Abstract
In Sentencing: A Social Process – Re-Thinking Research and Policy, Cyrus Tata argues that current academic and policy thinking about sentencing is fundamentally limited by a tendency towards an individuating perspective. Tata divides contemporary sentencing literature into two broad camps: the ‘legal-rational’ and ‘judicial-defensive’ traditions (pp. 14–15). The former is concerned with the danger of discretion resulting in irrational and inconsistent decision-making, contrary to values such as fairness and equality before the law. The latter posits that each case is wholly unique, and that doing justice therefore requires a certain amount of discretion to prevent overly mechanical application of laws to incommensurable hard cases.
Tata argues that while these two traditions are normatively opposed, both agree on an ontological level that sentencing practice involves trade-offs between mutually exclusive domains of law against fact, and rule against discretion. This tendency in sentencing literature towards ‘autonomous individualism’ (p. 24) conceives of sentencing as a series of professional domains in which individual decision-makers ‘own’, and exert independent control over, parts of the process. For the legal-rational tradition, this renders sentencing a process of individual decision-making by judges, which requires rationalisation to prevent inconsistency. The judicial-defensive tradition, conversely, is an attempt to protect judges’ ownership of the discretion to dispose of individual offenders. In this regard, Tata joins an increasing trend in criminal law and justice theory to critique the foundations of liberal theory – in this case, the Lockean equation of property ownership with freedom – and the implications thereof for criminal policy.
By contrast, Tata’s social approach identifies three characteristics of sentencing. It is, firstly, interpretive, in that the interface between rules and facts is, necessarily dynamic. Facts are created by actively separating them from their wider contexts, in ways that demand processes of ‘normalisation and standardisation’ (p. 57) to fit the cognitive processes of sentencing decision-makers, to enable comparison with other cases, and to meet the demands of the rules to be applied. In short, ‘meaning is constituted by relationships’ (p 148, original emphasis), rather than predating the examination in any objective form. This means that sentencing requires not just a granular analysis of individual (aggravating and mitigating, offence- and offender-related) ‘factors’, but a ‘typified whole offence approach’ (p. 60) that looks at the way in which these factors interweave and interconnect in the particular case. The main advantage of this perspective is that sentencing academics can simultaneously achieve consistency and fidelity to individual facts: ‘[a]n interpretive approach enables research to take seriously the plea of judges that decision-making is contextual, but without then opening the door to the empirical defeatism of the judicial-defensive tradition’ (p. 149). Critically, this means that sentencing guidelines and other means of channelling judicial discretion must be alive to the social interactions that characterise the sentencing process, and recognise their own limits.
Sentencing is, secondly, the product of an ongoing process, and not just the momentary application of settled law to settled facts by judges. Those involved in and around the sentencing hearing – Tata principally considers judges, lawyers, probation officers, and other ‘therapeutic’ (p. 108) professionals – are also therefore engaged in the co-production of facts, and thus, the application of rules to those facts. The construction of both rule and fact is therefore always subject to the exercise of professional discretion, rendering the rules-versus-discretion binary illusory, or at least non-zero-sum. To at least some extent, judges retain de facto discretion even in the presence of more systematising de jure rules governing their decision-making.
However, because sentencing workers are conceived as atomised, independent actors, each with their own isolated part in the process, sentencing is limited in terms of how far it can actually engage with the causes of offending. Individualism ‘saddles the professional with instances of collective, social problems’ (p. 85), which the professional must then manage in that instance, precluding any meaningful engagement with systemic injustices and the social causes of crime by diverting collective attention from them. This tendency renders social problems perceivable only as individual cases, and even desensitising decision-makers to endemic social problems, reinforcing the view of imprisonment as a default punishment and undermining efforts towards diversion from criminal justice. As a result, Tata argues that proportionality and parsimony need to be written far more explicitly into the system, to prevent the warehousing of problem individuals who cannot be dealt with elsewhere in an under-funded social welfare system. In this way, Tata links his analysis of professional courtroom practice and culture to wider debates around mass incarceration and over-punishment more generally, arguing that neither the technological rationalisation of sentencing nor the return to a nostalgic vision of penal-welfarist therapeutic discretion can offer solutions to the challenges that courts (and therefore wider penal systems) face.
The third quality of sentencing on a social account is that it is performative. By this, Tata means that ‘sentencing work is done in the performance of communication – there is no other essence of cases, facts, or decisions apart from their performance’ (p. 148, original emphasis). Professionals perform their various roles, in service of their duties, and acculturated by their professional traditions and practice. Importantly, this performative element (in which the subjects of criminal justice processes are themselves involved) denies the possibility of a sharp distinction between the ‘legal’ imposition of the sentence, which is punishment, and the ‘therapeutic’ enforcement of that sentence (p. 108). A key site of interaction is the ‘humanisation work’ (p. 97) done in providing sentencing authorities with information about the offender’s characteristics, background, and context, for instance through pre-sentence reports. Tata argues that this work helps to encourage guilty pleas and therefore supports the expeditious disposal of cases, by encouraging the production of ‘ideal clientele’ (p. 107). By acting as though each stage of the sentencing process is a black box, inaccessible to other autonomous professionals, the system encourages defendants to perform in a way that serves their perceived self-interest (i.e. to reduce their potential sentence by expressing remorse and accepting the validity of the system), and that performance is transformed into a procedurally useful means of achieving expeditious guilty pleas, while simultaneously reinforcing the internal legitimacy of proceedings. Notably, this is not collusion by connivingly selfish professionals, but a result of their refusal to recognise the implications of the inherently interrelated nature of their roles, or how defendants respond to it.
To combat this, Tata advocates for a re-definition of the concept of ‘efficiency’, which focuses on the efficient production of justice rather than the efficient disposal of cases: ‘The output of a justice system must, by definition, be justice. Therefore, an approach which pits the quality of justice against case-volume throughput cannot be “efficient”’ (p. 154). What seems like a necessary trade-off when discretion is viewed as the individual property of atomised professionals becomes a debateable quantity on the social account, since we can identify fresh drivers of inefficiency in the interaction between formally separate actors and institutions within the trial process, without sacrificing the sanctity of justice values. Doing this justice also means reassessing the ends of sentencing, and the impacts that trial and punishment have upon the punishment of offenders. Tata comes close here to the precepts of Actor-Network Theory, with his talk of the unintended interactions of institutions, systems, and processes, but he does not explicitly engage with it. Deploying this framework in future research would prove a useful way of highlighting specific interactions that create the problems that Tata identifies.
Generally speaking, Tata’s arguments are persuasive, coherent, and nuanced, although by his own admission, he does not entirely dismiss the wider concerns about dehumanising, managerial standardisation that are played out in sentencing debates about rules versus discretion, or technology versus traditional court decision-making. At times, for instance, Tata elides having any discretion with having enough discretion, and assumes that there is room within the everyday social construction of cases to achieve sufficient discretion for judges to achieve justice in hard cases, even within standardised systems. Whether this residual, practical discretion is ‘enough’ – and what ‘enough discretion’ even means – are left as open questions. Contemporary movements towards computerised, algorithmic justice, and the impact of virtual courts conducted by live-link on decision-making and fact creation, for instance, are not really considered in his survey of technological incursions into the traditional court. Still, Tata provides us with a starting point for action, and for prioritising what really matters in sentencing practice, and indeed, he provides a conceptual framework with which to resist the dystopian end points often imagined for the mechanisation of sentencing.
Tata’s book is ultimately a call to arms, an invitation to rethink existing orthodoxies and to broaden the scope of academic writing and thinking about the nature of sentencing. It is written predominantly with academic audiences in mind, and occasionally assumes that the reading is familiar with concepts from social theory and political philosophy. However, it is eminently approachable, and deserves to be widely read.
