1 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 âdaily routine of sanctioning and institutional practice which does most to create a particular framework of meaningâ (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 lawâs 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 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 âuniverseâ comprising separate sentencing âthingsâ: 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 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 âidealâ criminal clientele.
However, this dominant conception of sentencing based in autonomous individualism, (which is itself a socially constructed idea of the ânaturalâ universe), ignores the reality of the relational self (e.g. Nedelsky 2011). Sentencing actors (including âthingsâ 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 decision-making enables us to sketch out new agendas, for example in the attempt to reduce the use of imprisonment and rethink the meaning of âefficiencyâ.
This conception propels us beyond thinking merely of sentencing âin contextâ. âIn contextâ approaches may be a step forward from formalistic ones, but they still posit decision-making as an individualistic activity. âIn contextâ approaches tend to treat the autonomous individual judge 1 as the starting point who works on autonomous official rules, albeit buttressed by considerations which are in some way âexternalâ 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 bookâs cover, everyone and every âthingâ is relational.
In particular, three consequences flow.
2 Sentencing as a Social Process: Three Key Qualities
Sentencing is interpretive, processual, and performative. To whet the readerâs app...