The Time of Punishment: Proportionality and the Sentencing of Historic Crimes

Abstract

How does the passage of time affect sentencing? Increasingly, courts around the world are being required to sentence offenders for crimes committed years or even decades earlier. Prevailing conceptions of harm and culpability change over time. Policy makers concerned with punishment and sentencing should be sensitive to changes in the absolute and relative seriousness of crimes as well as the absolute and relative severity of punishments. Ordinal rankings of offenses have evolved over the past 50 years, as has our understanding of the impact of various sanctions. Issues raised by sentencing for crimes committed much earlier illustrate the need for a time-sensitive approach. Should defendants be sentenced according to standards prevailing at the time of the offense or according to current standards? Courts in different jurisdictions have taken different positions on this question. Applying current standards amounts to retroactively re-calibrating the offender's culpability. This essay argues that offenders should be judged by the standards prevailing when they took the decision to offend. A time-sensitive approach would apply the sentencing standards of the earlier time, yet also consider time-relevant mitigation and aggravation in the period since commission of the offense. The offender's conduct and the victim's suffering during the period are both relevant factors. Although the emphasis in this essay is upon proportional sentencing, on any model the offence and the offender should never be treated as a moment in time, caught like an insect in amber. The passage of time often changes our evaluation of the offense and the offender, and when this occurs the nature of the sentence should change. The analysis also extends to long-serving prisoners, whose sentences should be reviewed after years have passed in case they are no longer deemed proportionate.