To date, scholarship on sentencing guidelines has understandably focused on the experiences across the United States, where guidelines have been evolving since the 1970s. Unlike other American innovations, the U.S. guideline schemes have failed to find a market outside of the United States. Canada explicitly rejected the use of presumptive guidelines in the 1980s, Western Australia in 2000, while England and Wales declined their adoption in 2008. (1) Having rejected the U.S. model, a number of other jurisdictions have been developing guideline schemes of different kinds. (2) Among these countries, England and Wales has made the greatest progress; definitive guidelines have now been issued for most offenses. In fact, this is the only jurisdiction (3) outside the United States to have developed and implemented a comprehensive system of guidance, consisting of offense-specific guidelines as well as generic guidelines. (4) This article describes and explores recent developments in England. (5)
Although the effects of various reforms and specific guidelines have been studied for decades, it is too early to draw definitive conclusions about the impact of English sentencing guidelines in practice. This observation will surprise scholars who have been aware of the evolving English guidelines since 1999. Why, one may reasonably ask, are we only now beginning to understand the effects of these guidelines? The explanation lies in fact that until relatively recently, the guidelines authority in this jurisdiction lacked the mandate and the resources to monitor the application of its own guidelines. Fortunately, this state of affairs is now changing.
A. Overview of Article
Developments in England carry important lessons for other jurisdictions, particularly those interested in structuring sentencers' discretion without adopting a U.S.-style sentencing grid. Part I offers some brief commentary on the historical origins of the guidelines. This is followed by a concise chronology of recent events, including passage of the Coroners and Justice Act 2009. This Act amended the compliance requirement on courts and created a new statutory guidelines authority that commenced its work in April 2010.
The Sentencing Council of England has significantly broader powers and responsibilities than its predecessors, and correspondingly has greater research resources as well. The Council has revamped the guideline structure and the new format is described using a common offense to illustrate the English sentencing methodology. The final section of the article addresses some important challenges confronting the English guidelines and the Sentencing Council. This includes the way in which guidelines and guidelines authorities respond to novel or unexpected waves of criminality that have the potential to create a "punitive surge." England was confronted with such a scenario in August 2011 when riots took place in many cities, and I describe the role and response of the courts and the guidelines. To the extent possible, the discussion is situated within the context of the guideline schemes found in the United States and proposed in New Zealand.
B. The Context
Like judges in almost all other common law jurisdictions, sentencers in England have long enjoyed wide discretion, restricted only by appellate review and a limited number of mandatory sentences. All of this changed in 1998 with the creation of an advisory body, the Sentencing Advisory Panel (SAP), a development that marked the inception of more structured sentencing. The SAP was responsible for advising the Court of Appeal Criminal Division, which then considered this advice in developing its guideline judgments. (6) In 2003, the guidelines movement shifted up a gear when the Criminal Justice Act 2003 created a second statutory body, the Sentencing Guidelines Council (SGC). (7) Henceforth, the SAP provided its advice to the SGC, which then devised and ultimately issued definitive guidelines following extensive consultation. …