Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process

Abstract

This article contends that it is time to take a critical look at a series of binary categories which have dominated the scholarly and reform epistemologies of the sentencing decision process. These binaries are: rules versus discretion; reason versus emotion; offence versus offender; normative principles versus incoherence; aggravating versus mitigating factors; and aggregate/tariff consistency versus individualized sentencing. These binaries underpin both the 'legal-rational' tradition (by which I mean a view of discretion as inherently suspect, a preference for the use of philosophy of punishment justifications and an explanation of the decision process through factors or variables), and also the more recent rise of the 'new penology'. Both approaches tend to rely on 'top-down' assumptions of change, which pay limited attention to the agency of penal workers. The article seeks to develop a conception of sentencing craftwork as a social and interpretive process. 1 In so doing, it applies and develops a number of Kritzer's observations (in this issue) about craftwork to sentencing. These craftwork observations are: problem solving (applied to the rules-discretion and reason-emotion dichotomies); skills and techniques (normative penal principles and the use of cognitive analytical assumptions); consistency (tariff versus individualized sentencing); clientele (applied to account giving and the reality of decision making versus expression). By conceiving of sentencing as craftwork, the binary epistemologies of the sentencing decision process, which have dominated (and limited) the scholarly and policy sentencing imaginations, are revealed as dynamic, contingent, and synergistic. However, this is not to say that such binaries are no more than empty rhetoric concealing the reality of the decision process. Rather, these binaries serve as crucial legitimating reference points in the vocabulary of sentencing account giving. SOCIAL & LEGAL STUDIES

Locating the Judge within Sentencing Research

“…These research approaches remove the sentencing judge from everyday courtroom interrelations and cannot fully account for the collective and social dimensions of sentencing (Tata 2007).…”

“…The conception of sentencing as an individual judicial exercise or intellectual struggle has, in the intervening years, increasingly featured in the literature (Hutton 2006;Mackenzie 2005;Tata 2007;Tombs and Jagger 2006 A key thread is the acknowledgement that judicial emotion plays an important role in the practice of sentencing, especially as the interactive moment in the courtroom between the judge and others comes to bear upon the sentence itself. Several socio-legal scholars have investigated such interactive moments, likening the courtroom to a theatre (Ball 1975;Friedman 2001;Grunwald 2012), and legal proceedings to 'a spectacle of legal performance art' (Abrams 1999: 908;see also Peters 2008;Rossmanith 2015;Tait 2002).…”

“…Mack and Roach Anleu's (2007: 341) study of Australian magistrates shows that emotions can be a mechanism for expediting court processing and 'getting through the list'. In Scottish courts, such practices are used to create delays or postponements and to manipulate workloads (Tata 2007). Other studies report that judges often manage the emotional tensions in the courtroom, especially those generated by others (for example, victims and families of victims).…”

“…Next, this article considers key examples of socio-legal scholarship which explicitly identify sentencing as an interactive social process (for example , Booth 2016;Tata 2007;Travers 2007). This research treats the judge as an embodied human participant, rather than as an abstraction or construct, and recognises that the judge operates within a distinct context comprising experiential, emotional and social dimensions.…”

Visible and Invisible Sentencing

“…It is tempting to call this invisible work, holistic or craftwork (Tata 2007). The difficulty with this is that it tends to exaggerate the influence of individual cognitive work on sentencing outcomes.…”