing Research

University of Strathclyde

Selected Chronology of Sentencing Reform

1980 Minnesota Sentencing Guidelines1984 US Sentencing Reform Act 1987 Canada Sentencing Commission Report1987 Canada Sentencing Information System1990 New South Wales Sentencing Information System1998 England and Wales Sentencing Advisory Panel2000 South Africa Law Commission Sentencing Framework Bill2002 Scotland Sentencing Information System for the High Court 2002 New South Wales Sentencing Council2003 Victorian Sentencing Advisory Council2003 Sentencing Commission for Scotland2003 England and Wales Sentencing Guidelines Council2007 New Zealand Sentencing Council Act

Reasons for Sentencing Reform• Criminal Sentences: Law without Order. Marvin Frankel (1972)• Perceived lack of consistency• Unwarranted disparities (racial bias)• Indeterminacy (Truth in Sentencing)• Lack of Legislative Input in Sentencing Policy(Democratic deficit

Ashworth)• Inadequacies of Judicial Guidance• Diminishing Public Confidence in Courts• Law and Order politics• Accountability and Transparency• Lack of predictability makes management of penal resources

difficult• Fiscal pressures on criminal justice budgets/Cost effectiveness

Who has, or should have, authority over sentencing?

• Decide on sentence at first instance

• Decide on sentence on appeal• Issue sentencing guidelines for

particular category of offence• Issue sentencing guidelines on

types of sentence• Issue sentencing guidelines on

general principles• Develop sentencing policy• Ensure efficient and effective use

of penal resources• Ensure that supply and demand

for prison places are balanced

• Source Ashworth 2008

• Trial judge• Appeal Court judge• Appeal Court Judge Sentencing

Council• Sentencing Council• Sentencing Council• Sentencing Council• Sentencing Council• Sentencing Council

Government/Executive/Legislature• Sentencing Council

Government/Executive/Legislature• Sentencing Council

Government/Executive/Legislature

Judicial Independence

• “Judges should decide individual cases impartially without interference from or control by any other branch of government. However, it does not follow that it is exclusively for judges to determine the details of the overarching framework. If the legislature is constitutionally able to prescribe maximum, mandatory or mandatory minimum penalties, it is equally constitutionally able to dictate the nature or range of penalties that ought to be applied in the ordinary run of cases. The fact that it has not traditionally done so has been a matter of political preference, not constitutional principle.”

Source: Young 2008 New Zealand Law Reform Commission

Judges as Policy Makers?

• Judges should not make social policy, that is a matter for Parliament and the executive.

• Judicial decisions should not have to take into account issues of cost effectiveness

• Judges make sentencing policy de facto through their decisions

• Like other social goods such as health and education, punishment is not free. Government has a responsibility to ensure that scarce penal resources are allocated to derive maximum efficiency and effectiveness

Why have Sentencing Institutions?

• Sentencing is too complex to allow for legislative guidance

• Institution allows judges to work with others to develop workable guidelines

• Provides a forum for the development of rational policy, one step removed from the febrile world of law and order politics

What kind of Guidelines?

• USA numerical grids

• Australia advisory councils

• England Narrative guidelines incremental

• New Zealand Comprehensive narrative guidelines

• South Africa Guidelines narrative and numerical

• Scotland ?

Do Guidelines Work?• US Sentencing Commission

• Insufficiently insulated from Govt• Guidelines too complex• Insufficient room for discretion• Unjustified increase in sentencing

severity

• Stith and Cabranes 1998• Gertner 2008

• Minnesota Guidelines

• Reduced unwarranted disparity• Retained sufficient judicial discretion to

consider case facts• Controlled prison growth and avoided

overcrowding• Set priorities for use of limited prison

capacity• Created sentencing jurisprudence

through appellate review which in turn contributed to development of sentencing policy by Legislature and Commission

• Promoted transparency in sentencing

• Frase 2008

Proposals for a Scottish Sentencing Council

• Membership• Lord Justice Clerk• High Court Judge• 2 Sheriffs• Justice of the Peace or Stipendiary Magistrate• Prosecutor• Constable• Advocate• Solicitor• Person with knowledge of issues faced by victims of crime• 2 lay persons

• Judicial and Legal members appointed by Lord Justice General• Lay members appointed by Scottish Ministers

Provisions for Scottish Sentencing Council in Criminal Justice and

Licensing (Scotland) Bill• 1. Purposes and principles of sentencing

• 2 Guidelines to take precedence over above.

3 Objectives

• Promote consistency

• Assist development of policy

• Promote greater awareness and understanding of sentencing policy and practice

5 Functions of sentencing guidelines

• Principles and purposes of sentencing

• Sentencing levels

• Sentences for particular types of offence or offender

• Circumstances in which guidelines may be departed from

5 contd

• Guidelines must include

• Assessment of costs and benefits

• Likely effects on prison population

• Likely impact on demand for community sanctions

• Likely impact on criminal justice system more generally

6 Procedure for Publication and Review of Guidelines

• Council must publish draft

• Must consult:

• Scottish Ministers

• Lord Advocate

• Such other persons as appropriate

• Must include assessment of impacts

• In finalising guidelines Council must “have regard to comments made in consultation”.

7 Effect of guidelines

• Court must have regard to applicable guidelines

• Reasons must be given for departures from guidelines

8 Ministers Power to request review

• Ministers can request review

• Council must have regard to this request

• Reasons must be given if Council decides not to comply with the request

High Court’s Power to request review of Guidelines

• High Court may refer guidelines to Council and ask for review when:

• High Court decides not to follow guidelines• High Court concludes that guidelines do not deal

adequately with a significant issue raised by an appeal.

• High Court must provide reasons and the Council must have regard to these

SCS to provide information to Council

• SCS must provide Council with such information as it may reasonably require for the purposes of its functions

• Information must be provided in such form and by such means as the Council may require.

Challenges for a Scottish Sentencing Council

• Is the proposed relationship between the Council, the Scottish Ministers and the Court of Appeal correct?

• Should the executive have a non-voting observer on the Council as in England and Wales?

• Is the proposed scope of the guidelines correct? For example, does the Council have the power to authorise an inaugural set of comprehensive guidelines or is the intention that an incremental approach similar to England and Wales be adopted?

• Is the existing data collected by SCS adequate to support the functions of the Council?

• What information will be necessary to assess the costs and benefits of proposed guidelines? Is there adequate data currently available to evaluate the impact of proposed guidelines on prison or community sanctions?

• What process should the Council adopt to decide on the prioritisation of its work?

• Is there scope within the provisions of this Bill for adequate account of criminal history to be taken into account in the drafting of guidelines?