Comparative Courts and Sentencing Research Paper

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Comparing sentencing arrangements is a vital part when developing and studying criminal sentencing. Few reform programs move ahead and little research is done without consulting experiences within other jurisdictions. To some degree, the United States represents an exception to this rule. This is because comparative research between federal states has become more common than earlier. Comparisons with other countries, be they European, South American, Asian, or African, remain less frequent. This is despite the efforts of a number of leading scholars who refer to experiences and sentencing models in other countries.

This research paper gives an account of the subject matter of comparing criminal sentencing, the purposes of comparing, and the typical approaches of comparing criminal sentencing. In so doing, the paper discusses the issues at stake when comparing and the limitations that flow from the different approaches to comparing criminal sentencing. The paper’s last section devotes special attention to the relevance of globalization to the act of comparing across borders.

The Subject Matter Of Comparing Sentencing

For the present purposes, criminal sentencing covers actions through which it is determined what penal sanctions an offender must be subjected to following a criminal offence. Although this description, like any other, is ethnocentric, it does cover the process of police, prosecutorial, and court decision-making, the sanctioning that follows, just as it includes the organizational structures that sustains and develops the decision-making processes.

Typically, three different subject matters come into play when comparing criminal sentencing. The most frequent is the outcome of sentencing: the sanction type (prison, alternative sanctions, fines, etc.) and the amount of sanction (length of prison term, size of fine, hours of community service). For example, comparing the rate of imprisonment per capita or the number of prison sentences in the United States and in England and Wales. Another subject matter of comparison targets the legal structures that govern the sentencing decision-making, for example, comparing the many different constructions of numerical sentencing guidelines that have been built in different jurisdictions in the United States since 1980 or comparing the Swedish statutory sentencing law with any of these numerical guideline systems. A third subject matter of comparison takes seriously the social practices of the everyday handling of cases and the organizational framework of sentencing, in court as well as in prosecution. Inspired by the traditions of socio-legal scholarship, these studies rely neither on the law nor aggregate sentencing outcomes but compare the organization, operations, and views of those who handle criminal cases, for example, comparing judges’ views on sentencing in Finland and in England and Wales or comparing court systems and their political roles in industrialized nations. These different subject matters should not be mistaken for one another. They bring different consequences to the comparative analysis and most importantly provoke us to ask how things would look with a different subject matter of comparison.

Purposes Of Comparing Criminal Sentencing

As in comparative criminology in general (Nelken 2011), we can discern three typical purposes of comparing criminal sentencing decision-making: (1) the policy purpose, (2) the social scientific positivistic purpose, and (3) the contextual or interpretive purpose. The three purposes often overlap, yet are distinct.

First, there is a long tradition for using comparative methodology in policy research. In most sentencing reforms policy-makers look to other jurisdictions’ experiences as a tool to find the best solution to their own challenges of sentencing reform. This practice of transferring sentencing experiences from one jurisdiction to another raises a number of comparative concerns. These are addressed later in this research paper. Second, the social scientific positivistic purpose is about comparing sentencing decision-making and its organization to test theories about relevant causes and effects of criminal sentencing. For example, testing the explanatory value of income inequality to the level of prison rates in different countries or explaining the change from discretionary to numerical guideline informed sentencing in many jurisdictions in the United States. The third and interpretivist purpose of comparing is to unravel the contextual embeddedness of criminal sentencing and studying how sentencing decision-making, its regulation, and its procedures and sanctions are differently constructed. One example would be to show that sentencing discretion and its boundaries are intrinsically linked to local cultures.

Approaches To Comparing Criminal Sentencing

The approach to comparing is intertwined with both the purpose and the subject matter of comparing. Indeed, as the headings below confirm, there is a close connection between the different purposes of comparing sentencing and the different approaches to it. Nevertheless, it is both important and helpful to make the distinction when presenting three widespread and different approaches:

1. The legal categorical approach

2. The predictive and explanatory social scientific approach

3. The interpretivist approach

Legal Categorical Approach

A legal categorical approach is deeply connected to the legal structure as subject matter and has legal scholarship and dogmatics as its basis. The approach is used to categorize sentencing laws and systems, typically based on functional characteristics and their legal historical heritage. This approach helps to elucidate important structural properties of sentencing laws, but it also functions to cover the many relevant social, cultural, and political differences between jurisdictions. The best-known categorization in wider comparative studies is that by comparative legal scholars Ko¨ tz and Zweigert (1998) in their introduction to comparative law. They systematically organize the different legal systems in legal families: the Anglo-American, the romanistic, the germanistic legal family, the Nordic legal family, then add the law in the Far East, and finally religious legal systems. In comparative sentencing research, the categorization is most often seen in the simple distinctions between Anglo-American common law and continental models of civil law. The Nordic countries are sometimes placed in the continental and civil law category and sometimes recognized as also carrying elements recognizable in the Anglo tradition of law.

Though it is disputed whether distinctions such as civil law and common law and adversarial and inquisitorial law can serve as units of analysis, it is indisputable that these distinctions are actually used and that they at least historically carry some legitimacy. Civil law and inquisitorial models arose from Roman law and were subsequently shaped by European continental legal developments. Common law and the adversarial model have their origin in English law which subsequently spread to the United States of America and other places where the English sought influence. Common law is characterized by the central role of the trial, the judicial decisions, and the recorded precedents, all of which are important vehicles for the development of law. Contrary in civil law models, through codification, every offence is ideally preconceived in written legal statutes and the judge has the role of reading, understanding, and applying the statute content correctly – and most importantly has the final word. In a sense, the key axis in this model is that between the legal subject and the written rule, whereas in the common law model, it is rather that between the legal subject and the trial.

How does this help to compare criminal sentencing? First of all, a distinction is often made between the civil law tradition of structuring sentencing through legal statutes and the common law tradition of governing sentencing through trial experiences. This is a frequent way of comparing continental European and Anglo-American sentencing law. Indeed, France and Germany do have complete criminal codes defining every offence and stipulating the sentencing options for each. Many Anglo-Saxon jurisdictions still have no general criminal code, and still place the courts and the trial in a comparatively more significant role in sentencing. The basic structures of sentencing law are different. One could point to the adversarial nature of plea bargaining in England and Wales and in the United States and contrast it to the continental styles of legality in sentencing procedure. Both in Germany and in France, it is the judge who has the final decision, even when procedures involve consensual elements. Problems with these distinctions between common and civil law arise when they are used to describe entire countries and sentencing systems. Despite the historical heritages, sentencing laws and practices have evolved remarkably over time, and today it is problematic at best to describe entire systems as common or civil law and as inquisitorial or adversarial. As Pizzi (2008) illustrates, it is difficult to categorize the entire sentencing systems of the United States as common law systems as such. More than half of its jurisdictions have, since 1980, implemented legal sentencing rules that place the court under substantial legal control. The techniques employed include minimum sentencing laws and administrative sentencing guideline systems combined with various administrative governance institutions and enforced monitoring mechanisms. In England and Wales legislative structuring of sentencing has increased since the middle of the twentieth century. Today the sentencing approach towards many criminal offences is governed by binding sentencing guidelines, promulgated by a national sentencing council, and enforced by the upper courts. It is more descriptive then in these jurisdictions to emphasize the joint structuring of sentencing by the upper courts, the more recent administrative sentencing guidelines, and the legislature.

In the same way it makes little sense to categorize the Italian system as a civil law system as the country has implemented plea bargaining ina wide area of criminal cases. Most other continental countries have implemented some version or other of consensual procedures, eating away at the traditional principle of legality and central role of the judge assuring the law to rule sentencing (Thaman 2010). This does not mean that these basic distinctions between civil and common law and between inquisitorial and adversarial systems serve no analytical purpose. First of all, the distinctions are a welcome tool to reduce the otherwise dominant use of jurisdictional borders as a key distinction (Nelken 2007). Second, if we handle these concepts as representing legal traditions in the way that Glenn (2010) does in his comparative legal theory, we could use the distinctions as carriers of norms and legal forms, travelling from one country to another, constantly evolving with the local and different pressures of law, politics, and culture in each jurisdiction, and only expressing themselves in much more concrete ways as rules, practices, and arrangements that reflect more than a singular legal tradition (Field 2009). As such these distinctions do serve the purpose of sorting out general lines of traditional sentencing and procedure to further investigate their concrete implementations.

There are attempts at breaking free from the dominant distinctions of civil law and common law. For example, Frase (2008) explores the use of the established comparative criminal procedure model developed by Damaska (1991). Justice systems are categorized on two diagonal dimensions. In one dimension, systems are tending to be hierarchical or to be coordinate systems of justice. In the other dimension, systems are tending to be policy implementing or conflict solving. This does allow more flexibility with respect to legal categorical comparisons. However, it does not change the problem that legal categorizations of entire systems using such simple categories or dimensions lack significant descriptive and analytical power.

More fundamentally, comparative legal theory has evolved to challenge the legal categorical approach. Recognizing the increasing traffic between borders of legal ideas, constructions, and institutions, advanced comparative legal theory today seeks to accommodate for the mixed legal systems that have resulted. It is accordingly put forward that most legal systems are mixes of different legal constructions and solutions. They therefore represent different traditions and countries from which ideas and models for legal constructions and institutions have been borrowed, imposed, codeveloped, or other. The above described widening use of plea bargaining or similar consensual procedures are good examples, as are sentencing commissions and councils, sentencing guidelines systems, sentencing information systems, problem-solving courts, alternative dispute resolution mechanisms, and prosecutorial diversion programs. The headlines that are used to make sense of these developments include “legal transplants” (Watson 1993), “legal irritants” (Teubner 1998), “law as transposition” (O¨ ruc€u 2002), and “legal borrowing” (Nolan 2009). Partly the concern here is to accommodate for the significant role that borrowing plays in comparative studies. Partly the concern is if such transport of legal institutions from one jurisdiction to another makes sense at all within the framework of comparative legal theory. The fundamental question is if a legal rule is bound to its social and cultural meanings, how can it move elsewhere without lousing this meaning?

Yet, despite these significant developments, the distinctions between civil and common law and between adversarial and inquisitorial procedures continue to play a substantive role in scholarly writings on comparative criminal sentencing law.

Predictive And Explanatory Social Scientific Approach

As positivistic social science in general, this approach compares variation in sentencing arrangements between jurisdictions, such as countries, states, or regions, in order to identify the causes and consequences of sentencing arrangements. Different from the legal classificatory approach, all social phenomena can be used in the study of sentencing whether legal or not. The approach is used to compare various aspects of sentencing. For example, comparing the degrees of voluntariness in sentencing guidelines to see the effects on levels of punishment, comparing fine levels or the frequency and length of prison sentences, comparing different paths that reduce prison sentences, comparing the use of alternatives to imprisonment and their sentencing arrangements, comparing the effects of sentencing reforms on court practices. comparing to explain increases in prosecutorial authority in criminal sentencing, comparing the consequences of political culture on criminal sentencing and court practice, identifying the causes and effects of different sentencing policies and the structural reforms of sentencing, (Tonry and Hatlestad 1997; Tonry 2007, 2009; Tonry and Frase 2001), and comparing in order to test arguments about correlations between penal levels and sentencing ideologies. Though these many approaches differ from one another, they can all be broken down to accounts of variation between jurisdictions in the correlation between dependent and independent variables.

Four issues are particularly sensitive when using this approach. The first concerns the sample and population. Predictive and explanatory models make use of sample countries to generalize, but the extensive variation between countries makes it difficult to generalize both regionally and globally about sentencing. For example, Cavadino and Dignan (2007) argue that penal levels, measured by overall imprisonment rates, vary with the type of political economy. The four proposed typologies are the neoliberal (USA, UK, Australia, New Zealand, South Africa), the conservative corporatist (Germany, France, Italy, the Netherlands), the social democratic (Sweden, Finland), and the oriental corporatism (Japan). Their aim is to find similarities between groups of countries on significant variables that simultaneously distinguish those countries from others belonging to different typologies. Using sample countries from North America to east Asia, the authors can make the claim of sampling a global scale of modern industrialized countries. However, many countries pointing in different directions are not included. For example, what would happen if China is in the comparison? China has a very high rate of imprisonment, but does not adhere to a neoliberal societal model (Nelken 2011). Within the African scale of modern industrialized countries, it is only South Africa that is included in the comparison. However, Kenya is equally a comparatively large market economy in Africa, yet with much lower prison rates than South Africa.

Similarly, Lappi-Sepp€al€a (2011) compares correlations between prison rates and a number of social and political structures in 30 different countries. He argues that among others, moderate penal policies are related to consensual and corporatist political cultures with high levels of social trust and political legitimacy. The sample consists of 30 countries from continental Europe (hereunder Russia), North America, and it includes Australia and New Zealand. Yet, it does not include any Asian (apart from Russia) or African countries. For the present purposes we are reminded that explanatory models are limited to the countries chosen for comparison and that it is problematic to generalize both regionally and globally about correlates to sentencing and sanctioning.

The second issue concerns the dependent variable. Whether it is prison rates, the use of alternative sanctions, fines, the legal framework of sentencing, or sentencing uniformity, it is central to a positivistic approach that the dependent variable is comparable across jurisdictions. When comparing prison rates, what counts as prison? Is weekend prison and open prison with daily outside working or educational activities outside included? Is electronic monitoring and home imprisonment included? Does it make sense to compare sentences served under the conditions in local prison facilities in the state of Virginia with those of Germany? Furthermore, increasingly important is the measuring of alternative sanctions. Its features, characteristics, and use have expanded rapidly over the last decades. But while many of the headlines are the same across borders, the content of alternative sanctions rarely is. Some are keenly aware of this challenge (Farrington et al. 2004). Taken wider, the issue here is that looking at criminal sentences across nations assumes sufficient non-variation both in sanctioning mechanisms and in competing social sanctioning mechanisms. For example, in the context of Japan in which disciplinary culture varies markedly from that of England and Wales and that of the United States, there is a range of other measures that are used for social control. South Africa, even though it does represent a punitive system, also represents local governance technologies that are applied to situations in which other countries, like England and Wales, France, or Norway, would use formal sanctions of imprisonment and community service. A social scientific predictive or explanatory approach must consider these factors.

The third issue that must be considered relates to the independent variables. When comparing two or more jurisdictions, every-one of the independent variables needs to be comparable across jurisdictions and relevant variations between them must be reflected. This includes both criminal offence variables, procedural variables, and variables related to the criminal offenders, and it includes the social, political, and cultural structures of the sentencing jurisdiction. Both legally and empirically, violent offences may look different, the offenders may belong to different groups of society and the form of trial may vary from place to place. In some countries less serious offences are not categorized as crimes but as administrative wrongs and are handled accordingly. Some countries rely on police and prosecution to finish many cases before they reach court. In some jurisdictions, like England and Wales, timely confessions are awarded measurable reductions in criminal sentencing, while in other countries confessions only affect the form of evidence and trial. Likewise, in some jurisdictions, there is little space for the inclusion of a personal investigation report, while in others it takes center stage. A further and important concern with independent variables is the covariance between them. For example, Lappi-Sepp€al€a (2011) relates low levels of inequality, democracy, high social trust, and welfare society with moderate penal levels. However true this may be, it is associated with considerable methodological concern that there is a high covariance between these particular variables.

A related concern is to what extent we can meaningfully distinguish sentencing from any of the relevant independent variables. One important example is the ties between sentencing and procedural arrangements. Many criminal justice systems allow for a range of alternatives to trial: case diversions, conditioned charge withdrawals, and plea agreements, to mention but a few examples. Many such procedural dispositions are closely related to the expected sentence. This makes sentencing a procedural variable also and thus makes it difficult to distinguish between sentencing and procedure. Another example is the connection between criminal sentencing, strategies of other justice institutions, and overall penal policies. The typical assumption is that penal policy – to some degree – determines the direction of sentencing practices and that sentencing is distinct from activities of other justice institutions. However, in most Western countries the individual branches of penal administration have increased their interdependencies in a number of different ways such as shared strategies, policies, goals, measures, daily interacting operations, and overall common infrastructures. The consequence is an increasingly larger difficulty of distinguishing the effects of one agency from the other. This naturally makes measuring such variables across borders difficult.

The fourth issue with the positivistic approach is the interpretivist concern that comparing variable elements of sentencing regimes is problematic because every element is subject to the individual meaning structures of the compared systems, societies, and cultures. For example that judicial discretion is deeply imbedded in the cultural constructs of the society in which it is practiced, as are the meaning of “crime” and of “community” sanctions and of “youth” problems. See further below about the interpretivist approach.

There are no easy answers to any of these concerns and questions. Yet, this should not discourage the use of this approach. Rather, important limitations of what can be inferred from such comparisons and the extraordinary care we must take when designing and interpreting comparisons should be borne in mind.

Interpretivist Approach

The interpretivist approach takes off where the explanatory and predictive approach stops. It lays bare the cultural and contextual embeddedness of penal arrangements. For example, on the basis of comparing the United States with France and Germany, arguing that the punitive level in the United States is conditioned by the particular American resistance to state power and drive towards egalitarian social status (Whitman 2003). Another example could be contrasting the judicial discretion in Islamic law courts in Morocco with that of courts in the United States’ jurisdictions, showing how local (cultural) concepts and ideas inform the exercise of judicial discretion. Comparing judges’ accounts and views on sentencing in different countries can show that any understanding has to be sensitive to the judges’ different perceptions of harm, crime, sanction, and sentencing objectives.

Characteristically, interpretivist approaches use the sentencing and penal arrangements as indicators of wider cultural and political arrangements. However, taking culture seriously is not reserved to the interpretivist approach. Also predictive and explanatory approaches make use of culture. It is oftentimes difficult to spot the difference between the approaches, and in many studies the two are mixed.

The interpretivist approach firstly requires the observation and understanding of local cultural concepts and meanings and of how they manifest themselves in the different structural layers of criminal sentencing. This is a methodologically difficult task demanding linguistic, cultural, and historical sensitivity that only few have and only the fewest have the months and years to invest. Is one barred from taking this approach if one does not speak the language? How long must one stay in a given place? These are relative questions that limit the reliability of interpretive comparative studies, but that should not bar them. Some scholars use the collaboration between two or more colleagues, representing the legal cultures compared, as the central methodology.

Another important issue of the interpretivist approach is that the boundaries of what counts as legal and penal culture around sentencing can at most be loosely defined. We may cautiously characterize it as conveying the sets of ideas, expectations, and values that in practice and in policy-making is held with regard to penal law, the criminal process, and the sentencing.

A third important issue is that far from everything comes down to local cultures. Comparative studies today take seriously that techniques, ideas, concepts, and meanings travel and are sometimes shared by many jurisdictions, however, different concrete shape they acquire locally. In relation to the specific transport of legal concepts and ideas, see also above about the legal categorical approach. For example, many scholars have described a Western development towards curtailing judicial discretion, increasing the level of standardization and formalization of criminal sentencing. Aas (2005) calls this a development towards “sentencing at a distance.” A significant body of research has looked at how such transnational trends and ideas merge with local legal and political cultures. Some have described how the policy implementation of three-strikes policies takes on local particularities in different countries. Others have described how transnational movements of new court types result in remarkably different forms of courts when institutionalized in different cultures of criminal justice. Yet another example is the different legal constructions of a principle of equality in sentencing that has emerged in different countries with the otherwise transnational development of standardization and formalization of criminal sentencing. The state of Minnesota provides one of the most prominent examples of numerical sentencing guidelines with a strong institutional tie to prison capacity constraints. Equality takes on the character of equality between formal categories, distancing sentencing from an individualized conception of equality. In Denmark (or Germany, Norway, or Sweden), the narrative guidelines and close ties between legal and appellate guidance of sentencing, institutionalized in the professionalization of judging and sentencing, maintain equality in sentencing in its individualized conception. It is a particular strength of the interpretivist approach that it is well adapted to grasp the reflexivity of transnational and local ideas, concepts, and meanings.

Globalization And Comparative Criminal Sentencing

Disregarding purpose or approach, it is today difficult to carry out comparative studies of any area of criminal justice without regard to the transnational or globalized field that the compared fields of practice are in. Globalization may be described as the way in which societies and communities over the last centuries are increasingly interconnected and in which processes of human and societal development are intertwined. Focusing on the processes that stem from this development, Savelsberg (2011) illustrates with three examples of globalization: well-documented conditions of late modernity, global-level scripts offering solutions to challenges across nations, and a new type of global law has emerged in vast areas of application, including penalty bringing with it both new doctrines and institutions (e.g., the international permanent and ad hoc criminal courts).

Globalization first of all affects a traditional approach to comparative criminal sentencing by questioning the nation state and the jurisdictional borders as key units of comparative analysis. Significant processes involve transnational developments, cross border activities, and entire fields of norms and institutions that have moved to a level of international problem-solving. Does that mean that we cannot compare nation states and their practice of criminal sentencing? No. For sure, an argument can be made that it is significantly problematic not to include a transnational dimension in a comparative study of criminal sentencing. However, globalization does not necessarily move the field of study away from the local level of governance and practice. Rather, globalization has become one of the many forces and institutions that matter on a local level, suggesting that we should rather accept and include in our studies the subtle processes between the local and the global. In that way, it modifies the object of study and it forces us to expand on the methods of our comparison. Fourcade and Savelsberg (2006) have developed well-suited themes to such a process perspective in sentencing: first, increasing the focus on agency which locally constructs global domains through local actions; second, recognizing the mutually constitutive relationship between global and local practice; third, emphasizing that the process of globalization itself is tied to transnational power flows with the United States as the power holder; and fourth, bearing in mind that every transnational and global convergence trend is locally manifested and accordingly is interpreted by local national institutions through the lenses of local historical and local political structures. Judicial courts and sentencing cannot be understood as one or the other but rather as dialectic between forces on the local and the global level.

Conclusion

Comparative approaches are important to policy and research about criminal sentencing. Globalization processes challenge the way that we conceptualize national borders and compare countries. But at the same time, globalization underlines the deep necessity of comparing, however, reflexively. This research paper has touched upon important aspects of comparing criminal sentencing, laying bare significant possibilities and issues at stake with the different purposes of comparing, and with the different approaches to comparing sentencing. Accordingly, a legal categorical approach serves valuable purposes of organizing legal traditions but also suffers from the blindness to political, social, and cultural differences. An explanatory or predictive social scientific approach serves to advance our understanding of general questions of sentencing arrangements and provides valid descriptions of causes and effects of national sentencing and sanctioning practices. Nevertheless, it comes with serious concerns about its scientific assumptions, ranging from the units of analysis, its samples, as well as its construction of variables. Finally, an interpretivist approach suffers from the inevitable inability to generalize, yet provides an unparalleled means of understanding the depth and technologies of the relationships between courts, sentencing, and the local cultural context. As such, the interpretivist approach serves to challenge and extend the understanding derived from positivistic approaches. And as with most other things, it is the combination and not the choice of approach that provides the best result.

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