Criminal Sentencing as Practical Wisdom available in Paperback, eBook
- ISBN-10:
- 1509933069
- ISBN-13:
- 9781509933068
- Pub. Date:
- 10/31/2019
- Publisher:
- Bloomsbury Academic
- ISBN-10:
- 1509933069
- ISBN-13:
- 9781509933068
- Pub. Date:
- 10/31/2019
- Publisher:
- Bloomsbury Academic
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$60.95Overview
How do judges sentence? In particular, how important is judicial discretion in sentencing? Sentencing guidelines are often said to promote consistency, but is consistency in sentencing achievable or even desirable? Whilst the passing of a sentence is arguably the most public stage of the criminal justice process, there have been few attempts to examine judicial perceptions of, and attitudes towards, the sentencing process.
Through interviews with Scottish judges and by presenting a comprehensive review and analysis of recent scholarship on sentencing - including a comparative study of UK, Irish and Commonwealth sentencing jurisprudence - this book explores these issues to present a systematic theory of sentencing. Through an integration of the concept of equity as particularised justice, the Aristotelian concept of phronesis (or 'practical wisdom'), the concept of value pluralism, and the focus of appellate courts throughout the Commonwealth on sentencing by way of 'instinctive synthesis', it is argued that judicial sentencing methodology is best viewed in terms of a phronetic synthesis of the relevant facts and circumstances of the particular case. The author concludes that sentencing is best conceptualised as a form of case-orientated, concrete and intuitive decision making; one that seeks individualisation through judicial recognition of the profoundly contextualised nature of the process.
Product Details
| ISBN-13: | 9781509933068 |
|---|---|
| Publisher: | Bloomsbury Academic |
| Publication date: | 10/31/2019 |
| Pages: | 304 |
| Product dimensions: | 6.69(w) x 9.61(h) x 0.62(d) |
About the Author
Table of Contents
Preface and Acknowledgements vii
1 Introduction 1
Previous Studies of Judicial Decision Making in Sentencing 1
'Protecting the Mysteries of their Craft'-Sentencing Research in the English Courts 2
Previous Research on Scottish Judges and Sentencing 6
'The Human Face of Judging'-Sentencing Research in other Commonwealth Jurisdictions 8
Conclusion 10
2 Context and Methodology 13
The Importance of Interviewing Sentencers 13
Methodology 13
Respondents-Judges and Sheriffs 13
Gaining Access 14
The Judicial Interviews 17
Thematic Analysis: The Use of Grounded Theory 17
Coding the Data 19
Data Saturation 20
Transcribing the Interviews 20
Some Cautions on the Use of the Interview Data 20
The Use of Case Law 21
Conclusion 23
3 The Instinctive Synthesis and Wise Blending of Penal Aims: A Comparative Study of Sentencing Methodology 25
Introduction 25
Sentencing Methodology in Canada 25
The Traditional Approach to the Sentencing Task 25
'A Very Human Process'-R v Hamilton and the Modern Methodological View 28
Sentencing Methodology in Australia 29
The Instinctive Synthesis versus the Two-Stage Approach to Sentencing-the Decisions in Williscroft and Young 30
The Instinctive Synthesis Affirmed-the Majority Judgment in Markarian v The Queen 33
The Dangers of the Staged Approach and the Primacy of Judicial Discretion-Justice McHugh's Judgment in Markarian 35
The Need for Individualisation 36
The Likelihood of More Punitive Sentences 37
The Illusory Nature of the Staged Approach 39
Considerations of Proportionality 40
The Superiority of the Instinctive Synthesis 40
The Importance of Judicial Instinct 41
A Need for Greater Transparency? Justice Kirby's Dissent in Markarian 43
Developments Post-Markarian-the High Court's Continued Emphasis on the Instinctive Synthesis 45
The Instinctive Synthesis in the Scottish Courts 46
The General Approach 46
A Cautionary Lesson-the Decision in Petch and Foye 47
Conclusion 49
4 Equity and the Rule of Law in Sentencing 51
Introduction 51
The Instinctive Synthesis and the Rule of Law 51
The Real Meaning of 'Instinctive Synthesis' 51
The Rule of Law 54
The Rule of Law and Judicial Discretion 55
In Defence of the Instinctive Synthesis-Equity and the Rule of Law 57
Equity and a Virtue-Centred Theory of Judging 58
Reconciling Equity in Sentencing with the Rule of Law 60
Judicial Objectivity, the 'Postmodern' Sentencer and the Concept of Habitus 62
Equity in the Sentencing Practice of the Scottish Courts 64
Statutory Minimum Sentences-Judicial Views on Drugs Offences 64
Statutory Minimum Sentences-Shrieval Views on the Scottish Parliament's Aborted Proposals for Minimum Sentences for Knife Possession 66
The Iniquity of Mandatory Minimum Sentences 69
Culpable Homicide 72
Serious Assault 73
Sexual Offences 76
Leniency and Mercy in Sentencing 79
Exercising Leniency in Sentencing 79
Mercy in Sentencing 80
A Place for Mercy in Sentencing? 82
The Application of Mercy 83
Judicial Views on Leniency and Mercy-the Findings of the Present Study 84
Equity and the Imposition of Condign Punishment 88
The Problem of the 'Non-Virtuous' Sentencer 94
Individualised Notions of Justice 96
Pursuit of the Chimera-Questions of Consistency and Uniformity 97
Conclusion 102
5 The Practical Wisdom of Sentencing: A Rationalisation of Intuitive Decision Making and Judicial Discretion 107
Introduction 107
Berlin's Value Pluralism 107
Value Pluralism in Sentencing 113
The Pluralist Virtues in Sentencing 120
Pluralism and the Need for Autonomy in Decision Making 122
Pluralism and Practical Wisdom 123
The Ideals of Episteme, Techne and Phronesis 124
From Novice to Expert-the Dreyfus Model of the Human Learning Process 127
The Novice Actor 127
The Advanced Beginner 128
The Competent Performer 128
The Proficient Performer 129
The Expert Actor 129
Intuitive Decision Making versus Sentencing information Systems: The Sentencer as an Expert Actor 131
Judicial Wisdom-Phronesis and Sentencing 133
A Reconceptualisation of Sentencing as 'Art': The 'Phronetic Synthesis' 136
The 'Art' of Sentencing 136
A Balancing Exercise 138
The Phronetic Synthesis 140
6 Structuring the Sentencer's Discretion 141
Introduction 141
The Pursuit of Consistency in Sentencing-Alternatives to the Phronetic Synthesis 142
The English Approach to Structuring Discretion through Sentencing Guidelines 142
The First 'Phase'-Appellate Guidance 142
The Second 'Phase'-the Sentencing Advisory Panel 143
The Third 'Phase'-the Sentencing Guidelines Council 143
The Fourth 'Phase'-Presumptively Binding Guidelines and the Sentencing Council 146
The Continued Importance of Individualised Sentencing 151
A Blending of the Phronetic Synthesis with Sentencing Guidance-Principled Discretion in Scottish Sentencing 154
Appellate Review 155
Guideline Judgments 155
Judicial Receptiveness to Guideline Judgments 157
The Shortcomings of Guideline Judgments 158
The Scottish Sentencing Council 160
The Merits of Judicial Self-Regulation 162
Principled Discretion 163
Ripping up 'the Telephone Book': Respondents' Desire for Guidance-not Guidelines-in Sentencing 171
Hedgehogs and Foxes on the Bench 176
The English Hedgehog 176
Foxes on the Bench-Value Pluralist Sentencers in other Common Law Jurisdictions 179
Judicial Conceptions of the Sentencing Process 180
The Findings of Previous Studies 180
England and Wales 180
Scotland 181
Australia 182
Ireland 183
Phronetic Synthesisers and Intuitive Over-Riders: The Findings of the Present Study 183
Structured Sentencing 184
The Instinctive Approach 184
Intuitive Over-Riding: The Mixed Approach 187
Conclusion 191
7 A 'Seedy Little Bargain with Criminals'? Judicial Discretion and the Guilty Plea Discount 195
Introduction 195
Sentence Discounting for Guilty Pleas: Law and Practice in Scotland 196
The Traditional Approach to Guilty Plea Discounting 196
The Statutory Provisions 196
Guidelines on Guilty Plea Discounting-the Decisions in Du Plooy and Spence 196
The Discretionary Nature of Guilty Plea Discounting-the Decisions in Gemmell and Murray 198
Discounting as a Discretionary Process-Gemmell v HMA 198
The Discretionary Nature of Discounting Affirmed-Murray v HMA 201
Discounts and the Nature of Sentencing Guidelines 202
Discretion in Discounting-the Findings of the Present Study 203
Can the Guilty Plea Discount be Justified? 206
The Rationale for the Guilty Plea Discount 206
The Practical Risks of Guilty Plea Discounting 210
The Incentive on the Innocent to Plead Guilty 211
Public Confidence in the Criminal Justice System and the Credibility of Sentences 212
The Penalising of Accused who Exercise their Right to Trial 215
The Development of 'a Guilty Plea Culture' amongst Defence Counsel 216
'Double Dipping'-the Interaction of the Discount with Charge/Fact Bargaining 216
The 'Inherent' or 'Unseen' Sentence Discount 219
Discounting and Individualised Justice 221
Conclusion 225
8 The Phronimos and the Metronomic Clockwork Man 227
How Judges Sentence 228
The Phronetic Synthesis 228
The Importance of (Principled) Judicial Discretion 230
Phronetic Synthesis and Principled Discretion in Practice-Sentencers' Views 231
Towards a New System of Guilty Plea Discounting-Suggestions for Reform 233
The Phronimos on the Bench 240
Bibliography 241
Index 269