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The Role of Previous Convictions at sentencing Cardiff, November 27

The Role of Previous Convictions at sentencing Cardiff, November 27. Julian Roberts, Faculty of Law University of Oxford. First, a little Shakespeare…. “Men’s evil manners live in brass; their virtues we write in water”

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The Role of Previous Convictions at sentencing Cardiff, November 27

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  1. The Role of Previous Convictionsat sentencingCardiff, November 27 Julian Roberts, Faculty of Law University of Oxford

  2. First, a little Shakespeare… • “Men’s evil manners live in brass; their virtues we write in water” • “They need to look at what the person’s achieved as well as the bad things he’s done – good things are never recognized in court.” (Interview with recidivist offender)

  3. What I want to do • Describe the ways that competing sentencing theories react to previous convictions; • Critique the Progressive Loss of Mitigation Model • Review the changing role of statutory provisions regarding previous convictions in England and Wales; • Consider the reactions of the criminal justice professionals, the public and offenders • Propose a better way of considering previous convictions at sentencing

  4. Problems with pre cons • Ever-changing statutory framework • Insufficient guidance from CACD or SGC/SAP • Offender objections to practice • Gap between theory and practice

  5. Sentencing Statutes around the world: 2 Sentencing Universals? • Sentence severity is proportionate to the seriousness of offence and offender’s level of culpability; • Sentence severity is proportionate to the seriousness of the offender’s criminal record

  6. Utilitarian Sentencing • Repeat offenders represent a higher risk to re-offend, and are less likely to be rehabilitated • Known as cumulative sentencing • Problems? - Categorical not individual ascriptions of risk; - an over-prediction of recidivism; - mechanical approach to pre cons - little evidence that CS works

  7. Retributive Theories and Previous Convictions Consensus on question of pre cons Two components of a retributive sanction: (a) crime seriousness and (b) offender culpability; all legitimate sentencing factors must be related to (a) or (b) Sentencing process must not punish on character All retributive theorists now reject the position that repeat offenders are more culpable – more later;

  8. Two Competing Retributive Perspectives • 1. “flat rate” model : • no room to consider pre cons (all offenders sentenced the same) and 2. Progressive Loss of Mitigation: Discount for first offenders (and 2nd, 3rd, 4th?) For the vast majority of offenders the two perspectives respond the same: pre cons carry no weight in aggravation. • How well do these models reflect professional and community views?

  9. Problems with Progressive Loss of Mitigation (First offender discount) • Theoretically unrelated to retributivist principles (first offenders not less culpable); • Is it not an example of punishing character? • What is the dimension along which offenders are arrayed according to their previous convictions? • Implausible for first offenders convicted of serious crimes; • Never seen in practice (sentencing statistics)

  10. Percentage of Offenders Imprisoned by Number of Prior Convictions, New South Wales 30 25 20 15 Percentage Imprisoned 10 5 0 0 1 2 3 4 5 6 7 8+ Number of Prior Convictions

  11. Evolving Role of Pre Consin England and Wales: from “must not”, to “may”, to “must” 3 key statutes: • 1991 Criminal Justice Act • Amendments in 1993 CJA • Criminal Justice Act 2003

  12. Criminal Justice Act 1991 • s.29(1) An offence shall not be regarded as more serious… by reason of any previous convictions of the offender or any failure of his to respond to previous sentences.

  13. Criminal Justice Act 1993 s.29(1) as amended: In considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences.

  14. Criminal Justice Act 2003 In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular to – • the nature of the offence to which the conviction relates and its relevance to the current offence, and • the time that has elapsed since the conviction.

  15. Attitudes of Criminal Justice Professionals Toward the Recidivist Sentencing Premium, Britain

  16. Public reaction to pre cons • People ascribe higher ratings of blameworthiness to recidivists – independent of risk of re-offending; • Regard a wide range of circumstances to be relevant to blameworthiness; e.g., remorse; apologies; • Assign higher punishments to reflect pre cons, but within proportional limits • MORI survey 2007

  17. Offender Views • Acceptance that pre cons are important factor at sentencing; • Strong consensus that the RSP is a legitimate sentencing practice; • Justifications: the offender has not “learned his lesson”; • But…manner of application criticized: too mechanical; no credit for efforts to desist

  18. Determinants of a proportional sanction: crime seriousness and culpability • Crime seriousness unaffected by pre cons – what about culpability? • Sentencing statutes make reference to elevated culpability of offender • Blameworthiness: measured by distance of departure from acceptable conduct

  19. Explaining the divergence between theory and practice/opinion • Retributivist analysis tightly focused on the act: narrow “band width” of blameworthiness; • Public/ CJS professionals have a broader model; • Need to consider the context (i.e., actions before and after crime): • Premeditation • Remorse/ apologies: public and sentencers’ reaction to the remorseful offender (including rape and capital cases)

  20. Considering the Offender’s perspective: (back to Shakespeare) • Q: Are we back to punishing “character”? • A: No, only certain conduct should be credited – not a question of moral accounting (good war record etc.); • What kind of conduct? Efforts to desist (even if ultimately unsuccessful) should wash out the repeat offending premium; • Need to consider the role of the state: was the offender offered help to desist? Did the state impede desistance or facilitate re-offending?

  21. Summary • Flat line and PLM models at odds with community sentiment, professional opinion and judicial practice; • Relevant pre cons must increase blameworthiness and hence severity of sentence but………. • A limit should be placed on the recidivist premium – to protect proportionality; • Offenders should be able to rebut the presumption of enhanced culpability;

  22. Finally… • Many thanks for your time and attention!

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