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June 3, 2010

Debate across the pond on sentencing and sentencing guidelines

A helpful reader sent me this interesting story from The Times, which is headlined "Sentencing Council: judges told that justice is safe from ‘tramline’ sentencing."  The piece is intrguing not only because it details the recent history of sentencing reform efforts in the UK, but also because it echoes the recent history and debate over US federal sentencing law and policy.  Here is how the piece begins:

It must be the toughest judicial brief going: tasked with overseeing sentencing in England and Wales, when prisons are full to bursting and there is no money to build any more.  But Lord Justice Leveson is firm about one thing: “I have not considered this as a brief to produce guidelines that are going to reduce the prison population.”

Leveson, 60, a senior Court of Appeal judge, took on the role in April of chairing the new Sentencing Council.  It has a far-reaching remit to issue guidelines and monitor the impact and cost of sentencing changes.  But he insists: “There is nothing in the legislation that requires us to have regard to resources — although ... we must spell out the resource implications of changes in sentencing practice, of new guidelines or legislation.  But we will still do what we think is right.”

The council of eight judges and six lay members will have a key input into government penal policy.  Ironically, the original plan was quite the opposite: politicians hoped to secure some control over judges’ sentencing practice.

It was concern about rising prison numbers that prompted ministers to set up an inquiry into how they could secure a better match of supply and demand in the prison system.  The report, from Lord Carter of Coles, led to a working group under Lord Justice Gage being asked to examine the American “grid” model — a tick-box approach that would have tightly fettered judicial discretion.  The idea was firmly rejected.

Instead, the Sentencing Council was proposed, to replace the old Sentencing Guidelines Council and Sentencing Advisory Panel.  But the change is not just one of name and streamlining.  For a start, judges “must follow” the sentencing guidelines, not just “take account of” as before.

Judges bristled.  How can this be squared with their independence and freedom to tailor sentences to the crime?  Leveson insists that it can; and that judges are now sanguine about the change.  “Guidelines are not tramlines.  The Coroners and Justice Act 2009 gives judges the freedom not to follow the guidelines where that is not in the interests of justice.”

What, then, will the new council achieve?  “I want to see a consistent approach to sentences — from Bristol to Birmingham, Bolton to Basildon.  I want people to feel confident with the courts system by providing clear information on how people are sentenced.”

Judges do not always make clear that the guideline is the default starting point, he says. That needed spelling out; and better reporting of the reasons for a sentence by the media.  To this end, he plans to gather data in the shape of feedback from judges.  A pilot scheme has started in four Crown Court centres.  The task is huge — the council has economists and statisticians but the prize, in terms of future targeting of resources, “could be substantial”.

I think I may have to make "guidelines are not tramlines" my new sentencing reform mantra.

June 3, 2010 at 06:01 PM | Permalink


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