Vol. 12 No. 11 (November 2002)
Reviewed by Gary Botting, Ph.D., LL.M. Faculty of Law, University of British Columbia.
SENTENCING AND SOCIETY represents an interesting backlash against inflexible policies of sentencing. The collection of papers approaches sentencing from a sociological perspective, and the general conclusion is that such policies are likely to lead to injustice and discrimination, rather than achieving greater accountability and transparency in sentencing.
The Centre for Sentencing Research at the University of Strathclyde became a major player in the sociology of sentencing, hosting an international conference in Glasgow in 1999 that drew delegates and contributors from a wide variety of academic backgrounds and juridical experience. For three days, judges, policy makers and law professors rubbed shoulders with professors of sociology, criminology, political science and social work. SENTENCING AND SOCIETY: INTERNATIONAL PERSPECTIVES presents about one-third of the papers of that conference with appropriate updates.
The volume addresses important questions that arise from traditional approaches to sentencing, which all too often have been governed by knee-jerk responses by the judiciary to media characterizations of ãpopulist punitiveness.ä The skewing of opinion in favour of harsher sentences arguably is a result of a press quick to squawk whenever an offender receives a reduced sentence ö one that perhaps reflects the facts presented in evidence rather than the opinions of columnists or commentators. In turn, judges are more sensitive to public criticism by the media than is generally assumed.
Several of the contributors document that the public in all jurisdictions polled have a misperception of judges as being too lenient based on assumptions and misinformation about the levels of sentencing (161). Large majorities of persons responding to questionnaires in both the U.K. and the U.S. provided estimates of current imprisonment rates for specific crimes such as rape, mugging and burglary which were far lower than those actually given by judges.
Misinformation in the popular press also arguably led lawmakers to enact draconian measures such as the ãThree Strikes and Youâre Outä law in Washington and California and a ãTruth in Sentencingä policy in states such as New Jersey. These policies have led to a staggering increase in incarceration in the U.S. in the past decade. Unfortunately they have been mirrored in other jurisdictions around the world, including the ãsentencing matrixä of Australia and the mandatory sentences of South Africa and Italy. Despite the fact that in China, nearly a quarter of the total criminal offences carry the penalty of life imprisonment, and the death penalty may be imposed in one-sixth of the 413 crimes listed in Chinaâs Criminal Code (133-135), the per capita rate of incarceration in the U.S. remains higher ö in fact, the highest in the world, narrowly beating out South Africa. The American statistics are all the more staggering considering that in the U.S., the per capita incarceration rate for blacks is 8.2 times that of the rate for whites (483). This is only marginally better than parallel statistics from Canada, which has an incarceration rate of Aboriginals 8.5 times the rate of non-Aboriginals (152).
Doris Marie Provineâs ãSentencing Policy and Racial Justiceä provides a startling analysis of the role of the courts in maintaining racial inequality in the U.S., attributed in part to ãthe Supreme Courtâs unwillingness to factor racially disproportionate impact into its thinking about the equal protection of lawä (492). The familiar attempt by sociologists to render their craft into a science emerges in neat sociological formulae for understanding the severity of sentencing for various crimes. One chapter approaches sentencing from the point of view of actuarial science. Another, ãThe Science of Sentencingä by Julia Davis, explores variations of the ãjust desertsä model Andrew von Hirsch first proposed in the 1970s.
With reference to his several books on sentencing that have appeared since then, Von Hirsh responds to his critics that his original purpose in formulating an ordinal-cardinal distinction in sentencing was to suggest that ãdesert can provide considerable guidance for some purposes (the comparative ordering of penalties), but less so for others (the fixing of the overall magnitude and anchoring points of the scale)ä (364). In her chapter, Davis responds that Von Hirsch ãhas taken two established technical terms, already used in the punishment debates, and changed their meaningsä (366).
A similar debate between Neil Hutton and Barbara Hudson leads Hudson to protest that Hutton has indulged in ãmisrepresentations of my workä (564). By and large, the collection avoids such squabbles, however. Hutton concludes the book with his assessment that ãto be more effective, the reform project needs to develop a more sophisticated understanding of this social field and feed this into the debateä (588). This is after all a collection of papers from a symposium, and is understandably fragmentary in its very attempt to unify its approach to sentencing via sociology. Although the contributors firmly place sentencing within the matrix of sociology and provide convincing assertions that much has to be done in order to achieve fairness and proportionality in sentencing, the volume offers few solutions to an enormous problem.
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Copyright 2002 by the author,
Gary Botting.