Week 8

This week's lecture looked at sentencing, or at least scratched the surface of this huge topic.

There are three very different ways of looking at sentencing policy; in fact, you can't really make sense of sentencing unless you look at all three of them, which is why I tried to get them all into the lecture. Philosophically, you can ask what sentencing is for: what are the courts trying to achieve by passing a particular sentence, and what should they be trying to achieve? How you answer this question depends on what kind of purpose you think sentencing should serve: is the main point of the sentence the punitive effect it has on the offender, or the beneficial effect it has on society? Retributive theories of sentencing argue that sentencing is all about punishment, but that the punishment should be scaled precisely to the offence; in practice, retributivists tend to be in favour of making sentences less harsh. Utilitarian theories argue that sentencing is carried out for the good of society, which may involve locking up some offenders for life or imposing excessively harsh punishments so as to deter potential offenders. Utilitarian theories are invoked to justify everything from restorative justice to indefinite prison sentences.

Practically, you can ask what sentences work. Utilitarian theorists, in particular, justify particular types of sentence on the grounds that they will cut crime. Research can be and has been carried out into whether this approach to sentencing actually works, and the results are very inconclusive.

Politically, finally, you can analyse sentencing policy in terms of how it has changed over time - and why. The history of sentencing over the last two decades is a rather sad story of penal populism from government and pressure for "judicial independence" from below; retributivist sentencing has fallen out of fashion, but the research which could validate a utilitarian approach to sentencing has largely been ignored. Instead of sentencing being guided by a consistent theory and underpinned by research, in practice it is largely guided by political pressures and underpinned by gut feeling. Some interesting developments have taken place in areas such as restorative justice, and it remains to be seen how the Coalition's criminal justice policy will evolve in this area: which will be most powerful, the punitive voices on the Tory benches, the liberal inclinations of the current Minister of Justice or the ever-shrinking budget?