A Global Perspective on Sentencing Reforms

By Gazal-Ayal, Oren | Law and Contemporary Problems, Winter 2013 | Go to article overview
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A Global Perspective on Sentencing Reforms

Gazal-Ayal, Oren, Law and Contemporary Problems

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.

The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines. For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors? Should the guidelines bear some of the responsibility for the surge in prison population in the United States? Has the lack of guidelines helped Germany constrain its prison population? Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing? And how should guidelines be structured?

While previous studies analyzed some of the effects of sentencing reforms, many of those studies focused on the U.S. Sentencing Guidelines. This issue provides a broader insight from a global viewpoint, including studies of England and Wales, Australia, Germany, and Israel. It also gives a post-Blakely (1) and post-Booker (2) perspective of American sentencing guidelines.

Julian Roberts in his contribution reviews the recent developments in the Sentencing Guidelines in England and Wales. (3) Apart from the United States, England and Wales have the most developed sentencing guidelines system. However, unlike most American guidelines, the guidelines in England and Wales do not rely on a grid system with a specific presumptive sentence or a narrow sentencing range. Instead, England and Wales promote uniformity of approach by prescribing a sequence of steps for courts to follow when sentencing an offender. In addition, the guidelines allow sentencers wide discretion to depart from them when it is in the interests of justice to do so.

One of the key functions of sentencing guidelines is to constrain both legislators and sentencers from periodic surges of punitiveness. In August 2011, mass riots took place in a number of English cities, creating an unexpected challenge for the English sentencing guidelines. A number of courts held that the offenses were so far removed from conventional offenses that the sentencing guidelines were rendered irrelevant. An early judgment of a lower court outlined new (harsher) "guidelines" for offenders involved in the riots. These unofficial guidelines were immediately followed by a number of other courts.

Although the Court of Appeal criticized Crown Court judges for issuing or appearing to issue new guidelines, it endorsed the position that riot-related offenses are of a nature and gravity not envisaged by the original sentencing guidelines, and that courts could thus be justified in departing from the original guidelines. It therefore seems that the official guidelines did not serve to curtail the punitive effect of the temporary public outcry that followed the riots.

England and Wales represent a useful model for exploring the difficulties sentencing guidelines have in containing novel or unexpected waves of punitive surges. In contrast, the U.S. federal sentencing system shows how, by giving legislators a tool for directly influencing sentencing, guidelines can boost the effects of moral panics on sentencing. Carol Steiker highlights the risks of direct legislative intervention by showing how Congress--unperturbed by the concerns of the sentencing commission and the judiciary--used the sentencing guidelines and statutory mandatory minimums to increase sentences for crack cocaine and child pornography offenses.

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