A new book on sentencing by Cyrus Tata

David Downes once described criminology as a rendezvous subject, meaning that it is a crossroads at which several different disciplines meet. The same holds true of sentencing – which some might see as a sub-discipline of criminology. Sentencing scholarship, viewed in its totality, consists of contributions by sociologists, philosophers, lawyers, psychologists, political scientists, economists, historians and, of course, criminologists (though many of them will have started life in one of the other disciplines). I have often been inclined to think of sentencing as an estuary into which many different rivers – law, sociology and other disciplines – flow. On reflection, however, this fluvial metaphor is not entirely apt because, while all these disciplines make great contributions to sentencing scholarship, they seldom mingle very well, and sometimes not at all. The sheer volume of research being produced within the various disciplines makes it almost inevitable that each of us must, reluctantly or otherwise, stay largely within the confines of our own. Yet, if we are serious about what we do, we must at times be willing to cross boundaries and explore other disciplinary and intellectual perspectives. After all, every once in a while, a work appears that mounts a robust challenge to some of our most fundamental assumptions about sentencing. Cyrus Tata’s new book, Sentencing: A Social Process. Re-thinking Research and Policy (Palgrave Macmillan, 2020) is one such work.

At one level, this book may be situated within a body of scholarship that treats sentencing primarily as a process or a social practice. John Hogarth’s Sentencing as a Human Process (University of Toronto Press, 1971) was a major, pioneering work that investigated the sentencing behaviour of magistrates, largely through a series of in-depth interviews with a selection of them. It devoted several chapters to the manner in which judges (magistrates) interpret information furnished to them as part of the sentencing process. More recently, a much-cited book chapter by Neil Hutton (a colleague of Cyrus at Strathclyde Law School) adopted Pierre Bourdieu’s notion of habitus as a conceptual framework for the purpose of “understanding the sociological distinctiveness of sentencing as a form of legal decision making” (Hutton, “Sentencing as a Social Practice” in Armstrong and McAra (eds), Perspectives on Punishment: The Contours of Control (Oxford University Press, 2006), chap. 9). Viewed in the context of more conventional legal theory, Cyrus’s book may be interpreted as offering an “external” critique (of sentencing decision-making in this instance) in contradistinction to the “internal” point of view championed by H.L.A. Hart in The Concept of Law which is essentially about trying to understand the law from the perspective of those who participate in the practice of it, and who accept the practice. See, for example, Grant Lamond’s essay “Methodology” in the even more recently published Cambridge Companion to the Philosophy of Law (2020), p. 21. Having said this, Cyrus is also, to a significant degree, offering an internal perspective, something he is admirably qualified to do because of the considerable amount of empirical research he has conducted during the past 25 years on several aspects of the criminal justice system including sentencing (in particular), legal aid and judicial support systems.

Sentencing: A Social Process is a fairly short book (about 170 pages) but it is a rich and intricately argued piece of work. All I can do here (and this is not intended as a review, just a description) is to dwell on a few of its more salient features. The book does not set out to provide a detailed blueprint for an ideal sentencing system. Rather its purpose is to offer a sustained critical analysis of how sentencing decision making is conceived and represented. Cyrus starts by identifying two major trends in modern sentencing scholarship – what he calls the legal-rational tradition and the judicial defensive tradition. The main concern of the legal-rational approach is to promote a sentencing system imbued with values such as fairness, equality and consistency. This, in turn, calls for judicial sentencing powers to be limited and structured through, for example, the adoption of guidelines. The judicial defensive tradition treats sentencing as an exercise in practical wisdom which judges, by virtue of their training, experience and expertise, bring to bear on the facts of each specific case. Proponents of this view typically believe that sentencing judges should be conferred with fairly extensive discretion and allowed to get on with the job. Cyrus argues, quite convincingly, that both of these traditions share a common premise or assumption which he calls autonomous individualism.

This notion of autonomous individualism and its deficiencies as an explanatory tool form a connecting theme throughout the book. As used in the book, the term applies in at least three different contexts. First there is the idea of the sentencing judge as an autonomous individual, and we shall return to that. Secondly, other professionals, such as lawyers and probation officers, who deal with defendants at various stages of the process usually work in isolation from one another and, to this extent, see themselves as autonomous individuals. Thirdly, the facts of a case tend to be atomised (although he does not use that term) in the sense of being presented as discrete autonomous factors to which rules and principles can be applied in order to arrive at an appropriate sentence. Instead, Cyrus argues (p. 4) that sentencing is “interpretive, processual, relational and performative.” He is certainly right to stress that it is “processual” because all too often it is imagined as solely a judicial task, something that begins and ends with the judge, again an autonomous agent. Yet, as he writes (p. 59):

“The sentencing agenda is to a considerable degree pre-determined and shaped by non-judicial actors. If it is the case that since sentencing (rather than the determination of guilt) is the key decision of the court which all actors build towards, then it means that we should see the reality of sentencing work as a multi-professional, multi-disciplinay collaborative process.”

This is an argument that some of us have long been making, but Cyrus presses it further than anyone has done before. To phrase the matter in simple terms, sentencing is one point along a continuum (the criminal process) that is punctuated by key decisional moments or episodes most of which are discretionary in nature, and the outcomes of which will strongly influence, if not determine, what sentence, if any, is ultimately imposed. Earlier decisions on, for example, prosecution, charge and mode of trial will shape the task and the decision of the sentencing judge. Further, in performing that task, the judge will often be provided with information or advice, which may (or may not) prove influential, in the form of professional reports from probation officers, psychologists and others. And then, of course, there is the input of counsel, and especially defence counsel who will make a plea in mitigation. Nor is sentencing always, or even commonly, the end point of the continuum. Others must take responsibility for implementing the sentence and they, too, are often empowered to exercise discretion. Thus understood, sentencing is, as Cyrus reiterates throughout this book, a truly collaborative exercise.

The various decisions that influence or determine the sentence ultimately imposed (and perhaps the implementation of that sentence) are made by a range of professionals including lawyers, judges, probation officers and expert witnesses. Those of us who describe ourselves as professionals seldom pause to reflect on what exactly a “profession” is. In fact, there is an extensive academic literature on the topic and Cyrus has mastered it very thoroughly, as reflected in Chaps 4 and 5 of the book. (These chapters will be of great interest to any lawyer, irrespective of their specialism, wanting to reflect on the social and ethical dimensions of their calling). Two conceptions of “profession” are identified, the trait model and the proprietorial control model. The trait model focuses on the characteristics of professionalism such as educational and training requirements, competitive entry, being subject to regulation, and expertise in applying abstract or specialised knowledge to concrete cases or factual matrices. The proprietorial control model, as the name suggests, is more concerned with “owning” an occupation or area of work. Viewed from this perspective, professionalism also involves controlling the relationship between facts and rules. Chapter 5 of this book, entitled “The Humanising Work of the Sentencing Professions: Individualising and Normalising” has many important insights into how the various professions work to present, as far as they can, an ideal defendant for sentencing. I found particularly interesting what Cyrus had to say about remorse. As he notes, much of the academic literature on this topic concentrates on how to identify true remorse. Yet the presence, or even the expression, of remorse can also operate to validate or legitimate the imposition of punishment. The sentencer can take comfort, as it were, from the defendant’s remorse as a justification for inflicting the suffering or deprivation that the sentence entails.

This book, for the most part, is written in a very condensed style that demands concentration, but the effort is always well worthwhile because of the paradoxes exposed and the insights offered. However, Chap. 6 is written in an entirely different register and that, I suspect, is because it was written with some passion. The chapter is entitled “The Rise of Technology and the Demise of the Sentencing Professions?”. Two pieces of background information are necessary to understand the argument made in this chapter. First, back in 2005, the sentencing world was taken by storm with a book by Norwegian criminologist, Katja Franko Aas, entitled Sentencing in the Age of Information: From Faust to Macintosh (London, 2005). Her argument was broadly within the new penology and actuarial justice schools of thought. Essentially, she was lamenting the decline of individualised justice and judicial discretion and their replacement with various technology-based strategies that were preoccupied with segmented data. Jacqueline Tombs took up this theme is another important contribution (“Telling sentencing stories” in Carlen (ed), Imaginary Penalties (Willan Publishing, 2008). The second background issue relates to the development of the Scottish Sentencing Information System (SIS) which was undertaken on the initiative of senior members of the Scottish judiciary in the early 1990s (and described by Cyrus, who had a key role in it, in this book and elsewhere). The SIS rightly attracted wide international attention and admiration and was, indeed, the model for the Irish Sentencing Information System while it lasted. Its value lay, first, in the large number (many thousands) of previous sentencing decisions that were analysed in depth and, secondly, in the various levels at which the system could be interrogated by judges. Rather than merely providing raw data on, for example, the number of sentences of a specified level of severity previously imposed for a given offence (though it did that too), it allowed users to dig deeper and get a full account of each case. This was vitally important. Knowing the ultimate sentence imposed in any case is of little value unless one also knows, for example, if the offender was being sentenced simultaneously for several offences, if he or she had a criminal record and, if so, for what, and other relevant matters.

The arguments made by Franko Aas, Tombs and others were, of course, very good ones as far as they went. Indeed, they are probably even more relevant today with the growing use of algorithm-based decision making within the criminal justice system, about which there is now a voluminous academic literature. However, both Franko Aas and Tombs had pointed to the SIS as an instance of the phenomenon they were describing and criticising. In a powerfully written chapter (6) of this book, Cyrus rebuts this argument with tremendous clarity and persuasiveness. First, the SIS was intended to be descriptive rather than normative in nature. Secondly, and most importantly for the purpose of his argument, the SIS presented “whole case” accounts rather than a set of fragmented, decontextualized data. This chapter should be required reading for anyone engaged in the development of sentencing guidelines in this jurisdiction.

I will just pick out a few other important points made throughout in this book, including in the final chapter which recommends new directions in policy and research. It observes that the neat distinctions we tend to draw between discretion and rules, and rules and facts, are often illusory. Rules often phrased in an open-ended way that invites the exercise of discretion by including terms such as “reasonable” or “dangerous”. As to the distinction between rules and facts, Cyrus writes (p. 76):

“The rule depends on the context in which it is implemented: the specific case facts. So naturally one turns to the case “facts”, only to find that what count as “the relevant facts” depend on “the legal rule“. Thus, the scholar of decision-making is required continually to shuttle between the two (the rules and the facts), unable to apprehend what determines the decision.”

The many valuable recommendations made in the final chapter include a plea for much greater concentration on “typified whole case stories”; the need to rethink the concept of “efficiency” given that the output of the justice system is, by definition, justice and this should take precedence over case processing and management; the need for a deeper empirical understanding of decision-making; taking the concept of imprisonment as a last resort seriously which means that the seriousness of the current offence should be the sole criterion; rethinking legal aid in a way that would reward defence lawyers for helping offenders to exit the criminal justice system, mainly by referring them to agencies that can assist with the social and personal problems that have contributed to the offending behaviour.

Meanwhile, those of us who are “old and grey and full of sleep, and nodding by the fire” will probably continue to pursue the legal analytical approach, concentrating on sentencing law and practice, and the policies underpinning it. But the good news is that there is a growing cohort of young scholars, in Britain in particular, who are now doing and will continue to do fantastic work in bringing sentencing research to a new level. Then there are initiatives such as the Sentencing Academy (https://sentencingacademy.org.uk) which is dedicated to informing public debate about sentencing and creating a bridge between sentencing experts, policy makers and the public in England and Wales. Back in those halcyon days before Covid-19, I attended a great seminar hosted one evening by the Academy at University College London on “Sentencing Reform in the New Parliament.” Actually, it was only last January, but as Louis MacNeice might say, if he were still around, it now seems “so unimaginably different and all so long ago.”

These younger scholars will find much to inspire them in Cyrus’s book. But so will everyone working in the field. All too often, in our enthusiasm to suggest how the sentencing system should be “fixed”, we neglect to consider the true inner nature and collaborative quality of the decision-making process we are aiming to improve. Sentencing: A Social Process is a great book which should, and doubtless will, encourage all of us to reflect more deeply on this fundamental issue.

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