Abstract
This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical–political grounds.
Highlights
Judicial discomfort with wide sentencing discretion is not unknown, nor is it a thing of the past
This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime
This ideal requires trial judges to have what may be termed ‘‘substantial’’ sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of valuebased engagement that provides the justification for the decision
Summary
The claim that sentencing discretion generates unwarranted disparity in sentencing outcomes is supported by three interrelated assumptions: First, that comparable cases are sentenced differently by different judges; second, that these differences at least in part reflect individual judges’ differing penal-philosophical outlooks and/or unconsidered biases and personal attitudes; and third, that it is on account of inadequate constraints on sentencing that such differences persist. Others suggest that the best way to overcome unwarranted disparity, and avoid introducing fresh grounds for unfairness through unwarranted uniformity, lies in methods that harness the advantages of structured and self-reflective decision-making while preserving flexibility of outcomes within broadly set boundaries. My discussion in this Part focuses on studies that compare how judges consciously arrive at their decisions.
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