Sentencing Policy, Social Values and Discretionary Justice

Abstract

Despite the recent consolidation of sentencing law and procedure, the fundamental values which underpin the policy and practice of sentencing in England and Wales have remained largely unchanged since the deserts-based model introduced by the Criminal Justice Act of 1991. It is argued that this paradigm is no longer appropriate and presents a significant impediment to reducing imprisonment and mainstreaming restorative forms of intervention within the criminal process. An alternative value-based approach is proposed to counter this trend, one that provides greater structural flexibility and empowers sentencers to engage more effectively with the social impact of penal intervention.

Thoughts, analysis perspectives and critics of function of punishment in international criminal law

“…It is now difficult to make predictions about the dissuasive effect of the threat of a criminal penalty and its application in future situations. The punctum dolens in the practicability of a prophylaxis of fundamental human rights at an international level will be the peoples to seek for themselves and freely choose alternative forms to criminal justice, the settlement and overcoming of their own past (Henham, 2007a;Henham, 2007b;D'Ascoli, 2011;Henham, 2022).…”

Re-thinking notions of evidence and proof for sentencing: Towards a more communitarian model

“…Accordingly, sentencing policy should be developed from a firm commitment to ground rationality in social context. Sentencing can provide an operational context for relational forms of justice, implying the need for substantial sentencing discretion (du Bois-Pedain, 2017b;Henham, 2022). However, rationality alone, in terms of prioritising certain moral values and their expression as general justifications, is insufficient.…”

“…63. See further Henham, 2022. values for state punishment. Fundamentally, such an approach recognises that the moral authority of penal values is always socially contingent, relative to time and space.…”