What should the new Sentencing Commission do?

Around the English-speaking world, public dissatisfaction with and cynicism about sentencing is the most important political driver of reform. In Scotland, polling confirms that people want “tougher” punishment of offenders. Judges also receive poor public ratings (the worst of the main criminal justice groups). Politicians are not wrong to speak of a crisis of public confidence. But exactly what do people want and in what kinds of cases?

Recent focus group research using case vignettes reveals a more intriguing picture, one in line with findings from other countries. The sentences people would like to pass for specific kinds of cases are, in fact, generally similar to the kinds of sentences the courts do pass. Importantly, however, people strongly believe and estimate that the courts are much more lenient than is the case, and were genuinely surprised to learn the true position.

This suggests that when engaged with specific kinds of cases the public is not the bloodthirsty mob normally presumed by politicians and tabloid editors. It also suggests that public cynicism can be explained in large part by a lack of accurate knowledge. However, that does not support the view that public confidence should be ignored (or dismissed) in the making of penal policy. Whether we like it or not, public cynicism is driving the criminal justice agenda and politicians will increasingly bid against each other to be “tougher on crime”. The result will be increasingly ill-thought-out policy and louder calls to control a supposedly out-of-touch judiciary. If we value the independence of the judiciary as an institution, and wish to achieve a properly informed and reasoned sentencing policy, we have to look much more seriously at trying to dispel some of the basic myths on which public cynicism feeds.

The need for a media strategy

This needs to be done at a broader level than simply responding to media criticism of individual cases. It would mean some kind of information office on matters of penal policy. Such an office should be responsible for disseminating clear, concise and media-friendly information about crime and punishment, and for explaining how the system works. For obvious reasons, such an office should not be attached to an overtly political arm of the state. Thought out properly, this would not compromise judicial independence but would be part of a strategy to shore up that independence by working to inform public knowledge and dispel basic myths.

Of course, dispelling myths about criminal justice is not as easy as selling baked beans: it would have to be done both strategically and imaginatively. Yet there is little alternative. For the Commission to ignore (or dismiss) public misperceptions would be to build any otherwise sensible proposals in quicksand. All legal professionals and academics have a stake in countering public misinformation and cynicism. It is imperative that the Commission places the need for better public information (delivered strategically) at the very heart of its thinking. Other countries have had to face this issue and Scotland can learn from their experience.

Particular issues

Early release from custody. The operation of parole, and especially remission, is confusing to the public because it appears to be a deceit: the custodial sentence passed by the court is rarely served in full. One superficially appealing option is to abolish early release in favour of “honesty in sentencing”. In itself this sounds attractive, but without a corresponding reduction in the use of imprisonment our overcrowded jails will simply be unable to cope. Scotland would have no choice but to go down the Californian “warehousing” road of spending more on imprisonment than on education. If we do not wish to do that, it will only be possible to have some of the virtues of “honesty in sentencing” if we take a hard look at who we send to prison and whether they all need to be there.

Overall use of imprisonment. The Commission will have to consider the use of imprisonment, especially for non-violent property offences, non-payment of fines, and those on remand. Around 82% of custodial sentences passed are for six months or less and there is little useful rehabilitation which can be done in that time (indeed often the reverse). Prison is also several times more expensive than any non-custodial sentence: a six month custodial sentence costs, on average, around £15,000. Politically, however, there is little point in recommending the reduction in the use of short prison terms without a strategy to improve public knowledge of and confidence in sentencing. There are some grounds for optimism: the Justice 1 Committee research shows considerable public support for non-custodial penalties, especially if visible, and reparative in nature. Generally, people were also aware that prison tends not to reduce crime in itself and were very surprised to learn the cost compared with community-based sentences.

Sentencing of women. There is an increasing realisation that, partly due to childcare responsibilities, the sentencing of women has a differential impact. Many sentencers try to take account of this, of course, but the Commission might consider ways of encouraging all sentencers to do so as a matter of routine.

Guilty pleas. Should early pleas of guilty be encouraged by an explicit policy of sentence reduction? Traditionally, the judiciary in Scotland has resisted this. Recent research in the summary courts suggests that sentences tend not to be reduced for guilty pleas (though, to be sure, this question needs to be researched more specifically). Many people plead guilty partly because of an apparently mistaken belief that they will receive a lighter sentence. From a client perspective, is this satisfactory?

Interestingly, the criminal appeal court recently sought to encourage greater transparency in the extent to which a sentence is likely to be reduced in the event of an early guilty plea (Du Plooy v HMA, 3 October 2003: see especially para 25). The Commission should examine ways of trying to ensure that we have a system in which the accused has the chance to make a well informed choice as to how to plead.

Techniques to shape decision-making

The ability to appeal against sentence in individual cases is sometimes cited as the mechanism which regulates sentencing satisfactorily. However, in itself, the appeals system is a relatively weak, ad hoc, and expensive method. Other techniques (which may be combined) have been used around the world, some with more success than others.

A. Mandatory sentencing. This policy (e.g. “three strikes and you’re out”) is neither as tough nor as clear as it sounds and should be resisted. In reality mandatory sentencing simply shifts discretion from judges to prosecutors and the police, rendering the unofficial practice of charge bargaining more important. Its mechanistic rules easily result in anomalies, substantive injustices and also tend to widen social inequalities.

B. Legislatively-derived guidelines. Numerical Guidelines have been popular in the US. By using a grid, sentencers score the offence along one axis and the offender’s criminal history along another, to arrive at a “presumptive score”. Although the scope for departure from the presumptive sentence varies between states, numerical guidelines suffer from many of the same problems as mandatory sentencing and tend to spawn an enormously complex system.

Narrative Guidelines have been developed and implemented in a number of European countries but have met considerable problems, most famously in England and Wales where the 1991 Criminal Justice Act was met with a furore of criticism from the tabloid press and resistance and criticism from the Lord Chief Justice.

C. Appeal court guidelines. The criminal appeal court in Scotland has the power to issue guidelines to sentencers, but has been very loth to do so. England and Wales has been developing this practice (in which the guidelines are “starting points”) since the 1980s. Importantly, the development of guideline judgments is now supported by a Sentencing Advisory Panel, which can consider the evidence on which sentences tend to be more effective in reducing reoffending; the Panel may also canvass public attitudes in particular kinds of cases. However, there is some evidence to suggest that, on its own, compliance with guideline judgments is limited. They also tend to be more immediately applicable to single-offence cases.

D. Sentencing information system. Ten years ago the High Court took the initiative, with a team from Strathclyde University, to develop its own reasonably high quality information system. This has recently been implemented in the High Court. An information system (combined with other resources) could also be of use to the summary courts, especially where the crucial decision to impose a custodial or community-based sentence is in the balance.

Knowledge of sentencing practice

If we are to strive for a penal policy which is reasoned and evidence-based, we need good quality information available not only to the public but to everyone engaged in thinking about policy. Although there are now annual reports on sentencing under section 306 of the Criminal Procedure (Scotland) Act 1995, the quality of this information is poor because it fails to control adequately for case variables. Only one small study (10 years ago) of sentencing by sheriffs has controlled for case variables.
Unless and until we can improve the quality of information about what goes on in our courts (for the general public, MSPs, policy-makers, and most importantly the media) we will be mired in an ill-informed and increasingly unproductive debate, doomed to repeat the mistakes of some other countries. The Sentencing Commission (and associated discussion) presents Scotland with a unique opportunity to achieve a policy which, through a strategy to secure public confidence, has the chance to endure.

Cyrus Tata is Director of the Centre for Sentencing Research and Senior Lecturer in Law, Strathclyde University