Decisions to Imprison

Court Decision-Making Inside and Outside the Law

Rasmus H. Wandall

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317153870
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Rasmus Wandall uses quantitative and qualitative methods from studies carried out in Denmark, to address the formal and informal norms and ideologies that are used to generate decisions to imprison. Focusing on the operations of the courtroom participants, his work investigates how court decision-making is organized to allow the sentencing procedure to be open to more than its formal legal framework, while at the same time keeping the sentencing within the boundaries of law and legal validity. The author uses the theory of law's operational closure, developed by Niklas Luhmann. The theory provides an advantageous point of departure to capture the close and subtle interactions between law's need for validity and for contextual openness in every legal operation - including court decision-making.

Chapter 1

Introduction

Sentencing an offender to imprisonment is a hard penal sanction. Whether it is for a long or a short term, imprisonment effectively excludes an offender from public life and subjects him or her to physical, social and economic hardship and stigmatization. That being so, we must continually enquire into its use and legitimacy. This book reports on a study of when, with what justification and how Danish county courts sentence criminal offenders to imprisonment.

Most cases in which there is authority to impose imprisonment are handled in the lower courts. In Denmark this means the district courts. In contrast to the lower courts of several other jurisdictions, in Denmark this court level brings a high degree of formality to the processing of criminal cases. A judge presides and a prosecutor and a defence attorney present and argue the cases. If the defendant does not confess fully to the charges, two lay judges participate as well. Cases cannot be closed on the basis of a plea agreement; an open court hearing must be carried out. From a legal point of view, the choice to impose immediate imprisonment is guided by clear and relatively simple rules. The Penal Code stipulates criminal limits and relevant sentencing criteria, and appellate court practice guides the sentencing by providing examples of how cases are typically sanctioned. The severity of crime, the prior criminal record, the age and the social circumstances of the defendant are examples of factors that the court shall take into consideration when deciding to imprison. It is through this formal legal framework of sentencing that students, practitioners and scholars alike are taught about sentences for imprisonment and where political discussions of sentencing and imprisonment take place.

The formal legal framework gives us a way to assess the legitimacy of legal norms and the coherence of legal principles surrounding the use of imprisonment. Yet it does so only from a formal legal point of view. Anyone who steps inside the courtroom of an ongoing hearing will see that the practical reality is quite different and far more complex. No cases are alike. A case of violence does not merely represent a simple or aggravated violent act and not merely two blows with a fist. It may represent the narrative of a broken partnership, of a disagreement or may concern the beating of a stranger in a public street. The prosecution may prosecute a single count of charge, it may prosecute thirty or even sixty or more. The defendant may be present in the courtroom all by him- or herself, or he or she may be accompanied by his or her mother, father, girlfriend or friends. There may be witnesses, including a victim and their families. Social advisers and representatives of the Department of Corrections may be there and may take part in the proceedings in a variety of ways. Court hearings of comparable crimes last from 15 minutes to several days. The defendant may be held in pre-trial custody. He or she may look like someone who regularly spends time in court – and in prison – or may look like he or she has never set foot in a courtroom before. Judges, prosecutors and defence attorneys engage in a legal discourse, but they also send small hints, like stern looks to each other, that only insiders understand. And perhaps most importantly, professional courtroom participants are oftentimes in silent agreement as to how cases should be constructed and processed. In contrast to what the law symbolically tries to impose on the decision-making process, decision-making is not so much a conflict between prosecution and defence. The formal legal framework represents one, but only one point of view of sentencing decision-making in court.

This insight, that the actual handling of cases in routine operations generate other and more complex norm-systems than what formal organization can contain, is well established in a whole generation of North American court studies. For example, we know from the traditional court studies by Abraham Blumberg, James Eisenstein and Herbert Jacob, and Malcolm M. Feeley that the daily handling of criminal cases leads to the emergence of independent routines and value systems in processing and sentencing cases that are distinct from the formal legal organization of decision-making. The processing of decision-making in court takes on a world of its own. More generally we know from organizational sociology that ‘the more fully developed its social structure, the more will the organization become valued for itself, not as a tool but as an institutional fulfillment of group integrity and aspiration’ (Selznick 1984, 15). In light of the widespread efforts in contemporary criminal justice systems to formalize and standardize goals, programmes and operations, such insights are as important as ever. A comprehensive discussion of why imprisonment is imposed as a penal sanction, how and to what extent, requires an understanding of the level of actual daily decision-making. The first aim of this book is to capture the contemporary normative and ideological structures of decisions to imprisonment in actual decision-making in Danish county courts. Compared to the observation that we know relatively little about the social practices of sentencing in a place like the United Kingdom (Hutton 2006), we know close to nothing about sentencing decision-making in a Scandinavian country like Denmark. Standing out from other Western countries in its more restrained punitive sensibilities and its stronger welfare tradition, and standing out from the United Kingdom and the United States of America in its stronger allegiance to continental legal traditions, it is of obvious interest to make this setting of sentencing decision-making part of the discussion of sentencing in general.1

By addressing the issue of courts’ actual sentencing practices, the book also engage in legal sociological questions about the relationship between law and its context. Traditional sentencing studies are typically formulated as empirical challenges to a formal legal assumption of decision-making. In this respect traditional studies are in line with the socio-legal traditions of Roscoe Pound and Eugen Erhlich, building upon a gap between legal norms and action norms. But focusing on this gap between law and action causes sentencing studies to invest less energy in understanding the shapes of law and in analyzing the ways in which court decision-making is trapped in the law, as Hadar Aviram describes it (Aviram 2005). Even though decision-making is different and more complex than a formal legal viewpoint can contain, we should not forget that sentencing decisions are typically acted upon as a legally valid practice. Cases are typically closed as legally valid, few cases are appealed and of those that are, few are overturned and nearly none on legal grounds. Even though actual decision-making is different and more complex than the formal legal framework, the judiciary, the legal profession and the criminal justice system act on sentencing decisions as legally valid decisions. With the words of Doreen J. McBarnet we may describe the problem of traditional sentencing studies that they barely touch upon ‘the nature and role of law itself’ (McBarnet 1981, 4). The role of law itself and the observation that lawyers and the legal system observe ordinary court decisions as legally valid are not integrated in traditional socio-legal sentencing studies. What remains is essentially a sociology of courts. Accordingly, the second aim of this book is to investigate how court decision-making is organized to allow the sentencing decision-making to be open to other structures than its formal legal framework, while at the same time keeping the sentencing within the boundaries of law and legal validity. For this endeavor, I approach the study with the theory of law’s operational closure developed by Niklas Luhmann. The theory, which I describe in the next chapter, excels in capturing the close and subtle interactions between law’s need for validity and the need for contextual openness in every legal operation – including court decision-making. Luhmann’s chosen terminology for this mechanism is legal closure and openness. I shall use the terms ‘legal closure’ and ‘contextual openness’. Contrary to the construction of traditional gap studies the theory allows us to conceptualize decision-making as accommodating to both legal formalism and contextual openness and adaptation. The book shows how this duality between law’s closure and the contextual openness plays out. Clearly, a concern for how law relates to its environment extends far beyond sentencing law and has a legal philosophical dimension. What constitutes legal validity? How does law embrace non-legal concerns, arguments and stimuli? Yet, the question of how law relates to its environment is also a very practical one that is played out every day in and around courtrooms. The book follows this practical angle to see how the incommensurable nature of law and its context is handled in the daily decision-making of a county court.

There is limited knowledge of how courts practise sentencing in Denmark. Sentencing decision-making leading to imprisonment has only been the object of three major studies in Denmark since 1950. They were all quantitative and aimed at describing sentencing determinants in actual sentencing practice. The first major study was carried out by W.E. von Eyben and published in 1950 (von Eyben 1950). The study investigated the choice of sanction and severity of sentence in the criminal cases handled in a number of district courts and the two high courts. Furthermore, the study included a large interview survey of district and high court judges engaged with sentencing. The most important finding of von Eyben was that sentencing was the product of two main factors: the severity of crime and the prior sentenced crime (von Eyben 1950, 210). Other factors had only limited effects on sentencing decisionmaking (von Eyben 1950, 224). Only the judge surveys showed that judges also responded to factors such as youth and old age in their sentencing decision-making.

In contrast to the statistical analysis of the actual case files, the judge surveys showed extensive variations between courts, both in sentencing levels and in the choice of sanction.

The second major study was carried out in 1982 by Jørn Vestergaard (1982). He analyzed sentencing decisions in three nested samples of cases: 2902 criminal cases of varying criminal offence category, 1538 cases of property crimes and 819 cases of theft. Most importantly, using multivariate statistical methodology he found that variation in the nature and severity of crime could not explain decisions to impose immediate imprisonment, whereas the defendant’s prior crimes and sentences, his or her status as foreigner, the fact that cases were appealed, and the fact that cases were tried as full layman trials rather than summary trials all contributed to explaining the decisions to impose immediate imprisonment.

A third and recent empirical study that sheds light on decisions to incarcerate in Danish courts is Kyvsgaard’s (2003) study of the use of imprisonment, community service and other suspended sentences in 1996. The sample included 1472 cases in which the question of community service had been raised. Using multivariate statistical methodology, Kyvsgaard among others tested the relative relationships between case factors and decisions between incarceration and community service. She found that the sanction choice correlated significantly only with the legal offence category, prior sentenced crime of the defendant, additional counts in the case and defendant’s full confession. Age, sex and the number of defendants in a case were all unrelated to the decision-making.

In pursuance of the two aims of this book, I look into the sentencing practices of courts by use of quantitative as well as qualitative methodologies. I pose two corresponding questions: First, which sentencing factors condition decisions to incarcerate in Danish county courts? The question is designed to statistically identify the factors that bear on decisions to incarcerate. In line with earlier studies in Denmark and in other Scandinavian countries, the description is horizontal in that it examines a high number of cases from a number of courts. Empirically, the investigation is based on multivariate statistical analysis of 500 residential burglary and violence cases in five county courts. The second question to be addressed is how decisions to imprison are socially constructed in the everyday operations of a county court. This question is designed to describe the social structures through which decisions to incarcerate are constructed in the everyday decision-making of a county court and how the decision-making is managed to construct decisions both as legally valid and as sensitive to the context in which they are reached. Empirically, this part of the study is based on three and a half months’ daily participant observations in one larger Danish county court and interviews with the key courtroom participants. The product is a more vertical and deeper description of decisions to incarcerate. It generates more subtle understandings of the meaning, structures and processes through which decisions to incarcerate take place. The two research questions are not designed to test the answers of each other. Their respective datasets prevent this. The aim of involving a dual methodological approach is rather to arrive at a more nuanced understanding of decision-making practices.

Criminal sentencing is part of a longer selection-process spanning from the stages of issuing a summons or making an arrest to sentencing. Understanding the full process of sentencing requires embracing this larger decision-making process involving other and different decision-making agencies (Hood and Sparks 1970). The downside of such broadness in scope is that the understanding of the individual decisions in that process thins out. The present study focuses on decisions to incarcerate in judicial courts and makes no claim to capture the entire length of selection process from summons/arrest to criminal sentencing. The focus allows the study to investigate sentencing from a variety of methodological perspectives and build a deeper socio-legal analysis.

The book describes the ordinary use of imprisonment as a penal sanction and not the wider use of incarceration as a form of control. The study does not include the use of pre-trial custody or the use of incarceration of defendants of a mental handicap or a psychiatric diagnosis; neither as an administrative imprisonment or as outcome in criminal cases. Similarly, imprisonment used as safe custody is not included. Throughout the book the words incarceration and imprisonment are used as synonyms. Both are use to express penal sanctions of immediate imprisonment or unconditional imprisonment.2

Since the book’s empirical research was carried out, two major events have occurred in Denmark. First, a number of formerly unwritten but judicially relevant sentencing criteria have been codified in the Penal Code, and the principle of ‘legal consistency in sentencing’ has been incorporated in the Penal Code as an overarching principle of sentencing decision-making. The codification unmistakably creates a higher degree of formalization of sentencing and a stronger democratic legitimacy to sentencing decision-making. On the other hand, the formalization was not intended to and in fact did not change the legal framework of sentencing. It is further described in Chapter 3. Second, a long awaited and monumental reform of the Danish police and court system was adopted as Act No. 538 on June 8, 2006 and is in the process of being implemented. Among others, the reform changes the composition of district courts. In the future, there will be only 24 district courts instead of the earlier 82. The standard new district court will have six to eight judges appointed. Before, the number of judges varied significantly. This effectively means that more courts will have the physical and personal capacity of the district investigated in this book’s qualitative study. Furthermore, the reform changes the handling of jury trials. The high courts no longer function as the courts of first instance in jury trials. Instead, jury trials are held in district courts with the possibility of appeal to the high courts. The practical implication of this change is that each new district court will have to make the physical, the judicial, and the lay arrangements for processing jury trials. Yet, the forms of the more numerous summary trials and full layman trials, as studied in this book, remain the same.

A number of new alternatives to imprisonment have also been introduced since the book’s empirical studies were carried out. Most importantly perhaps, electronic monitoring has been introduced as a possible alternative to immediate imprisonment.3However, as yet, the choice of this new sanction is not administered by the courts but by the Department of Corrections, and only after the courts have sentenced an offender to immediate imprisonment. As of this time, there are no studies of how the sanction is used.

A Brief Overview of the Book

In summary, the book reports on empirical studies of the normative and ideological structures of decisions to imprison in the daily business of courts, and it explores the ways in which courtroom decision-making constructs decisions to be both products of the legal framework of sentencing and of the context in which the decision-making is carried out. The book is divided into ten chapters.

Following this introduction, Chapter 2 introduces the socio-legal theoretical framework of the book. Whereas traditional empirical sentencing studies show limited interest in the roles and shapes of law in court decision-making, Chapter 2 defends the view that a fuller understanding of actual practices of court decision-making requires an appreciation of the socio-legal duality of daily court decision-making. While it may be that sentencing decision-making in their actual practices subvert a formal ideal of law, it normally also upholds an ideal of law in the very same cases. Niklas Luhmann’s theory of law’s operational closure is introduced as an advantageous point of departure to conceptualize this duality of court decision-making.

Chapter 3 lays out the guiding framework of sentencing and describes decisions to imprison from a legal point of view. The short story is that the choice of imprisonment is mainly a balancing act between individual and general preventive concerns. Courts are expected to be driven mainly by the factors of type and severity of crime, the prior criminal record and mitigating personal and social circumstances of the defendant. Sentences of imprisonment are not constructed as sanctions against offenders who do not plead guilty or against offenders who do not assist in the speediness of the procedure, and sentences of imprisonment are not constructed as sanctions against or remedies against offenders with particularly weak personal and social circumstances. Unlike several other countries, a risk discourse is not formally endorsed on this level in Denmark (yet). Plea and charge bargaining is not generally allowed.

Chapter 4 moves from a legal point of view to a sociological point of view. Turning to the first empirical research question of the book, the chapter provides a statistical analysis of relevant and irrelevant factors in county courts’ decisions to impose immediate imprisonment in cases of residential burglary and in cases of violence. To a large extent the findings correspond to the formal legal view held that sentencing to imprisonment is a product of the severity of crime and the prior criminal record of the defendant. Only in residential burglary cases can it not be shown that an increase in the severity of crime prompts imprisonment. Importantly, the findings support the view that the courts are strongly guided by the personal and social profiles of defendants in their sanctioning and hold different standards of the sanction choice depending on the procedural form of trial. These statistical findings provide reliable information on correlations between both case and procedural factors and sentencing outcome in the courts under study, but leave us with little understanding of how these factors matter in the processes of daily decision-making. In order to place the analysis in greater proximity to the daily processes of court business and to address the second research question of the book, Chapters 5 to 7 present decisions to imprison as they are constructed in the daily life of a larger Danish district court.

Chapter 5 describes the qualitative data and methodology and introduces the court under study and the general traits of...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• Acknowledgements
• List of Abbreviations
• 1 Introduction
• 2 Inside and Outside the Law
• 3 The Legal Framework of Decisions to Imprison
• 4 Decisions to Imprison: A Statistical Point of View
• 5 Description of Court and Case-handling
• 6 Organizing Courtroom Communication
• 7 Decisions to Imprison in the Courtroom
• 8 Ideologies of Imprisonment in the Courtroom
• 9 Decisions to Imprison Inside and Outside the Law
• 10 Closing Perspectives
• Appendix One Statistical Data and Methods
• Appendix Two Description of Variables
• Appendix Three Court Variation in Decisions to Imprison
• Appendix Four Qualitative Data and Methodology
• References
• Index