Penal Populism, Sentencing Councils and Sentencing Policy

Arie Freiberg, Karen Gelb

• Publisher: Willan
• Year: 2014
• eBook ISBN: 9781317821830
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Public outcries and political platforms based on misinformation and misconceptions about the criminal justice system and current sentencing practice occur all too often in democratic societies. Penal Populism, Sentencing Councils and Sentencing Policy attempts to address this problem by bringing together important contributions from a number of distinguished experts in the field.

Penal Populism presents theoretical perspectives on the role of the public in the development of sentencing policy. It places particular emphasis on the emerging role of sentencing commissions, advisory councils or panels in a number of English speaking countries: Australia, New Zealand, the United States, the United Kingdom, Scotland and South Africa.

The book explains, expands and develops the existing literature that looks at public attitudes to justice and the role that the 'public' can play in influencing policy. Written in a scholarly yet accessible style, Penal Populism asks the critical questions: should 'public opinion', or preferably, 'public judgment' be relevant to court decision-making, to institutional decision-making and to the political process? And if so, how?

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Penal populism, sentencing councils and sentencing policy

Arie Freiberg and Karen Gelb

Introduction

This book is the product of a conference held in Melbourne, Australia in July 2006 that brought together members of the public, public servants, criminologists, judicial officers and members of sentencing advisory boards, panels, councils or commissions from around the world to discuss the relationship between politics, public opinion and the development of sentencing policy, but with particular reference to the role of these emergent advisory bodies.

A decade ago such a conference would not have taken place. While sentencing commissions have been in existence in the United States since the late 1970s, when the Minnesota Sentencing Guidelines Commission was established (Frase, Chapter 6), their primary rationale was the structuring of sentencing discretion. This need arose following years of criticism of indeterminate and unfettered sentencing and administrative discretion in relation to sentencing and parole release decisions.

There are currently 19 sentencing commissions in the United States at State and federal levels whose primary role is to create, monitor or advise on sentencing guidelines for the courts, though more have been established and not survived. As Frase notes, they vary widely "in their purposes, design, scope, and operation" (Frase, Chapter 6). The creation of similar councils or panels in England in 1998 (Sentencing Advisory Panel; Ashworth, Chapter 8) and 2003 (Sentencing Guidelines Council) and Scotland in 2003 (Sentencing Commission for Scotland; Hutton, Chapter 10) was a major development in these jurisdictions where judicial sentencing discretion has been more constrained than in the United States and where there has been a long tradition of appellate review.

There is an abundance of literature on sentencing commissions, sentencing guidelines and sentencing discretion that traverses significant issues such as the distribution of sentencing authority between the legislature, the judiciary and executive bodies, the scope and nature of discretion, the relationship between sentencing commissions and the legislature, the constitutionality of guidelines and other matters. The purpose of the conference was not to rehearse these issues, important as they are, but to examine these bodies through a different conceptual lens, namely the relationship between "the public", public opinion, and the development of sentencing policy.

Most of the sentencing councils discussed in this book were born out of a paradoxical political and social environment. While the early development of the Minnesota Sentencing Guidelines Commission presaged the more recent explosion of such bodies, these more recent councils have arisen during a fraught period in our history. The judiciary is coming under increasing attack as the public claims a greater voice in the criminal justice system; politicians feel that elections cannot be won without a tough "law and order" stance; yet, paradoxically, crime rates are decreasing.

As a response to the many crises that inevitably arise within such a complex environment, sentencing councils have been established around the world. As Freiberg (Chapter 11) notes:

In the sometimes heated political environment in which debates about sentencing policy may take place, the Council can play a useful role in defusing issues by taking on contentious matters and considering them in a calmer atmosphere and over a longer period when some of the emotion produced by the original event has dissipated.

Chapters 6 through 14 of this book introduce us to the key purposes, functions and roles of the various sentencing councils. They were all created with a long-term function of defusing political crises and of attempting to balance the various interests of the judiciary, the public, politicians and the media.

The emergence of sentencing councils

The particular impetus for this conference was the emergence of newer bodies in New South Wales in 2003 and Victoria in 2004 whose purpose was not solely to develop sentencing guidelines, but to deal with sentencing matters more broadly and to involve a wider range of parties in the development of sentencing policy. In particular, the Victorian Sentencing Advisory Council was established following a review that was specifically required to consider whether there were mechanisms that could be adopted to incorporate more adequately community views into the sentencing process (Freiberg, Chapter 11).

The reasons underlying this change of focus in the creation and functions of sentencing advisory bodies are important. As both Hutton and Pratt (Chapter 3; Pratt, 2007) note, the past three decades have seen a shift in the governance of public affairs "away from a directive and paternalistic State to the vision of a State that enables public and private organisations to collaborate" (Hutton, Chapter 16). This is evident in a number of areas of public policy, of which the criminal justice system is only one. It has been driven by many factors including the delegitimisation of both the judiciary and "experts" and the rising influence of the media.

David Garland has identified several currents of social change that have affected the development of penal policy and that are relevant to our discussion of penal populism and the role of sentencing councils in the development of sentencing policy. These broad currents include: the decreased importance of rehabilitation in penal institutions; the reappearance of retribution as a generalised policy goal; the increased salience of public fear of crime as a characteristic of contemporary culture; the new and urgent emphasis on protecting the public; the public loss of confidence in criminal justice; and the development of a highly charged political discourse around crime and justice (Garland, 2001, pp 8-20).

Pratt (Chapter 3) identifies a number of underlying causes that he considers to have brought about the dramatic changes to the distribution of penal authority: the decline of deference to authority or establishment figures, including the courts; the decline in trust in politicians and existing political processes; the effect of globalisation, which has weakened "the authority of sovereign states which makes them seem vulnerable to external organizations and forces"; the growth of "ontological insecurity" or general fear and anxiety, possibly fuelled by the increased crime rates between the 1960s and 1980s; the role of the media in misreporting the true nature and levels of crime and punishment; and, finally, the democratisation of news media, which has provided the opportunity for the emotive experiences and opinions of ordinary people to become the framework through which crime and punishment is understood. In his chapter Pratt illustrates these forces in the New Zealand context, showing how the "emotive, ad hoc and volatile forces of populism can now override scientific expertise and the rationalities of penal bureaucracies".

Public opinion

Public opinion, however defined, has clearly become more salient. As Michael Tony has noted, "sentencing matters" (Tonry, 1996). Since Professor Anthony Bottoms coined the term "populist punitiveness" in 1993 (Bottoms, 1995), the discourse concerning the relationship between politicians, the public, public opinion and sentencing policy has been more focused by bringing together the literature on public opinion with that of the development of sentencing policy (Roberts, Chapter 2). "Populist punitiveness" is a phrase that pervaded the conference. Bottoms used the term not to refer to public opinion per se, but rather "the notion of politicians tapping into, and using for their own purposes, what they believe to be the public's generally punitive stance" (Bottoms, 1995, p 40). Populist punitiveness, Bottoms argued, was not only crucial to an understanding of the increasing imprisonment rates characteristic of a number of Western countries, but was embedded in a number of other social changes characterising modernity, one of the most important of which is a widespread sense of insecurity into which politicians feel free to tap.

The impact on sentencing law of public opinion, mediated or unmediated, is clearly evident across the jurisdictions surveyed. In all of them, laws such as sex offender registration and community notification schemes, "three strikes and you're out" provisions, and increased mandatory minimum and maximum sentences have been introduced as legislative responses to a perceived punitive public (Freiberg, Chapter 11).

Most of these initiatives have not come from law reform commissions, parliamentary committees or other governmental advisory bodies; they have come from public pressure expressed sometimes directly on the streets, more often through the print and electronic media, through political pressure directly applied to political parties and indirectly through the ballot box at election time and, in some countries, through propositions placed on ballots and similar citizen-initiated referendum processes (Pratt, Chapter 3). Whereas law reform has traditionally been the province of technical experts and public officials, mediated through the parliamentary political process, over the past few decades the dynamic of law reform has altered and, in the area of sentencing, it appears to have become less technical and more demotic or more democratic.

Some of the changes effected through these means have been large and profound. Some have been short-lived and ineffective. Some have signalled major shifts in sentencing philosophy and practices while others have proved to be counterproductive. In most of these jurisdictions, prison populations have burgeoned, with the attendant burden on the public purse. Bending to the perceived punitive desires of the public may be electorally popular, but it comes with high financial and social costs.

What is the significance of this? Pratt (Chapter 3) suggests that these changes are "symptomatic of a new axis of power which has come into play and which significantly reorganises both the terms of penal debate and who is allowed to contribute to this" - that popular commonsense has become a "privileged driver of policy". There is little value in criticising politicians for being "political" or for listening to their constituents; politicians in a democracy have a duty to be responsive to the public. Public opinion defines the boundaries of what is acceptable (and therefore possible) in public life. As Roberts notes: "There is general agreement that the criminal justice system should be responsive to the community that it was created to protect", a fact also noted by the Halliday review of sentencing in the United Kingdom (Roberts, Chapter 2).

The difficulties in determining the nature and relevance of "public opinion" in relation to sentencing form the first part of this book. The work (over many decades) of Roberts, Doob, Hough, Indermaur and others has explored methodological problems in gauging public opinion and has reported on public attitudes to issues such as the adequacy of sentences, the principles of punishment and other sentencing issues (for a brief overview of this body of work, see Gelb, Chapter 5). Time and again, researchers have emphasised the importance of distinguishing between "the findings of social scientific public opinion research and more volatile impressions of public mood, usually based on newspaper headlines or the like" (Pratt, Chapter 3), between "attitudes" and "judgments" and between hastily formed views and deliberated responses to properly contextualised questions (Indermaur, Chapter 4; Gelb, Chapter 5). In particular, the extensive body of evidence built by these researchers has convincingly shown that people who seem to be punitive when asked for "top-of-the-head" responses to simplistic, abstract questions, become far less punitive when allowed to provide a considered, thoughtful response to more detailed information about a specific case. This is the difference between mass "public opinion" and informed "public judgment".

Even if "public opinion", or preferably "public judgment", can be ascertained in relation to a particular sentencing issue, should it be relevant to court decision-making, to institutional decision-making and to the political process? If so, how? Roberts (Chapter 2) poses two fundamental questions in relation to the courts:

1. To what extent should courts consider public opinion when imposing sentence?
2. Are community views a legitimate general consideration at sentencing?

Roberts notes the tension present in the relationship between community views and the determination of sentence. On the one hand, courts are expected to impose sentences that are not radically inconsistent with public expectations. On the other hand, public opinion is not a legally recognised factor at sentencing. Reviewing the evidence from the United Kingdom and Canada, he does not find any conclusive evidence that sentencing trends - that is, individual sentencing decisions or aggregate sentencing trends such as prison populations - reflect changes in public opinion. However, at the political or sentencing policy level, he finds stronger evidence that public opinion has influenced the evolution of sentencing policy, particularly following moral panics or extensive media coverage of an emotive issue. In such instances, policy shifts have exhibited a certain asymmetry, moving in a more punitive direction to reflect the views of an allegedly punitive public.

The distinction between individual sentencing decisions (both at first instance and on appeal) and sentencing policy is not necessarily well understood by the public. Individual sentencing involves a decision to allocate a sanction in a specific instance, while sentencing policy relates to issues concerning the relationship between legislatures, the courts, the executive and sentencing commissions/ councils. In both instances, the public expects a certain degree of responsiveness. Sentencing decisions and sentencing policy that are made outside the framework of community perceptions are seen as being "out of touch". Chief Justice Murray Gleeson of the High Court of Australia addressed this issue in a speech to the Judicial Conference of Australia Colloquium in October 2004. It is particularly useful to consider his comments, as opportunities to hear directly from judges themselves on issues of public opinion are rare.

The Chief Justice begins by accepting that judges are expected to know, and be conspicuously responsive to, community values (Gleeson, 2004, p 1). But he then poses a series of questions that is immediately relevant for our discussion of the role of sentencing councils in the development of sentencing policy:

How should judges keep in touch? Should they employ experts to undertake regular surveys of public opinion? Should they develop techniques for obtaining feedback from lawyers or litigants? And what kind of opinion should be of concern to them? Any opinion, informed or uninformed? What level of knowledge and understanding of a problem qualifies people to have opinions that ought to influence judicial decision-making? Who exactly is it that judges ought to be in touch with? ...Whose values should we know and reflect?

Chief Justice Gleeson's questions reflect the difficult role faced by sentencing councils around the world. Regardless of their specific remit, councils that are obliged to consider community views when developing their guidelines or their policy advice are faced with the precise challenges illustrated by the Chief Justice. Overcoming these challenges is a critical function of sentencing councils, especially in the current climate of low public confidence ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Contributors
• Chapter 1 Penal populism, sentencing councils and sentencing policy
• Chapter 2 Sentencing policy and practice: the evolving role of public opinion
• Chapter 3 Penal scandal in New Zealand
• Chapter 4 Dealing the public in: challenges for a transparent and accountable sentencing policy
• Chapter 5 Myths and misconceptions: public opinion versus public judgment about sentencing
• Chapter 6 The Minnesota Sentencing Guidelines
• Chapter 7 The United States Sentencing Commission
• Chapter 8 English sentencing guidelines in their public and political context
• Chapter 9 The New South Wales Sentencing Council
• Chapter 10 The Sentencing Commission for Scotland
• Chapter 11 The Victorian Sentencing Advisory Council: incorporating community views into the sentencing process
• Chapter 12 A perspective on the work of the Victorian Sentencing Advisory Council and its potential to promote respect and equality for women
• Chapter 13 Sentencing reform in New Zealand: a proposal to establish a sentencing council
• Chapter 14 A sentencing council in South Africa
• Chapter 15 A federal sentencing council for Australia
• Chapter 16 Institutional mechanisms for incorporating the public
• Chapter 17 Does it matter? Reflections on the effectiveness of institutionalised public participation in the development of sentencing policy
• Index