An insight into judicial decision-making in district courts
ANALYSIS:District Court judges show faith in people’s ability to change, writes IAN O'DONNELL
THERE IS very little information available about what goes on in Irish courtrooms. In the absence of official data, newspaper reports of criminal cases offer a largely untapped resource, containing details of offences, trials and outcomes, including observations made by defendants, victims, judges, lawyers and members of An Garda Síochána.
In the national press, coverage is biased towards violent and sensational crimes. This influences public perceptions of crime and can elevate people’s level of anxiety so that it is out of all proportion to the real risks.
But local newspapers adopt a different style. The language in general tends to be dispassionate. Rather than concentrating on rare and heinous crimes, local newspapers report on quotidian, minor matters. The stories focus on the facts and seldom make value judgments about the offender. Nevertheless, a court report constitutes a potential source of embarrassment – or notoriety – for the persons concerned (as well as their families) on account of being publicly “named and shamed”.
A study recently completed at the UCD Institute of Criminology looked at about 600 articles about court proceedings culled from local newspapers such as the Connaught Tribune, Donegal Democrat, Mayo News and Roscommon Champion. These related almost exclusively to the district court. Judges’ remarks, as captured by the journalists in attendance, were scrutinised in an attempt to uncover the principles that may have animated their decision-making.
Examination of these comments revealed many of the factors that one would expect, including an emphasis on defendants’ prior criminal history, the seriousness of the crime, and the quality of the evidence. Expressions of remorse were taken seriously and defendants who entered guilty pleas or were co-operative with Garda investigations received a sentencing discount.
The clippings also yielded interesting findings on some of the background considerations that might impinge on the decision about how to make the punishment fit the crime, taking account of the circumstances of the offence and the characteristics of the offender.
Some theories of judicial decision-making posit that judges make causal attributions about the behaviour of defendants and this influences their level of punitiveness. According to this perspective, judges decide whether a person’s actions resulted from internal dispositional factors, such as personality traits, or from external situational factors, such as social circumstances. They also assess the extent to which they believe that the individual was in control and the act deliberate.
Proponents of such theories argue that judges who attribute criminal behaviour to internal, controllable and stable causes will be more punitive than those who attribute it to external, uncontrollable and unstable causes.
The vast majority of judges reported on in the local press placed responsibility squarely in the hands of the defendant. In general, they believed that offending occurred as a result of the individual’s own volition rather than through the influence of outside factors. In other words, they frequently made dispositional attributions about the people appearing before them.
Judges were concerned with establishing whether the crime was a one-off event or had occurred as part of an ongoing, stable pattern of behaviour. This was evident in the prominent position given to prior criminal history. In general, defendants with previous convictions could expect to receive harsher sentences than those who were in court for the first time.
As a group, judges seemed to attribute behaviour to internal, controllable and stable causes. Yet, contrary to what the academic literature would predict, they did not inflict harsh penalties as a result. This departure from what might have been expected is explained by the existence of a strong belief in the capacity of individuals to redeem themselves.
Demonstrating their belief in redeemability, judges were prepared to suspend prison sentences, or adjourn cases that could have led to a custodial sentence, to give the defendant an opportunity to demonstrate willingness to reform. They used the Probation Act and the court poor box to enable first-time or minor offenders to walk away without a conviction.
The guilty party was regularly offered a second chance, putting the onus on them to change. This was accompanied by a warning that the response would be harsher on any future occasion. These practices were designed to create a relationship of trust between the offender and the judge.
Despite favouring a rehabilitative model, judges did not often impose community- based sentences, which would have compelled offenders to engage, under supervision, with formal support services. While this could indicate a lack of faith in the utility of probation, there are several other possibilities.
It may be that judges believed that intensive intervention was not appropriate for the kinds of cases that are dealt with in the district court, or reflect the unavailability of suitable programmes in the area, or indicate a belief that meaningful change cannot be imposed, but must come from within.
Judges in Ireland enjoy wide discretion when sentencing. While this ensures that sentences can be tailored to individual circumstances, it can also lead to different outcomes for similar cases. The resultant disparities and inconsistencies can be difficult to interpret and, on occasion, give rise to concern and controversy.
An examination of local newspaper coverage suggests that these variations are rooted, to some extent at least, in an optimistic view of human nature. This is to be welcomed. The continued existence of a faith in the capacity of the individual law-breaker to choose another path may offer some protection against the rise in punitiveness that has become so evident in other jurisdictions.
Ian O’Donnell is professor of criminology at UCD. This article is based on a paper (with Deirdre Healy) that is forthcoming in the Irish Criminal Law Journal