Monday, June 30, 2008

Another Not-So-Bright Idea

In its desperation to do something about the prison overcrowding crisis without admitting its own policies to be the root cause of it, the Government has just carried out a consultation on the creation of a Sentencing Commission, which borrows the idea of a 'sentencing grid' from a couple of American states, this grid being a device to allow the authorities to balance the length and number of prison sentences against available capacity. The Judges' Council and the Magistrates' Association, both sober and responsible bodies, have given this their consideration and have separately come out with overwhelming, devastating and reasoned dismissals of the idea. If you read between the lines of the responses you can almost feel the exasperation of learned thoughtful and reasonable practitioners at being presented with such an ill-thought-out mess.
Here are the responses (Borrowed from the excellent Criminal Solicitor dot net)
A summary of the response submitted by Her Majesty's Circuit Judges is set out below:

1. The Sentencing Process is but one of a number of factors that contribute to the prison population.
2. The proper exercise of a judicial discretion is not a cause of prison overcrowding.
3. The preservation of judicial independence is fundamental to an independent judicial system.
4. We are opposed to the creation of a Sentencing Commission. We do not believe it to be feasible and any perceived advantages are outweighed by major disadvantages.
5. There is a process for the promulgation of sentencing Guidelines which works and results in a consistency of approach. Consistency of approach not uniformity in outcome is the proper aim.
6. There are numerous statistics already available that can be used to achieve an acceptable level of predictability in relation to the sentencing process in the Crown Courts
7. Devising a framework to impose on a system that is not codified and where there are many anomalies and interests to take into account is almost impossible.
8. Even if a framework of some sort could be devised and imposed it would be a blunt instrument resulting in unfairness and injustice.
9. If the Government were to adopt a proposal for the creation of a Sentencing Commission this would be seen by this Council as a thinly disguised attempt by the State, which is responsible for the institution of criminal proceedings, to ensure that the State achieves the result it desires avoiding the inconvenient intervention of justice.
10. The American dream would result in a nightmare in England and Wales.

The response from the Magistrates Association sets out the following points:

o The ideas contained within this consultation paper, in so far as they affect the rights of the judiciary to determine a suitable sentence, taking account of both the offence committed and the offender, are unacceptable to the Magistratesâ?T Association
o The opportunity for a wide debate on Lord Carter's recommendation to consider the options for improving the balance between the supply of and demand for prison places is welcomed
o A system that collects data on which decisions can be made in an objective manner must be of benefit
o We recognise there needs to be an understanding by the administration of supply and demand for prison places and that advance planning and budgeting is good, but as we are dealing with human behaviour this cannot be predicted with accuracy whilst maintaining the flexible approach to sentencing
o Magistrates consider that they currently operate an appropriate structured sentencing framework and that this framework will be even more effective once the new guidelines are issued. There is scant recognition of this in the paper.
o Sentencing is a discrete art that requires the careful application of judicial discretion and common sense in every case to address the seriousness of the particular offence and the circumstances of the individual offender. Restriction of sentencing discretion would be a retrograde step.
o People are individuals. We would regret any changes which moved us towards a formulaic or mechanistic approach to sentencing
o Offences cannot have a standardised seriousness rating. The context of the offence changes the seriousness.
o Consistency of approach to sentencing is needed, not uniformity of sentence.
o The current guidelines already promote consistency in approach to sentencing because the judiciary must have regard to them or give reasons otherwise.
o The judicial system in England and Wales incorporates the principles of rehabilitation and prevention of re-offending. How are these elements to be addressed in any new sentencing framework?
o There is concern that the relationship between a Sentencing Commission and Government could lead to political and financial interference into the independence of sentencers and that appropriate sentencing could be jeopardised.
o Much could be achieved without the introduction of prescriptive sentencing processes similar to those in operation in some US states. If the system is so effective why has it not been introduced more widely?
o The Working Group itself does not consider the wholesale adoption of the system appropriate for England and Wales
o It is not necessary to dismantle the existing structures to achieve more accurate information required for strategic planning. This could be achieved by managing existing data more effectively to generate the appropriate information required for decision making
o Parliament has been extremely poor in not predicting the impact of its own legislation or acting on any predictions of prison population it has made, and improvement is highly desirable.

Here is The Times' report.

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