Consistency and Fairness in Sentencing

Abstract

Sentencing law is so indeterminate that it has been labeled the `high point in antijurisprudence'.1 The vast discretion left to judges when sentencing has resulted in widespread inconsistency in sentencing. The most obvious manner to attenuate judicial discretion is to introduce a comprehensive fixed penalty regime. Fixed penalties however, are almost universally condemned. They are regarded as unjust because they are universally too harsh and they fail to account for differences between individual defendants. This paper argues that both of these criticisms can be circumvented by adopting a primary rationale for sentencing, hence paving the way for a fixed penalty system which would constitute a significant improvement to the present sentencing system.