Information vital to sentencing and punishment
Discretion allows for compassion; limiting one could mean eclipse of the other
As the Law Reform Commission outlined this week in its latest report, a context needs to be created where justice is transparently fair. Photograph: Bryan O’Brien
From time to time the decisions made by judges cause astonishment and dismay. This is particularly the case when violent or predatory offenders walk free from court after conviction.
Tailoring of sentences to individual circumstances, central to our legal system, can lead to vastly different outcomes for similar cases. Such inconsistency is sometimes interpreted by the public as evidence of capriciousness coupled with remoteness from community sentiment.
This is not solely an issue for the most serious crimes. At the District Court, where minor offences are disposed of, the limited available information indicates that the use of custody varies widely around the State, suggesting the existence of a degree of justice by geography.
These variations raise important questions about the objectives of punishment and whether current arrangements are fit for purpose.
Sentencing involves a range of competing – and sometimes incompatible – aims such as retribution, incapacitation, deterrence, reparation and rehabilitation. It also has an educative value. Offenders should know that their treatment is not arbitrary. Victims should feel their voices have been heard. The public should appreciate that a measured response has been taken.
‘Out of touch’
When even those close to the system are bemused by aspects of sentencing practice, and when the public’s angry bewilderment is translated into demands for greater control over “out of touch” judges, it is obvious why the legislature might intervene.
This has happened in the past regarding possession or importation of drugs above a specified value, where 10-year minimum sentences were introduced, and for a number of firearms offences which have five-year or 10-year terms. There are occasional calls for a similar regime to be applied to rapists, but with a higher starting point.
However, minimum sentences are not the answer. The evidence from countries where they have been introduced is that they increase prison populations without reducing crime or improving public safety.
Although less structured than elsewhere, sentencing in Ireland is not devoid of principles. Perhaps the most important one is that the punishment must be proportionate to the gravity of the offence and the personal circumstances of the offender.
While this principle is simple to express, the balance it entails is difficult to strike and constitutes the nub of the sentencing dilemma. What weight should be given to the harm done (or risked) and the offender’s state of mind? How should the assessment of seriousness be influenced by socio-economic factors, expressions of remorse, the victim’s view, and the choice of plea? Where should the penalty scale be anchored and how can crimes be ranked?
In addition, should consideration be given to previous convictions or predictions of future dangerousness? The horrific killing of Jill Meagher in Australia by a convicted multiple rapist on parole shows that recidivist offenders are a problem everywhere.
At the heart of the proportionality principle is the need to hold in view simultaneously the offence and the offender. Such a requirement allows a degree of latitude that would be considered unacceptable in other jurisdictions.
But discretion allows for compassion and the limiting of one can lead to the extinguishment of the other. What is valuable about the situation in Ireland, despite its limitations, is that space remains for the kind of humane response that renders sentencing individualised and just. The flipside, of course, is that unfettered discretion permits excesses of severity and leniency.
As the Law Reform Commission outlined this week in its latest report, the solution is to create a context where justice is transparently fair. This requires discretion underpinned by principles rather than hemmed in by rules.
The commission also expressed concern about the plight of life-sentence prisoners and recommended that they should be given an indication of how long they are likely to serve when they are sentenced and that the timing of their release should be considered by an independent parole board.
The most satisfactory approach to the punishment of offenders is one that retains sufficient flexibility to keep justice to the fore but where the decision-making process is clear and consistent. Vital to any such approach is the provision of information about actual sentencing practice.
Judges are resistant to any initiative that might seem to weaken their independence. But the provision of better information about what they do, and why, could have the opposite effect. If the rationale for sentencing was elucidated, divergent outcomes would be less confusing and, probably, less controversial.
Ian O’Donnell is professor of criminology at University College Dublin