Penal ideology, sentencing and the legitimacy of trial justice

Abstract

The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the 'rule of law'. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of 'justice' in sociological accounts of the 'reality' of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial's 'relevant audience'. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived 'legitimacy' of international trial justice.

Prison sentences: last resort or the default sanction?

“…In reality, the penal law in different contexts incorporate different and contrasting sentencing purposes. Additionally, a recursive relationship seems to exist between sentencing practice and the penal ideology of these sentencing purposes upon which the perceived legitimacy of punishment depends (Henham, 2012). Thus, understanding these purposes is an important pathway for understanding the sentencing process (de Keijser et al, 2002;Spohn, 2002) and the sanctions that judges choose to impose.…”

“…In addition to raising the issue about the connections (or absence of them) between academic evidence, prescribed laws and sentencing practices (Mackenzie, 2005), this point reinforces the idea that imposing a penal sanction is marked with inconsistencies between intentions and implementation (Pollock, 2010). Besides, previous studies raise the question of the extent to which legal norms and processes facilitate the transformation of sentencing purposes (or penal ideologies as the author states) into guides for action through the routine practice of sentencing (Henham, 2012).…”

“…This gap between the lack of evidence for the benefits of prison terms and the continued high rates of imprisonment, as well as an absence of significant decreases in prison sentences despite changes in the law, may suggest, as Tombs and Jagger (2006) assert, that judges decide sentences not only based on the impositions of the law but also in line with their own beliefs about the penalties' differential potentials and disadvantages. Additionally, since moral and social values and the way these values impact punishment are in a constant change, descriptive accounts or discussions of the possible paradoxes in criminal justice are insufficient to understanding the forces that actually drive these changes (Henham, 2012).…”

Judicial Responses to Alcohol-Fuelled Public Violence: The Loveridge Effect

“…The charge of 'inconsistency' stuck, however, and the foundation for NSWCCA intervention was established. It might be argued that consistency is only desirable in political discourse if it connotes consistently high sentences that are in sync with prevailing 'penal ideologies' (Henham 2012;Loader and Sparks 2016).…”