Julian Roberts has a new article that explains sentencing reforms recently implemented in England pursuant to the Coroners and Justice Act 2009. It is interesting to see that the political dynamic in England is quite reminiscent of the ongoing debates over guidelines and judicial discretion in the federal sentencing system here.
England has had sentencing guidelines for more than a decade, but there have been concerns that judges do not follow them consistently. (Curiously–and in marked contrast to the U.S. experience–England’s guidelines were set up without any systematic data-collection process to monitor compiance. However, one study in 2008 suggested that only about half of cases are sentenced within the guidelines range.) As a result, legislation was proposed to give the guidelines more of a presumptive character.
Before 2009, English law mandated that sentencing courts “must have regard to any guidelines which are relevant to the offender’s case.” Moreover, if a sentence was imposed outside a recommended range, the court was obliged to state its reasons.
This seems qutie similar to the post-Booker federal system, in which sentencing courts must “consider” the guidelines range, and in which explanations must be given for variances from a recommended range, but little or no explanation is required when the guidelines are followed.
In any event, as originally proposed, the English reform would have mandated that “[e]very court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case . . . unless the court is satisfied that it would be contrary to the interests of justice to do so.” Additional language would have specified that the duty to “follow” the guidelines included a duty to impose “a sentence which is within the range of sentences specified in the guidelines in relation to that category of cases.”
However, as happens here when Congress considers tightening up our guidelines system, the English proposal generated strong opposition from judges and lawyers. As a result, the legislation as actually enacted softened the presumptiveness quite a bit. Although it preserved the “must follow” language of the original proposal, the meaning of the language was modified. Thus, “following the guidelines” does not entail imposing the sentence “specified in the guidelines in relation to . . . the category [of the case],” but rather “a sentence which is within the [much wider] offence range.”
Roberts gives an example. The English robbery guideline divides robbery into three categories based on seriousness. The guidelines range for the least serious category is 0-3 years, while the range for the most serious is 7-12 years. Under the original reform proposal, following the guidelines in a given robbery case meant imposing a sentence within whichever of the three specific ranges applied to the case. Under the law as enacted, following the guidelines means imposing a sentence anywhere within the overall robbery range, i.e., 0-12 years.
Does this mean that the specific categories are now irrelevant? Not exactly. The new law states that, when sentencing an offender, the court has “a duty to decide which of the categories most resembles [the offender's] case in order to identify the sentencing starting point in the offence range.”
In other words, the guidelines are intended to function as a “starting point” — again, very reminiscent of the post-Booker federal system.
Both systems, it seems to me, are ones in which the sentencing judge’s discretion is procedurally, but not substantively, limited. I find this approach to guidelines and discretion quite appealing. It preserves ample room for individualized sentencing, but also tends to channel the exercise of discretion in a more uniform direction than does a system without guidelines at all. Although judges have considerable freedom to thumb their noses at the guidelines if they wish, the process of determining the guidelines range as a “starting point” is apt to give judges a certain sense of investment in the guidelines and will to some extent condition the ultimate decisions. (Psychologists refer to the influence of starting points on outcomes as the “anchoring effect,” and much research suggests that even arbitarily selected starting points may serve as anchors.)
In the U.S., we have been debating how to balance individualization and uniformity in sentencing since the 1970′s. The convergence of the English and post-Booker federal systems around the process-based approach may point to the optimal solution.
Roberts’ article is “Sentencing Guidelines and Judicial Discretion: Evolution of the Duty of Courts to Comply in England and Wales,” 51 Brit. J. Criminology 997 (2011).