Evaluating the Contribution of Sentencing to Social Justice: Some Conceptual Problems

in International Criminal Law Review
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The sentencing practices of the courts are significant in promoting social welfare and the cohesion of communities. More particularly, the social morality which underpins punishment and its expression through sentencing is a crucial factor in balancing the interests of citizen and state. Consequently, penal policymakers face an increasingly difficult task ensuring that the rationales for punishment and sentencing decisions engage with the values, expectations and sensibilities of our increasingly diverse and morally pluralistic societies. Establishing meaningful connections between penal ideology and criminal justice outcomes is a key factor in integrating restorative justice theory and practice and in maximising the potential for trial justice to contribute constructively to transitional justice objectives. The ability to provide convincing evaluations of current and future practice is a significant precursor to this endeavour. This article analyses examples from domestic and international contexts to highlight issues surrounding sentence evaluation, drawing particular attention to the conceptual problems posed by the normative nature of sentencing. It then considers the difficulties of establishing clear parameters and methods for evaluation, and how to reconcile conflicting normative demands within a developing framework of penal accountability.

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References

1)

Roger B. M. Cotterrell, Law, Culture and Society (Aldershot: Ashgate, 2006).

3)

Ralph Henham, Sentencing and the Legitimacy of Trial Justice (Abingdon: Routledge, 2011).

5)

Julian V. Roberts and Mike Hough, Understanding Public Attitudes to Criminal Justice (Maidenhead: Open University Press, 2005).

6)

David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001).

8)

Ian Loader and Richard Sparks, Public Criminology (Abingdon: Routledge, 2011).

10)

 See, for example, Michael Tonry, Punishing Race: A Continuing American Dilemma (New York: Oxford University Press, 2011).

11)

Tom R. Tyler, Why People Obey the Law (Princeton: Princeton University Press, 2006).

16)

Cesare Beccaria, Of Crimes and Punishments and Other Writings (Cambridge Texts in the History of Political Thought, R Bellamy (ed.) (Cambridge: Cambridge University Press, 1995).

22)

Raphael Lemkin, Axis Rule in Occupied Europe (Washington, DC: Carnegie Endowment for International Peace, 1944).

29)

Ministry of Justice, Breaking the Cycle: Effective Punishment and Sentencing of Offenders (London: TSO, 2010).

30)

Henham, supra note 3.

31)

Herbert L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968) Hart draws a distinction between the general justifying aim of punishment and the individual decision as to who should be punished, and by how much. See further; Andrew Ashworth Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 2010, 5th ed,) ch 3.

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