Is Sentencing Reform a Lost Cause? A Historical Perspective on Conceptual Problems in Sentencing Research

Article excerpt

   For Nietzsche, we are more likely to engage in the development of    "semiotic fictions" that provide us with an illusory state of    understanding and mastery of the universe. He has emphasized that    rather than search for the "truth" resting on Logos, the search for    a seemingly underlying logic, rationality, and certainty, we should    focus on Pathos-struggle, contradiction, the unexpected, surprise,    and the emergent, (1) 



After a period of studying and working in Israel in the early 1960s, I was employed as a Research Officer in the English Home Office Research Unit at a time when the British government was contemplating the adoption of the suspended sentence of imprisonment as a means for stemming the tide of an increasing prison population. Israel, which on gaining independence in 1948 had inherited a criminal justice system based on the English model, had introduced a similar reform a few years earlier. On the basis of a somewhat rudimentary examination of the statistical data on the sentencing practices of the Israeli courts (broken down by court level and type of offense) during the years prior to and following their reform, I reached the following conclusions: "The assumption that custodial rates would decrease was borne out. They were in fact reduced to less than half their previous level.... They were reduced in both district courts and magistrates' courts, and for almost every category of offence." (2)

The positive outcome of the Israeli reform might have been attenuated if large numbers of suspended sentences had subsequently been activated following the commission of a further offense during the suspension period. But activation rates did not prove to be high. (3) On this occasion, in an apparent reversal of the usual pattern, Britain could learn from the Israeli experience. I therefore drafted a position paper for the Home Office extolling the potential of using suspended sentences to reduce imprisonment. While I have no knowledge of the weight, if any, given to my position paper in the formulation of the British government's policy, the reform was incorporated in the subsequent legislation--the Criminal Justice Act of 1967. (4) Its main purpose, more explicitly than in Israel, was to avoid using imprisonment. (5) To ensure this would be the outcome rather than "net-widening" (whereby new softer sanctions serve as additions to the use of prison sentences rather than replacing them), a rule was introduced (first by the Court of Appeal, later by statute) to ensure that the suspended sentence would not serve as an alternative to non-custodial penalties:

   [S]entencing courts must first consider and dismiss all    non-custodial penalties (fine, probation, etc.) as inappropriate,    then decide that a sentence of imprisonment had to be passed, fix    the length of that sentence, and then and only then go on to ask    whether the sentence of imprisonment could legitimately be    suspended in the particular circumstances. (6) 

The outcome, however, was very different from that which was intended--and indeed might have been anticipated on the basis of the Israeli experience. There was "extremely strong inferential evidence that after 1967 the courts at once used the suspended sentence not only in place of imprisonment, but also where they would previously have imposed the fine or probation." (7) Moreover, the English magistrates' courts tended to impose longer terms than when imposing immediate imprisonment. Further, because the activation rates for breach of the conditions were high and the sentence for the new offense had to be served consecutively with the activated sentences, reduction in prison numbers was not achieved by the legislation.(8) Although a detailed academic analysis of these developments notes that the precise effects of the legislation are disputed, (9) its author adopted an unequivocal heading for his discussion of these events: "The Failure of Legislative Intention. …