Conceptions and representations of the sentencing decision process

Journal of Law and Society

Volumn 24, Issue 3, 1997, Pages 395-420

  Tata, Cyrus ^a  

^a UNIVERSITY OF STRATHCLYDE   (United Kingdom)

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EID: 0038873542     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-6478.1997.tb00004.x     Document Type: Article

References (147)

1. For example, K.C. Davis, Discretionary Justice: A Preliminary Inquiry (1969);
2. Lord Taylor, 'Judges and Sentencing' 38(4) J. of the Law Society of Scotland 129-31.
3. N. Lacey, 'The Jurisprudence of Discretion: Escaping the Legal Paradigm' in The Uses of Discretion, ed. K. Hawkins (1994) at 377.
4. J. Rumgay, 'Custodial Decision-Making in a Magistrates' Court' (1995) 35 Brit. J. of Criminology at 202.
5. Generally, I will refer to judicial sentencing as opposed to sentencing by other bodies such as prosecutors.
6. A. Ashworth, E. Genders, G. Mansfield, J. Peay, and E. Player, 'Sentencing in the Crown Court: Report of an Exploratory Study', University of Oxford Centre for Criminological Research, occasional paper no 10 (1984); Taylor, op. cit., n. 1.
7. A. Ashworth, E. Genders, G. Mansfield, J. Peay, and E. Player, 'Sentencing in the Crown Court: Report of an Exploratory Study', University of Oxford Centre for Criminological Research, occasional paper no 10 (1984); Taylor, op. cit., n. 1.
8. R. Hood, Sentencing in Magistrates' Courts: a study in variation of policy (1962) at 16.
9. L.T. Wilkins, 'Perspectives on Court Decision-Making' in Decision-Making in the Criminal Justice System: Reviews and Essays, ed. D.M. Gottfredson (1975) at 69.
10. For example, Scottish Office, Criminal Proceedings in the Scottish Courts 1992 (1993); Home Office, Notifiable Offences (1996) ; Home Office, Cautions, Court Proceedings and Sentencing: England and Wales 1994 (1995).
11. For example, Scottish Office, Criminal Proceedings in the Scottish Courts 1992 (1993); Home Office, Notifiable Offences (1996) ; Home Office, Cautions, Court Proceedings and Sentencing: England and Wales 1994 (1995).
12. For example, Scottish Office, Criminal Proceedings in the Scottish Courts 1992 (1993); Home Office, Notifiable Offences (1996) ; Home Office, Cautions, Court Proceedings and Sentencing: England and Wales 1994 (1995).
13. The principle issue of similarity concerns the judged 'seriousness' of cases.
14. K.W. Patchett and J.D. Mclean, 'Decision-making in juvenile cases' (1962) Criminal Law Rev. 699-710.
15. E. Green, Judicial Attitudes in Sentencing: A study of the Factors underlying the Sentencing Practice of the Criminal Court of Philadelphia (1961).
16. Hood, op. cit., n. 6.
17. R. Tarling, Sentencing Practice in Magistrates' Courts (1979).
18. id., at p. 14.
19. 15 id., at p. 27.
20. Ashworth, et al., op. cit., n. 5; C. Fitzmaurice and K. Pease, The Psychology of Judicial Sentencing (1986); Hood, op. cit., n. 6; R. Hood, in collaboration with G. Cordovil, Race and Sentencing : A Study in the Crown Court (1992).
21. Ashworth, et al., op. cit., n. 5; C. Fitzmaurice and K. Pease, The Psychology of Judicial Sentencing (1986); Hood, op. cit., n. 6; R. Hood, in collaboration with G. Cordovil, Race and Sentencing : A Study in the Crown Court (1992).
22. Ashworth, et al., op. cit., n. 5; C. Fitzmaurice and K. Pease, The Psychology of Judicial Sentencing (1986); Hood, op. cit., n. 6; R. Hood, in collaboration with G. Cordovil, Race and Sentencing : A Study in the Crown Court (1992).
23. Ashworth, et al., op. cit., n. 5; C. Fitzmaurice and K. Pease, The Psychology of Judicial Sentencing (1986); Hood, op. cit., n. 6; R. Hood, in collaboration with G. Cordovil, Race and Sentencing : A Study in the Crown Court (1992).
24. L. Nicholson, The Deferred Sentence in Scotland (1992).
25. J. Shapland, Between Conviction and Sentence: the Process of Mitigation (1981).
26. N. Hutton, C. Tata, and J. Wilson, 'Sentencing and Information Technology: Incidental Reform?' (1995) 2 International J. of Law and Information Technology 255-86.
27. I am using the term 'conviction' to refer to official, legal taxonomy - sections of Acts of Parliament, headline common law terms.
28. One notable exception is in M. Walker, 'Criminal Justice and Offenders' in Interpreting Crime Statistics, ed. M. Walker (1995) at 28-9.
29. The term 'case' is used in variety of contexts with differing meanings. In the context of sentencing it refers to one person sentenced, even if for more than one conviction.
30. N. Hutton, A.A. Paterson, C. Tata, and J.N. Wilson, 'A Prototype Sentencing Information System for the High Court Justiciary: Report of the Study of Feasibility' (1996).
31. This tends to be the approach taken by systems of recording information which rely on an administrative source for their data. For example: 'Where more than one conviction receive the same (or a combined penalty), then the main charge is the one judged by the police (who provide the information) to be the most serious.' (Scottish Office, op. cit., n. 8).
32. H. Parker, M. Sumner, and G. Jarvis, Unmasking the Magistrates (1989); Hood, op. cit., n. 16; I. Potas, 'The Sentencing Information System of New South Wales: Promoting Consistency in Sentencing Through Computerisation' (paper presented to The Commonwealth Magistrates and Judges Association, Sydney, 1991); N. Hutton, and C. Tata, Patterns of Custodial Sentencing in the Sheriff Court (1995); C. Tata, J. Wilson, and N. Hutton, 'Representations of Knowledge and Discretionary Decision-Making by Decision Support Systems' (1996) 1 J. of Information, Law and Technology, http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/.
33. H. Parker, M. Sumner, and G. Jarvis, Unmasking the Magistrates (1989); Hood, op. cit., n. 16; I. Potas, 'The Sentencing Information System of New South Wales: Promoting Consistency in Sentencing Through Computerisation' (paper presented to The Commonwealth Magistrates and Judges Association, Sydney, 1991); N. Hutton, and C. Tata, Patterns of Custodial Sentencing in the Sheriff Court (1995); C. Tata, J. Wilson, and N. Hutton, 'Representations of Knowledge and Discretionary Decision-Making by Decision Support Systems' (1996) 1 J. of Information, Law and Technology, http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/.
34. H. Parker, M. Sumner, and G. Jarvis, Unmasking the Magistrates (1989); Hood, op. cit., n. 16; I. Potas, 'The Sentencing Information System of New South Wales: Promoting Consistency in Sentencing Through Computerisation' (paper presented to The Commonwealth Magistrates and Judges Association, Sydney, 1991); N. Hutton, and C. Tata, Patterns of Custodial Sentencing in the Sheriff Court (1995); C. Tata, J. Wilson, and N. Hutton, 'Representations of Knowledge and Discretionary Decision-Making by Decision Support Systems' (1996) 1 J. of Information, Law and Technology, http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/.
35. H. Parker, M. Sumner, and G. Jarvis, Unmasking the Magistrates (1989); Hood, op. cit., n. 16; I. Potas, 'The Sentencing Information System of New South Wales: Promoting Consistency in Sentencing Through Computerisation' (paper presented to The Commonwealth Magistrates and Judges Association, Sydney, 1991); N. Hutton, and C. Tata, Patterns of Custodial Sentencing in the Sheriff Court (1995); C. Tata, J. Wilson, and N. Hutton, 'Representations of Knowledge and Discretionary Decision-Making by Decision Support Systems' (1996) 1 J. of Information, Law and Technology, http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/.
36. H. Parker, M. Sumner, and G. Jarvis, Unmasking the Magistrates (1989); Hood, op. cit., n. 16; I. Potas, 'The Sentencing Information System of New South Wales: Promoting Consistency in Sentencing Through Computerisation' (paper presented to The Commonwealth Magistrates and Judges Association, Sydney, 1991); N. Hutton, and C. Tata, Patterns of Custodial Sentencing in the Sheriff Court (1995); C. Tata, J. Wilson, and N. Hutton, 'Representations of Knowledge and Discretionary Decision-Making by Decision Support Systems' (1996) 1 J. of Information, Law and Technology, http://elj.warwick.ac.uk/elj/jilt/artifint/2tata/.
37. Potas, id; Scottish Office, op. cit., n. 8.
38. Potas, id; Scottish Office, op. cit., n. 8.
39. Hutton and Tata, op. cit., n. 25; Tata et al., op. cit., n. 25.
40. Hutton and Tata, op. cit., n. 25; Tata et al., op. cit., n. 25.
41. Hutton et al., op. cit., n. 23.
42. Hutton and Tata, op. cit., n. 25.
43. Some apparent support for this view can be found in A. Alschuler, 'The Failure of Sentencing Guidelines: A Plea for Less Aggregation' (1991) 58 University of Chicago Law Rev. 901-51;
44. D. Parton, M. Hansel, and J.R. Stratton, 'Measuring crime seriousness: lessons from the national survey of crime severity' (1991) 31 Brit. J. of Criminology 72-85.
45. Ashworth et al., op. cit., n. 5.
46. Hutton et al., op. cit., n. 19.
47. In this context, the term 'offences' is intended to be distinguished from 'convictions' which refers to the strict criminal law charge of which a person was convicted. I refer to 'offences' in a broader way to include information which is meaningful to the sentencer concerning the incident(s) surrounding the commission of the conviction (this is perhaps akin to what lawyers call 'the facts' of a case as meaningful to the sentencer).
48. For example, T. Weigend, 'Sentencing in West Germany' (1983) Maryland Law Rev. at 63, observes that: 'German courts . . . treat sentencing as a subsidiary to the overriding concern in the information-gathering phase of adjudication: the determination of guilt or innocence.'
49. J. Shapland, 'Who Controls Sentencing? Influences on the Sentencer' in The Psychology of Sentencing: Approaches to Consistency and Disparity, eds. D.C. Pennington and S. Lloyd-Bostock (1987).
50. id., p. 78.
51. See, for example, D. McBarnett, Conviction Law, the State and the Construction of Justice (1981).
52. J. Baldwin, Pre-Trial Justice: a Study of Case Settlement in Magistrates' Courts (1985).
53. W. Waegel, 'Case Routinization in Investigative Police Work' (1981) 28 Social Problems 263-75, at 265. Original emphasis retained.
54. On the idea of 'normal crimes', see D. Sudnow, 'Normal Crimes: sociological features of the penal code in a public defender office' (1964) 12 Social Problems 255-76.
55. S.R. Moody, and J. Tombs, Prosecution in the Public Interest (1982).
56. id., p. 45.
57. 43 id., pp. 53-4.
58. P. Duff, 'Diversion From Prosecution Into Psychiatric Care: Who Controls the Gates?' (1997) 37 Brit. J. of Criminology 15-35.
59. Sudnow, op. cit., n. 40.
60. id., p. 260.
61. 47 id., pp. 261-2.
62. J. Curran, and G. Chambers, Social Enquiry Reports in Scotland (1982).
63. S. Brown, Magistrates at Work: Sentencing and Social Structure (1991) at 9.
64. H. Giller and A. Morris, '"What Type of Case is This?" Social Workers' Decisions about Children Who Offend' in Discretion and Welfare, eds. M. Adler and S. Asquith (1981).
65. id., at pp. 79-80.
66. A.S. Elstein, L.S. Shulman, and S.A. Sprafka, Medical Problem Solving (1978).
67. R.M. Emerson, 'Holistic Effects in Social Control Decision-Making' in The Law and Society Reader, ed. R. Abel (1995) 161-84.
68. Shapland, op. cit., n. 18.
69. Ashworth et al., op. cit., n. 5.
70. M. Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court (1979) 167-77.
71. Shapland, op. cit., n. 35; R. Ericson, Making Crime: A study of Detective Work (1981); R. Ericson, Reproducing Order: A study of Police Patrol Work (1982).
72. Shapland, op. cit., n. 35; R. Ericson, Making Crime: A study of Detective Work (1981); R. Ericson, Reproducing Order: A study of Police Patrol Work (1982).
73. Shapland, op. cit., n. 35; R. Ericson, Making Crime: A study of Detective Work (1981); R. Ericson, Reproducing Order: A study of Police Patrol Work (1982).
74. In this sense we might usefully think about the site of the sentencing decision process beyond that of the decision-making institution (the sentencing judge), but located through the criminal process.
75. L. Nicholson, The Deferred Sentence in Scotland (1992).
76. id., at p. 14.
77. B. Barnes, Interests and the Growth of Knowledge (1977).
78. P. van Duyne, 'Simple Decision Making' in Pennington and Lloyd-Bostock, op. cit., n. 35, at p. 147.
79. id. An 'open problem' is characterized by van Duyne as one where the problem-solver cannot objectively and irrefutably determine whether his or her solution is the correct one.
80. Tata et al., op. cit., n. 25.
81. Hutton et al., op. cit., n. 19.
82. Ashworth et al., op. cit., n. 5.
83. For example, see G. Nicholson, Sentencing: Law and Practice in Scotland (2nd ed., 1992); N. Walker and N. Padfield, Sentencing: Theory, Law and Practice (2nd ed., 1996); C.K. Boyle and M.J. Allen, Sentencing in Northern Ireland (1990); M. Findlay, S. Odgers, and S. Yeo, Australian Criminal Justice (1994), see 213-46.
84. For example, see G. Nicholson, Sentencing: Law and Practice in Scotland (2nd ed., 1992); N. Walker and N. Padfield, Sentencing: Theory, Law and Practice (2nd ed., 1996); C.K. Boyle and M.J. Allen, Sentencing in Northern Ireland (1990); M. Findlay, S. Odgers, and S. Yeo, Australian Criminal Justice (1994), see 213-46.
85. For example, see G. Nicholson, Sentencing: Law and Practice in Scotland (2nd ed., 1992); N. Walker and N. Padfield, Sentencing: Theory, Law and Practice (2nd ed., 1996); C.K. Boyle and M.J. Allen, Sentencing in Northern Ireland (1990); M. Findlay, S. Odgers, and S. Yeo, Australian Criminal Justice (1994), see 213-46.
86. For example, see G. Nicholson, Sentencing: Law and Practice in Scotland (2nd ed., 1992); N. Walker and N. Padfield, Sentencing: Theory, Law and Practice (2nd ed., 1996); C.K. Boyle and M.J. Allen, Sentencing in Northern Ireland (1990); M. Findlay, S. Odgers, and S. Yeo, Australian Criminal Justice (1994), see 213-46.
87. For example, see: F. Kort, 'Content Analysis of Judicial Opinions and Rules of Law' in Judicial Decision-Making, ed. G. Schubert (1963); J. Hogarth, Sentencing as a Human Process (1971); Hood, op. cit., n. 16; Hutton and Tata, op. cit., n. 25; A. Lovegrove, Judicial Decision Making, Sentencing Policy and Numerical Guidance (1989); D. Moxon, Sentencing Practice in the Crown Court (1988).
88. For example, see: F. Kort, 'Content Analysis of Judicial Opinions and Rules of Law' in Judicial Decision-Making, ed. G. Schubert (1963); J. Hogarth, Sentencing as a Human Process (1971); Hood, op. cit., n. 16; Hutton and Tata, op. cit., n. 25; A. Lovegrove, Judicial Decision Making, Sentencing Policy and Numerical Guidance (1989); D. Moxon, Sentencing Practice in the Crown Court (1988).
89. For example, see: F. Kort, 'Content Analysis of Judicial Opinions and Rules of Law' in Judicial Decision-Making, ed. G. Schubert (1963); J. Hogarth, Sentencing as a Human Process (1971); Hood, op. cit., n. 16; Hutton and Tata, op. cit., n. 25; A. Lovegrove, Judicial Decision Making, Sentencing Policy and Numerical Guidance (1989); D. Moxon, Sentencing Practice in the Crown Court (1988).
90. For example, see: F. Kort, 'Content Analysis of Judicial Opinions and Rules of Law' in Judicial Decision-Making, ed. G. Schubert (1963); J. Hogarth, Sentencing as a Human Process (1971); Hood, op. cit., n. 16; Hutton and Tata, op. cit., n. 25; A. Lovegrove, Judicial Decision Making, Sentencing Policy and Numerical Guidance (1989); D. Moxon, Sentencing Practice in the Crown Court (1988).
91. For example, see: F. Kort, 'Content Analysis of Judicial Opinions and Rules of Law' in Judicial Decision-Making, ed. G. Schubert (1963); J. Hogarth, Sentencing as a Human Process (1971); Hood, op. cit., n. 16; Hutton and Tata, op. cit., n. 25; A. Lovegrove, Judicial Decision Making, Sentencing Policy and Numerical Guidance (1989); D. Moxon, Sentencing Practice in the Crown Court (1988).
92. For example, see: F. Kort, 'Content Analysis of Judicial Opinions and Rules of Law' in Judicial Decision-Making, ed. G. Schubert (1963); J. Hogarth, Sentencing as a Human Process (1971); Hood, op. cit., n. 16; Hutton and Tata, op. cit., n. 25; A. Lovegrove, Judicial Decision Making, Sentencing Policy and Numerical Guidance (1989); D. Moxon, Sentencing Practice in the Crown Court (1988).
93. There is a tradition of sentencing research which attempts to model the sentencing decision process as if the sentence decision were akin (or at ought to be akin) to deducing the sentence from algebraic modelling ('If X factor plus Y factor minus B factor then Z decision') models. This is often seen as the building block for the production of systems of aritificial intelligence.
94. Perhaps this is similar to what Alschuler has in mind when he writes in his conclusion to his article criticizing the United States sentencing guidelines of the 1970s and 1980s: 'By focusing on paradigmatic crimes rather than abstract crime categories, a Sentencing Commission could escape this apparent bind [of artificial aggregation]' (Alschuler, op. cit., n. 28, at p. 949). However, he does not elucidate this suggestion any further.
95. Shapland, op. cit., n. 18.
96. id., at p. 85.
97. M. Tonry, Sentencing Matters (1996), at 23.
98. See, for example, Alschuler, op. cit., n. 30.
99. See, for example, A. Kapardis, 'Sentencing by English magistrates as a human process' in Pennington, and Lloyd-Bostock, op. cit., n. 35; Lovegrove, op. cit., n. 68.
100. See, for example, A. Kapardis, 'Sentencing by English magistrates as a human process' in Pennington, and Lloyd-Bostock, op. cit., n. 35; Lovegrove, op. cit., n. 68.
101. Weigend, 1983, op. cit., n. 34, at p. 81.
102. id, at p. 81.
103. R. Fox, 'The Meaning of Proportionality in Sentencing' (1994) 19 Melbourne University Law Rev. 489-511, at 510.
104. id., at p. 510.
105. See, also, M. Miller, 'Guidelines Are Not Enough: The Need for Written Sentencing Opinions' (1989) 7 Behavioral Science and the Law (Sentencing).
106. In a similar vein, Feeley observes that, '[a]lthough prosecutors and defense attorneys tend to become inarticulate when presses to specify exactly how to they evaluate the "worth" of a case, they claim to know it intuitively.' Feeley, op. cit., n. 56, at p. 159.
107. H.F.M. Crombag, J.L. De Wijkerslooth, and E.H. van Tuyl van Serooskerken, 'On Solving Problems' (1975) 27 J. of Legal Education 168-202.
108. id., at p. 169.
109. N. Hutton, 'Sentencing, Rationality, and Computer Technology' (1995) 22 J. of Law and Society 549-70, argues that, (in Weberian terms), sentencing has remained a substantive irrational process, in contrast to the characteristic shift of modern western legal systems. However, while the sentencing process may be revealed as substantive irrational, I would suggest that it is a character which may be shared in common with, rather than in contrast to (as Hutton suggests), other areas of discretionary (legal) decision making
110. For wider discussion on this point, see M. McConville, A. Snaders, and R. Leng, The Case for the Prosecution (1991).
111. Ashworth et al., op cit., n. 5.
112. I have tried to suggest here that one possible reason for the purposive and pragmatic character of sentencing may originate from the experience of problem-solving as lawyers in a context of adversarial and civil criminal process. This does not tackle the character of such decision-making in inquisitorial or other non-adversarial schemes. It may be, on the other hand, that since lawyering is rather less adversarial in practice than is often supposed (see McConville et al., n. 85) that this formal context makes little difference in practice.
113. H. Albrecht, 'Sentencing Disparity - a comparative study' (1994) 2 European J. of Criminal Policy and Research, at 99. Emphasis added.
114. Fox, op. cit., n. 78.
115. id., at pp. 507-8.
116. C.K. Boyle and M.J. Allen, Sentencing in Northern Ireland (1990), at 240.
117. Weigend, op. cit., n. 34, at p. 65.
118. Feeley, op. cit., n. 56, at pp. 160-1.
119. See, for example, I. Brownlee, 'Taking the strait-jacket off: persistence and distribution of punishment in England and Wales' (1994) 14 Legal Studies 295-312.
120. M. Miller, 'Rehabilitating the federal guidelines' (1995) 78(4) Judicature: the J. of the American Judicature Society, at 183.
121. id.; Tonry, op. cit., n. 73; R.S. Frase, 'State sentencing guidelines: still going strong' in Tonry, id.
122. id.; Tonry, op. cit., n. 73; R.S. Frase, 'State sentencing guidelines: still going strong' in Tonry, id.
123. id.; Tonry, op. cit., n. 73; R.S. Frase, 'State sentencing guidelines: still going strong' in Tonry, id.
124. Tonry, id., at pp. 15-19.
125. id., at p. 19.
126. For a fuller exposition of 'desert', see, for example, A. von Hirsch, Doing Justice: The Choice of Punishments (1976); A. Von Hirsch, Past or Future Crimes (1985).
127. For a fuller exposition of 'desert', see, for example, A. von Hirsch, Doing Justice: The Choice of Punishments (1976); A. Von Hirsch, Past or Future Crimes (1985).
128. Tonry, op. cit., n. 73.
129. It might be argued that one of the virtues of desert theory is that it advocates the prohibition of attempts to make judgements about the character of an offender and attempts to prevent offenders from being punished again for past offending. However, as I attempt to show, it is not possible to make practical distinctions between the nature of the 'offence' and the nature of the 'offender'.
130. For discussion of a sociological understanding of the role of philosophical justifications of punishment see, for example, D. Garland, Punishment and Modern Society (1990).
131. Of course the cultural question concerning how societies attempt to justify the 'need' to punish and the empirical question of how the sentencing decision is processed are interrelated not least at the point where judges attempt to justify their decisions publicly. However, as I argue later, this should not lead us to assume that the reasons given in court are the obvious category for explanation of 'why' the judge passed the sentence s/he did.
132. One intriguing question is 'how does a sentencing process based on typification and normalization cope with slightly different cases and how do new "typical whole case stories" appear'? It may be that one way of trying to understand this is through the interaction between typical whole stories. In other words, a variation of information on a typical whole story theme brings with it meanings from another typical whole story with which it is associated. Their interaction may bring about a new (or at least 'different') kind of typical whole case story.
133. Emerson, op. cit., n. 53.
134. Hutton and Tata, op. cit., n. 25.
135. One of the most sophisticated examples of work in this 'tradition' is that by Hogarth, op. cit., n. 68.
136. See for example, M.P. Baumgartner, 'The Myth of Discretion' in The Uses of Discretion, ed. K. Hawkins (1992) ; Waegel, op. cit., n. 39, argues at p. 264 that conventional research strategies focusing on decision-making variations between individuals and between functionally similar organizations have severe limitations. A more fruitful approach for studying processing outcomes takes as its focus the shared categorization schemes used by members in organizing their day-to-day activities.
137. See for example, M.P. Baumgartner, 'The Myth of Discretion' in The Uses of Discretion, ed. K. Hawkins (1992) ; Waegel, op. cit., n. 39, argues at p. 264 that conventional research strategies focusing on decision-making variations between individuals and between functionally similar organizations have severe limitations. A more fruitful approach for studying processing outcomes takes as its focus the shared categorization schemes used by members in organizing their day-to-day activities.
138. On this point see, for example, Hutton et al., op. cit., n. 23; M . Cavadino and P. Wiles, 'Seriousness of Offences: The Perception of Practitioners'(1994) Criminal Law Rev. 489-98; C. Tata and N. Hutton, 'What "Rules" in Sentencing? The Custodial Sentencing Patterns of Sentencers Working in a Small Jurisdiction in the Absence of Rules' (1997, forthcoming) Brit. J. of Criminology. While none of these studies go as far as to develop 'typical whole case stories' they do avoid some of the difficulties presented by a more legal-analytical approach. These studies found a surprising degree of broad agreement in the assessment of seriousness once the practical process of research, using hypothetical materials, gets underway. It may be that attempting to develop a scheme with judges in the absence of case material produces generalized and unspecific remarks about the need to treat each case on its merits (Hutton et al., id.).
139. On this point see, for example, Hutton et al., op. cit., n. 23; M . Cavadino and P. Wiles, 'Seriousness of Offences: The Perception of Practitioners'(1994) Criminal Law Rev. 489-98; C. Tata and N. Hutton, 'What "Rules" in Sentencing? The Custodial Sentencing Patterns of Sentencers Working in a Small Jurisdiction in the Absence of Rules' (1997, forthcoming) Brit. J. of Criminology. While none of these studies go as far as to develop 'typical whole case stories' they do avoid some of the difficulties presented by a more legal-analytical approach. These studies found a surprising degree of broad agreement in the assessment of seriousness once the practical process of research, using hypothetical materials, gets underway. It may be that attempting to develop a scheme with judges in the absence of case material produces generalized and unspecific remarks about the need to treat each case on its merits (Hutton et al., id.).
140. On this point see, for example, Hutton et al., op. cit., n. 23; M . Cavadino and P. Wiles, 'Seriousness of Offences: The Perception of Practitioners'(1994) Criminal Law Rev. 489-98; C. Tata and N. Hutton, 'What "Rules" in Sentencing? The Custodial Sentencing Patterns of Sentencers Working in a Small Jurisdiction in the Absence of Rules' (1997, forthcoming) Brit. J. of Criminology. While none of these studies go as far as to develop 'typical whole case stories' they do avoid some of the difficulties presented by a more legal-analytical approach. These studies found a surprising degree of broad agreement in the assessment of seriousness once the practical process of research, using hypothetical materials, gets underway. It may be that attempting to develop a scheme with judges in the absence of case material produces generalized and unspecific remarks about the need to treat each case on its merits (Hutton et al., id.).
141. Shapland, op. cit., n. 35; Lacey, op. cit., n. 2.
142. Shapland, op. cit., n. 35; Lacey, op. cit., n. 2.
143. D.M. Gottfredson, 'Diagnosis, Classification and Prediction' in Gottfredson, op. cit., n. 7.
144. See, for example, the experience documented by Ashworth et al., op. cit., n. 5.
145. This may include what North American writers have labelled 'unwarranted disparity'. At least in the United States of America, the most discussed kind of disparity relates to racial disparity. However, how far this is directly attributable to judicial sentencing is debatable and may, in part, depend on the degree of discretion which judges have in practice. For example, Free concludes that racial disparities in sentencing are largely attributable to rates of arrest and the pre-judicial sentencing stages rather than at the judicial sentencing stage (M. Free, African Americans and the Criminal Justice System (1996)).
146. Fitzmaurice and Pease, op. cit., n. 16, at p. 45.
147. Wilkins, op. cit., n. 7, at p. 81.