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The evolution of sentencing

Feature Articles

Cite as: (2004) 78(4) LIJ, p.38

The welcome addition of the Sentencing Advisory Council to the Victorian criminal justice landscape opens the way for Victorian sentencing law and practice to become a more socially acceptable, constructive and forensic practice.

By Professor Mirko Bagaric and Richard Edney

About 30 years ago US federal judge Marvin Frankel described sentencing law as a wasteland in the law.[1] This comment reflected the fact that sentencing law was devoid of an overarching rationale, it was purposeless, lacked principle and judges pretty much did what seemed appropriate at the time, resulting in inconsistency and unfairness.

As a result of the widespread use of fixed penalties, things have changed considerably in the US over the past three decades.[2] We disagree with the specific framework adopted in the US. This is not because of the broad approach (which builds policy into sentencing) but because it flies in the face of empirical evidence of what can be achieved through sentencing. Ultimately, sentencing in the US is simply too heavy-handed. As far as the general approach to sentencing in Australia is concerned, things have not changed much in Australia. Sentencing is still in the embryonic stage – bereft of a verifiable justification and guided by unreflective intuition. It is not surprising that it has been labelled the “high point in anti-jurisprudence”.[3]

The most fundamental failing of sentencing law and practice in Australia (as with most other parts of the world) is that the objectives of sentencing law and practice are based on assumptions concerning what can and ought to be achieved through a process of state-imposed punishment. Instead, it should be founded on empirical evidence concerning what can be achieved through sentencing and having regard for the goals that the community should pursue by punishing criminals.

Moreover, the discharge of the judicial task of sentencing is remarkably “at large”,[4] due to the “instinctive synthesis” approach to sentencing,[5] which provides that sentencing is largely an intuitive process and therefore it is unnecessary for sentencers to detail the exact reasoning process by which they reach their decisions.

The Sentencing Advisory Council (SAC) when established later this year presents an opportunity for sentencing law and practice to become a more sophisticated and forensic institution. The implementation of the SAC is a key recommendation from the 2002 report from then University of Melbourne Criminology Professor Arie Freiberg on Victoria’s sentencing law and practice, titled Pathways to Justice. Under s6(4) of the Sentencing (Amendment) Act 2003 (Vic), the SAC has a wide ranging brief including:

  • to provide statistical information on sentencing, including information on current sentencing practices, to members of the judiciary and other interested persons; and
  • to conduct research, and disseminate information to members of the judiciary and other interested persons, on sentencing matters.

The SAC is in a position where, properly focused, it can recommend changes to the sentencing system that will make it a more socially acceptable, productive and scientifically based practice. This article suggests a blueprint for a more coherent and justifiable system of sentencing.

Step 1: Ignore (uninformed) public opinion

The first step[6] is to accept that sentencing is a purposive social endeavour which must be guided by rational inquiry, not raw impulse.[7] It is legal commentators, practitioners and other experts (namely, criminologists, penologists, sociologists, moral philosophers and econometricians) who should be educating the public about how to frame a sentencing system – not the other way around.

Seeking public views on sentencing is analogous to doctors basing treatment decisions on what the community thinks is appropriate or engineers building cars not in accordance with the rules of physics but on the basis of what lay members of the community ” seems about right. Sentencing is an intellectual social discipline. It should have underlying principles which govern the way it ought to be administered. These are ascertained through a process of inductive and deductive logic and analysing the relevant empirical evidence to determine what objectives are and are not achievable through a system of state-imposed punishment. Guidance on sentencing matters should be sought from experts in the field, not the uninformed.

This is not to suggest that the community should be excluded from the process of developing a more sophisticated sentencing system. In fact several members of the SAC must have experience in community issues affecting the courts. The inclusion of these members should be used to assist in getting the message out to the community that sentencing is a rational, purposive activity which works best if designed by experts in the area.

Step 2: Identify the objectives of sentencing

The next step involves working out what can be achieved through a process of state-imposed punishment of wrongdoers. This is essential because it is pointless striving for aims which are unattainable. The sentencing system should pursue only those objectives that empirical evidence shows are attainable through a system of punishing wrongdoers.

Broadly, it has been suggested that there are three positive benefits that may be secured through a system of state-imposed punishment: incapacitation, deterrence (both general and specific) and rehabilitation. However, current empirical evidence provides no basis for confidence that punishment is capable of achieving most of these goals.[8] Incapacitation is flawed since we as a society are very poor at predicting which offenders are likely to commit serious offences in the future.[9] There is nothing to suggest that offenders who have been subjected to harsh punishment are less likely to reoffend, thus there is no basis for pursuing the goal of specific deterrence.[10] Rehabilitation fares no better. There are no far reaching rehabilitative techniques which have proven to be successful at producing positive internal attitudinal change in offenders.[11]

Absolute general deterrence; not marginal general deterrence
However, experience shows that absent the threat of punishment for criminal conduct, the social fabric of society would readily dissipate. Crime would escalate and overwhelmingly frustrate the capacity of people to lead happy and fulfilled lives. Natural social experiments concerning the effects of police strikes (and the like) reveal that without the threat of criminal punishment a far greater number of people would commit criminal offences.[12] Thus, general deterrence works in the absolute sense – there is a connection between criminal sanctions and criminal conduct.

However, there is insufficient evidence to support the theory of marginal deterrence, which provides that there is a direct correlation between higher penalties and the crime rate. As is noted by Zimring and Hawkins:

“Studies of different areas with different penalties, and studies focusing on the same jurisdiction before and after a change in punishment level takes place, show rather clearly that the level of punishment is not the major reason why crime rates vary. In regard to particular penalties, such as capital punishment as a marginal deterrent to homicide, the studies go further and suggest no discernible relationship between the presence of the death penalty and homicide rates”.[13]

It follows that marginal deterrence should be disregarded as a sentencing objective – at least unless and until there is proof that it works.

The above conclusions summarise the current state of play concerning what can be achieved through sentencing. An important ongoing task of the SAC will be to continually monitor the relevant literature to ascertain if the evidence changes in terms of what goals can be achieved through sentencing.

Step 3: Make the punishment fit the crime

The failure of marginal general deterrence means that (absolute general) deterrence justifies inflicting some punishment on offenders, but it is of little relevance in fixing the amount of punishment. Likewise with the goals of incapacitation and rehabilitation – sanctions should not be either increased or reduced on the basis of these goals.

In terms of fixing the amount of punishment, the cardinal determinant is the principle of proportionality, which prescribes that the punishment should fit the crime.[14] Despite this, sentences for similar offences vary widely from jurisdiction to jurisdiction and from court to court.[15] There are two reasons for this. The first is that legislatures and the courts have not developed a workable way to match the two limbs of the principle. The second is that the principle of proportionality is seriously distorted by the notion of aggravating and mitigating factors.[16] The manner in which these should be dealt with is discussed in step 4.

At this point we discuss how legislatures can go about matching the two limbs of the proportionality principle. This admittedly is no easy task. How many years of imprisonment correlates to the pain endured by a rape victim? The main difficulty here is that the two currencies are different.

The interests typically violated by criminal offences are physical integrity and property rights. At the upper end of criminal sanctions the currency is (deprivation of) freedom. The only conceivable way to give content to the proportionality principle is to adopt a uniform standard for measuring the offence gravity and punishment severity. Previous criteria that have been suggested included public perceptions of offence seriousness and statuted penalties.[17] In our view, both of these are inappropriate. They have no relation to actual offence seriousness. We propose that a more appropriate measure is happiness and pain. Thus, the amount of unhappiness caused by the punishment should be commensurate with the seriousness of the offence.

The reason that we select pain or suffering as the ultimate criterion is that it is capable of being felt by all and desired to be avoided most by all. The desire to avoid suffering is the sentiment felt most strongly by all people at all points in history and across all cultures. There is a large amount of empirical data indicating the conditions in which humans flourish best and[18] social scientists are adept at making assessments of subjective wellbeing and happiness.

Moreover, while noting the diversity in the range of activities through which people choose to express themselves the studies show that at the base we are not that different after all. We can now confidently identify the things that are conducive or inimical to happiness (and its converse, pain or suffering). In terms of how happiness is ascertained, it is obviously a state of mind and hence self-reports form the main indicia of happiness – if you feel happy, you are happy. There is the potential that people may be disingenuous in their self-reports of happiness. However, this does not undermine the accuracy of the studies. This is because happiness is a relative concept.

To discover who is happiest, and why, we need only assume that those who say they are “very happy” or “completely satisfied” do experience greater wellbeing than those who say they are unhappy or dissatisfied.[19]

It is this aspect of our proposal which requires the allocation of most resources. It requires surveys to be conducted that evaluate the subjective wellbeing of victims of crime. These should be compared to studies that analyse the degree of pain that actually stems from criminal sanctions. Wellbeing in relation to both aspects of the study will be measured by the extent to which a person’s interests are adversely affected as a result of being either a victim of crime or subjected to a criminal sanction.

Step 4: Aggravating and mitigating factors – scrutinise each of them

The second last step in developing a sophisticated sentencing model involves addressing the issue of so-called aggravating and mitigating sentencing variables. There are between 200 and 300 factors that are relevant to sentencing.[20] Common aggravating factors are breach of trust, and offending while on bail or parole. Mitigating considerations include such things as cooperation with authorities and previous good character.

The relevance of most, if not all, of these considerations is questionable. The starting point is that all of these considerations should be ignored unless a cogent justification is given for them. To justify the existence of a sentencing practice or rule one must:

  • state the sentencing aim(s) that is being invoked; and
  • show how the consideration will assist in promoting the aim(s).

For example, if the objective of sentencing is to impose proportionate sentences, then a consideration like remorse should be excluded from the sentencing calculus. It might “feel” right to punish the regretful criminal less than the defiant one, but feelings of regret will not mend the victim’s broken bones, or compensate for the stolen property. Contrition after the event also does not affect the accused’s level of blameworthiness at the time he or she committed the offence. It might be suggested, for example, that remorse diminishes the relevance of specific deterrence, but if this has been excluded as a relevant variable in step 4 then it cannot justify its retention as a sentencing consideration.

This analysis makes for a vastly different sentencing system to that at present. While general deterrence determines the type of punishment, legislatures should then look to the principle of proportionality to guide them on how much to punish. The most obvious change to sentencing that would follow from this is that the reliance on imprisonment would be significantly diminished: “old favourites”, such as specific deterrence, incapacitation and prior criminality could no longer be invoked to “justify” incarceration.

The main rationales underlying the move towards harsher penalties are incapacitation and (marginal) general deterrence. Given that these objectives are flawed, it follows that what we should be doing is watering down the severity of punishment. At the same time, we should be striving for a lower crime rate. This may seem overly ambitious, but it is not unattainable.

Any intuitive unease that lowering imprisonment rates would inevitably lead to increased crime rates is to a large extent allayed by a comparison of sentencing practice in jurisdictions such as Finland where sentencing premiums are not attached to pursue the aims of incapacitation or deterrence and the main determinant in setting criminal sanctions is the principle of proportionality.[21]

The prison rate in Finland is about half of that in Australia, and when offenders are sent to prison they do not stay very long – prison sentences exceeding five years are rare.[22] Moreover, the crime rate in Finland is about 35 per cent lower than that in Australia.[23]

Thus, the SAC needs to identify each of the main sentencing variables and critically evaluate whether they are justified as being legitimate sentencing objectives.

Step 5: Ongoing reform

The last step is an ongoing one. No system, be it health or education, is beyond improvement. Whatever sentencing system is adopted will not be perfect; rather, it will necessarily be provisional – subject to new evidence regarding what can be achieved by punishing wrongdoers.

The system proposed by the above model relies heavily on what research shows can be achieved through sentencing. We are sceptical, for example, about the efficacy of sentencing to achieve the goals of rehabilitation or incapacitation. However, the evidence is not conclusive in relation to this – more testing is needed. More sophisticated psychiatric techniques may make it possible to distinguish offenders who are likely to recommit serious offences from those who no longer present a danger to the community, thereby giving renewed impetus to an incapacitative sentencing regime.

Likewise, better designed educational programs may make it possible to reshape the value systems of criminals, which would make rehabilitation an attainable objective. We should not give up readily on the pursuit of such desirable outcomes. Thus, there is an ongoing need for experimental controlled sentencing programs to see if they can achieve where other programs have failed.

Given the crude manner in which sentencing has evolved in Australia, there is room for considerable scepticism concerning whether in the foreseeable future it would emerge from the dark ages and evolve into something akin to a social institution underpinned by a body of empirical and normative knowledge.[24]

The SAC, properly conducted, offers hope that this process can be considerably accelerated.

PROFESSOR MIRKO BAGARIC is head of the School of Law, Deakin University. His research interests include punishment and sentencing, practical moral philosophy, criminal law, international law and corporate governance.

RICHARD EDNEY is a solicitor and senior lecturer at the School of Law, Deakin University. He lectures on evidence and international commercial law.

[1] M Frankel, Criminal Sentences: Law without order, 1972, Hill & Wang.

[2] See M Bagaric, “Double punishment and punishing character – the unfairness of prior convictions” (2000) 19 Criminal Justice Ethics 10.

[3] J Smith, “Clothing the emperor: towards a jurisprudence of sentencing” (1997) 30 Australian and New Zealand Journal of Criminology 168.

[4] See Olbrich (1999) 108 A Crim R 464 at 465.

[5] See Wong (2001) 76 ALJR 79.

[6] There are two logically prior steps. The first is to assume that punishment is justified. The second is to select a theory of punishment. Pragmatically, these steps do not affect the ultimate outcome of the process and hence for considerations are not discussed further in this article.

[7] That sentencing is not governed by rational inquiry is discussed in M Bagaric, “What sort of fixed penalties should we have?” (2002) 23 Adelaide University Law Review 113.

[8] See M Bagaric, Punishment and Sentencing: A rational approach, 2001, Cavendish Publishing.

[9] See FE Zimring and G Hawkins, Incapacitation, 1995, OUP, p3.

[10] See Bagaric, note 8 above.

[11] See A von Hirsch and L Maher, “Should penal rehabilitation be revived?” in A von Hirsch and A Ashworth (eds), Principled Sentencing, 1998,Hart Publishing, pp121, 122-3.

[12] For discussion regarding the widespread civil disobedience which occurred following the police strike in Melbourne in 1923, see KL Milte and TA Weber, Police in Australia, 1977, Butterworths, pp287-292. Similar civil disobedience followed the police strike in Liverpool in 1919 and the internment of the Danish police force in 1944.

[13] FE Zimring and GJ Hawkins, Deterrence: The legal threat in crime control, 1973, University of Chicago Press, pp43-4. For a more recent analysis of the relevant empirical evidence, see M Bagaric, note 8 above, ch 6.

[14] See Ryan (2001) 75 ALJR 815.

[15] M Bagaric, note 7 above.

[16] Aggravating factors, such as prior criminality and breach of trust, and mitigating factors, such as age and remorse, divert the inquiry from the harm caused by the offence and the unpleasantness stemming from the sanction.

[17] See C Anderson, “Development of a national offence index for the ranking of offences” (2003) AIC/ABS Conference – “Evaluation in crime and justice: trends and methods”.

[18] See D Myers, The Pursuit of Happiness (1992); Tim Kasser, The High Price of Materialism, 2002, MIT Press.

[19] Myers, note 18 above, p28.

[20] See J Shapland, Between Conviction and Sentence, 1981, Routledge & Kegan Paul, p55; R Douglas, in Guilty Your Worship, 1980, LaTrobe University.

[21] For an overview of the Finnish system, see T Lappi-Seppala, “Regulating the prison population: experiences from a long-term policy in Finland” (1998), part II, para 3; paper delivered at the Back to Beyond Prisons Symposium, Canada.

[22] A von Hirsch, Censure and Sanctions, 1993, Clarendon Press, p43.

[23] See M Bagaric, “Home truths about home detention” (2002) 66 Journal of Criminal Law (UK), p245.

[24] In other writings we have suggested that given the populist nature of Australian politics there was virtually no hope of this and that it was with the judiciary, not the legislature, where the strongest hopes lay in relation to advancing sentencing law and practice: M Bagaric and R Edney, “What’s instinct got to do with it? A blueprint for a coherent approach to punishing criminals” (2003) 27 Criminal Law Journal 119.


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