Front Door and Backdoor Sentencing Research Paper

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In the literature on criminology and criminal justice, much more appears to have been written on sentencing “law” than on sentencing “practice.” And those who write on sentencing, law or practice, have tended to write about “front door” sentencing: the rules as well as the judicial decisions which impose the initial sentence. But most systems allow some form of “backdoor” resentencing: for example, judges may reduce the sentence on proof of cooperation and progress or administrators may recall to prison those who had been released “early.” Most criminal justice systems allow some sort of “early” release from prison and also recall to prison offenders who somehow “fail” in the community. This research paper argues that understanding “sentencing” involves understanding that it is not just a “one-off” event, but more of a continuous or ongoing process, which should be subject to regular judicial review or oversight.

Introduction

“Sentencing” is normally understood to be the process which happens in court, when an appropriate punishment is imposed on an offender, by a judicial authority. The way in which this happens varies across jurisdictions and within jurisdictions and across time. For example, common law jurisdictions tend to separate a criminal trial into two separate and distinct parts: one which focuses on the decision whether someone is to be found guilty or not of an offence and a separate sentencing stage or hearing which decides on the appropriate sentence. However, in many countries, particularly in continental Europe, the court may decide on conviction and sentence in one process (e.g., the sentence is part and parcel of the French concept of condamnation).

We are immediately faced with some definitional issues which make comparisons so difficult. When is a penalty a “sentence”? Are those who are diverted away from the criminal justice system by formal or informal cautions or warnings “sentenced” (see Padfield et al. 2012)? What about those who are compulsorily detained in mental hospitals, who may or may not have been convicted of their “crimes”? Is the outcome of mediation (increasingly common in a variety of jurisdictions) a “sentence”? What about fixed penalties and the increasingly popular but often misunderstood “restorative justice”? These are all arguably forms of “sentence,” even when administered administratively and not by a court. But when is a court truly a court? Who is a “judge” or what is a “judicial authority”? None of these are easy questions to answer. It is not even clear when a sentence ends: public protection concerns have led many countries to continue to monitor offenders, either formally or informally, even after the completion of their sentence (see, e.g., the English MAPPA or multiagency public protection arrangements). Others allow civil “preventive detention” (e.g., Germany).

Then we reach the main difficulty, for current purposes. There is often a gulf between the sentencing law prescribed by law and what happens “on the ground.” I have found it useful to borrow from the French and to identify three different “levels” of sentencing frameworks (see DelmasMarty et al. 2003). I think the French language works more efficiently here than the English in creating neat labels:

– La peine encourue (to be found in the formal law, whether English statutes or continental Codes Pe´nales), which is the possible sentence, that which is permitted or prescribed by the law. Many of those (particularly many academic criminal lawyers from non-common law jurisdictions!) who look to study sentencing do not look beyond these formal legal rules.

– La peine prononce´e is the sentence given by the judge(s) in court. There has been remarkably little work done around the world analyzing actual sentencing decisions. We may well know how many burglars, for example, are given a custodial sentence in a particular jurisdiction in a particular year, but often we know very little about how the judge(s) reached their decision. The recorded sentence alone gives no insight into the factors which affected the judge, into the way that aggravation and mitigating factors influence individual decisions. There is remarkably little good quality and systematic information about judicial practice (though there have been attempts to gather it: see Tata and Hutton (2002, especially Chap. 19) or the work of the Sentencing Council in England at http://sentencingcouncil.judiciary. gov.uk/docs/CCSS_Experimental_Release_ web.pdf)

– La peine applique´e or execute´e. These are the sentences actually served by offenders. Particularly when we look at custodial sentences, it seems rare that offenders have to serve the precise sentence imposed in court. And even those serving sentences in the community may have their sentence modified during the course of its implementation, of course. It is even more difficult to gather reliable data on this area of sentencing. As we shall see, sentences may be extended or curtailed. They may be varied according to the offender’s rehabilitative needs and/or his or her cooperation with the sentencing and administrative bodies. Short sentences of imprisonment are very often suspended if (but only if) the offender engages (adequately) with probation services. This research paper seeks to argue that sentencing should be seen more as an ongoing process than a one-off event.

All three stages or levels of sentencing are authorized by law, but these labels are to my mind useful as they help us to distinguish law as applied in practice from the law found in statutes or in books. They allow us to contrast the formal rhetoric of statutory penalties with the law as it is implemented. I also adopt the distinction between “front door” and “backdoor” sentencing for similar reasons: it is important to remember that what the judges say when sentencing someone may not accord very closely to the sentence the offender will actually serve in practice. Unfortunately, too much political and academic attention has focused on what is often known as “front door sentencing,” but what happens at the “backdoor,” while often invisible, is just as important. Indeed, because it is often invisible, we must be even more vigilant to ensure due process (fair procedures and fair outcomes).

Front Door Sentencing

In Law

The formal rules of sentencing are laid down by law. Normally, the framework will be laid down by a Parliament or other elected body. This “framework” will vary enormously from jurisdiction to jurisdiction: many countries have a very detailed sentencing code, others a more confused (or confusing) collection of legal rules. The formal law normally lays down maximum sentences, but sometimes minimum or a range of possible sentences. Sometimes a sentencing regime is designed around a court regime: offences are categorized (felonies as opposed to misdemeanors or indictable as opposed to summary offences, crimes as opposed to delicts, etc.). Thus, offences may be subdivided according a court hierarchy or simply according to “seriousness.” The nature of the “judge” may vary: many jurisdictions involve lay judges, sometimes for less serious crimes (e.g., lay magistrates), sometimes for more serious cases (juries). In many jurisdictions the jury has absolutely no role in sentencing, but in others it may decide or in some sense affect the sentence, sometimes deciding with the judge, or sometimes alone, in isolation from the judge(s).

There is widespread agreement that the purposes of sentencing should be identified, but how this is done in law is less easily agreed. Thus, the

English and Welsh judge must have regard to the following purposes (see s. 142 of the Criminal Justice Act 2003):

the punishment of offenders

the reduction of crime (including its reduction by deterrence)

the reform and rehabilitation of offenders the protection of the public

the making of reparation by offenders to persons affected by their offences

Would it be more “effective” to have one priority? Some constitutions grant a constitutional right to rehabilitation: for example, Article 27(3) of the Italian Constitution provides that punishments must aim at resocializing the convicted (Gualazzi et al. 2010). How this applies in practice of course needs to be monitored by empirical research.

Most people would agree that a key requirement is consistency. Consistent sentences are desirable, not least so that the system is fair, and perceived to be fair. But legislating consistency and indeed fairness is no easy business! Nor is it easy to monitor or assess how well a system is achieving consistency. Many jurisdictions have experimented with sentencing grids or frameworks or matrices and have created bodies (often “councils”) to advise either legislatures or the judiciary in the development of guidelines (see Tonry and Frase 2001; Tonry 2007). Appeal courts and academic treatises often offer detailed guidance. This topic is raised here simply to make the point that much time and effort has been extended on developing consistency in “front door” sentencing but much less, as we shall see, on consistent or principled “backdoor” sentencing decisions (though some of the first guidelines in the US system were parole guidelines, intended to correct for the wide differences and perceived arbitrariness of judicial sentencing).

Imprisonment remains the most common sentencing option for serious crime. Some countries, of course, continue to authorize the killing of offenders, implementing a lawful death penalty (see Hood and Hoyle 2008). From a European perspective, this contravenes human rights norms. For most legal systems, imprisonment is the main sentence for the more serious offences. It may be indeterminate or determinate. Some European countries (Croatia, Norway, Portugal, and Spain) have no provision for indeterminate or life sentences of any sort. Of those that do have life sentences, some have mandatory life sentences for some offences (UK, Turkey), while for many, life is only ever at the discretion of the sentencing judge or judges. Total life sentences, life without any possibility of parole, are rare. Some countries permit full or whole-life “tariffs” (there are, e.g., about 30 prisoners in England who know they are serving their whole life in prison) but most have a limit, fixing a minimum term which must be served before a prisoner can be considered for release. Many systems do not individualize this tariff, but simply specify a fixed minimum term to be served. What is important for our purposes is to recognize that without a clear understanding of the rules on getting into prison, we can have little understanding of the rules on getting out. Similarly, the rules on getting out, or on early release, make little sentence without a clear understanding of the rules on getting in. It may be easier to calculate release dates when sentences are of determinate or fixed term lengths. But as we shall see, this is by no means always the case.

Then there are sentences which are served in the community: often involving a financial penalty or the supervision of a probation service. The line between custodial and noncustodial sentences is not easy to understand. In many countries, a sentence of imprisonment may be suspended, with or without conditions, partially or fully. This does not mean that the sentence should not be categorized as a custodial sentence, but the imposition of such a sentence poses both theoretical and practical difficulties. In the Israeli context, Sebba (2001) explains that the sentence of community service work was introduced deliberately as a “prison” sentence, served in the community – in large measure to serve as an encouragement to the courts to confine the use of the sanction to cases sufficiently serious to have justified a sentence of imprisonment in its traditional sense, but doubtless it was also to make clear to a wider “audience” that a community sentence was not a soft alternative.

On what grounds should a court, having decided that an offence (or offender) crosses “the custody threshold,” step back and suspend the sentence? I have argued that the concept of the “custody threshold,” much used in England, is deeply unhelpful, maintaining the unnecessary fiction that even short custodial sentences are somehow “bigger” punishments than alternatives served in the community (Padfield 2011c). What should be the sanctions for minor breaches of conditions attached to noncustodial penalties? Not custody presumably, since the original offence was deemed not to deserve custody. Suspended and community sentences reflect the confusion of purposes: punitive, rehabilitative, and so on. Some systems combine fines and imprisonment. Others specify that they are only alternatives. And many allow “ancillary” penalties which are often the most burdensome components of the sentence: offenders may be deprived of certain rights (the right to drive, even the right to vote in some countries) or ordered to keep in contact with the authorities for many years. Compensation (to victims) and confiscation (of the profits of crime) may be ordered. Given the complexity of options available, it is perhaps not surprising that the practice of sentencing is difficult to understand.

In Practice

In most countries the penalty is “individualized.” The judge or judges select an appropriate sentence or package of sentences for this particular offender. This sentence will normally be announced in open court and publically recorded. Judges are usually rightly required to explain their reasons – though the extent to which they do this varies from jurisdiction to jurisdiction and indeed within jurisdictions practice may vary over time (“moral homilies” come in and out of fashion). Understanding judicial reasoning is not always easy. Most systems require the sentencer to fix a sentence according to the culpability of the offender and the seriousness of the offence, and inevitably this requires some subjective assessment. The role played by aggravating and mitigating factors in reaching the “right” sentence is not well understood, in theory or practice (see Roberts 2011), and it is often difficult to obtain data which helps one understand the reasoning of judges in individual cases.

Here, it is important to explore the literature on discretion. Dworkin famously pointed out that “discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept” (1977: 39). Many writers have sought to explore the use and abuse of discretion in sentencing (see Tata and Hutton 2002; Tonry 2007 for international examples). One interesting conclusion has been that, in jurisdictions which have sought to “control” the abuse of discretionary sentencing powers by grids or guidelines, there has often been (paradoxically) an expansion in discretionary powers elsewhere in the process: most obviously, prosecutors may initiate and control plea or sentence bargains, for example, to avoid rigid sentencing options. This research paper seeks also to point out a different paradox: that while much attention has been paid in many jurisdictions to attempt to control or limit the discretionary power of the front door sentencer, “backdoor” sentencers still often have vast powers which may in effect undermine attempts to develop consistency. These powers often remain invisible to both the legal and academic communities.

Backdoor Sentencing

Noncustodial Sentences

What happens when a fine is not paid? This is more of a problem in some countries than others. The sanction for nonpayment may be a tougher penalty: a community punishment or even custody. This hardly seems to be a suitable response when the original offence only merited a fine. With community penalties, similar problems may arise in relation to noncompliance. Regular review may be better than allowing noncompliance to develop to such an extent that those involved in supervising the penalty feel that a custodial response becomes inevitable. Who supervises the payment of fines or the performance of community punishments? The answers to these questions vary enormously: fine enforcers may be administrative bodies or court-employed staff or private bodies acting under contract.

The front-line enforcers of community orders are in many countries called “probation officers,” but this term is far from universal (they may be criminal justice social workers, justice assistants, or simply part of the prison administration: Padfield 2012a, b). What it is to be a “probation officer” also varies from jurisdiction to jurisdiction and over time within jurisdictions. One interesting issue is whether these “probation officers” should be part of the same service which runs prisons. In England, probation officers were clearly for many decades “officers of the court,” but an increasing concern with the “silo mentality” which divided prison and probation services, thus failing to allow sentences to function “seamlessly” from custodial to community parts, led to the creation of an umbrella organization, the National Offender Management Service (NOMS). But rather than leading to a “seamless” sentence, we have seen the further fragmentation of services, exacerbated by shortage of resources in the community part of the system. The Americans use the term “corrections” to create an impression of coherence and continuity. The same arguments are taking place elsewhere: in France the service pe´nitentiaire d’insertion et de probation (SPIP), the equivalent of the English probation service, has long suffered as the poor relation of the prison estate. The SPIP or the probation officer may have delegated powers to enforce or “police” poor performance – more often, they will have to bring the nonconforming offenders back before a “court” (Herzog-Evans 2011a, b, 2012). Sanctions for poor performance can vary enormously. So do processes.

Custodial Sentences: Early Release

In reality, most custodial sentences are in effect partially suspended. Most prisoners leave prison before the full term of the sentence imposed in court has passed. In many countries there may be a system of remission, which is clearly fixed by law. Thus, in France, every prisoner gets an automatic cre´dit de re´duction de peine (CRP), which can only be lost in the case of proven bad behavior in prison (the prison governor or prosecutor (procureur) can ask the supervising court to disallow the credit): 3 months remission is given for the first year of imprisonment and 2 months per year in subsequent years. The rules are more complex for the most serious offences when the credit can, curiously, be disallowed for medical reasons (see, Reuflet 2010). For short sentences the CRP is 7 days per month. As well as automatic remission, many systems allow a discretionary remission to those who make serious efforts at rehabilitation or to those who have helped the authorities.

Thus, the term “early release” is itself a deeply contested term (see van Zyl Smit and Snacken (2009, Chap. 8). Many authors prefer to speak simply of “release” or “conditional release.” But not all releases are necessarily “conditional” (and the weight of conditions can vary enormously). “Early” release of course has both disadvantages and advantages. The fact that the public may see “early release” as a “cop out,” a pragmatic and cynical way of letting prisoners escape paying the true price of the their crime, may fuel the political punitive rhetoric which (paradoxically) sees more and more people sentenced to longer and longer sentences. The advantages of “early” release to both the offender and the State are perhaps obvious: by limiting the length of sentences, the overall cost of sentences is reduced. These costs include not only the financial costs (which are enormous) but also the human and social costs. Where priority is given to the reintegration of prisoners into free society, it will often make sense to speed the process of release as much as possible. Early release rules can also help prison authorities maintain discipline in prison, by offering a “carrot” to encourage good behavior. But not all prisoners seek early release: in some jurisdictions prisoners may prefer to “max out”; in the USA and some European countries, prisoners can in effect refuse parole, serving all of their sentence in prison, or are released unconditionally, without any supervision postrelease (see, e.g., Bauwens et al. (2012) on the situation in Belgium).

Who makes the decision to release a prisoner? In some countries, or for some prisoners, the rules may be fixed. The prisoner may have to serve a fixed proportion of their sentence. But many systems allow a certain flexibility: perhaps a decision on release is taken by the prison authorities or by a formal court. In some jurisdictions, the competent authority for conditional release is always a judge (a special chamber of the District Courts in Germany or the tribunaux d’application des peines in France). Elsewhere, the decision may be taken by a hybrid body composed of judges and experts or lay members. The Parole Board of England and Wales has been held not to be adequately “independent” to comply with the requirements of Art. 5(4) of the European Convention on Human Rights, which requires that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” But in fact, today, the Parole Board takes few release decisions, now focusing on the release of indeterminate sentence prisoners and those recalled to prison: first release will usually be fixed by law or taken by prison governors (operating a discretionary Home Detention Curfew scheme, which allows prisoners to be released up to 135 days before the midpoint in their sentence (the point at which release becomes automatic), subject to a curfew monitored electronically: see Padfield 2009). This decision should be taken by, or, at the very least, be closely overseen by, independent judicial authorities, especially, it might be argued, in prisons which are run by private sector companies.

The reality, of course, is that the “formal” decision is hugely constrained or may in reality have been taken by other decision-makers, earlier in the process. For example, many “parole boards” are unlikely to authorize release unless a “release plan” has been secured. If a plan has not been prepared, or unless the probation officer supports release, the court or board is unlikely to order or permit release. The extent to which a prisoner is involved in developing a release plan varies enormously: in many jurisdictions, prisoners feel that the “plan” is imposed on them with little discussion or debate. It is not only the presence or absence of a release plan which affects the decision-making. Danzigera et al. (2011) tested the common caricature that justice is “what the judge ate for breakfast.” They looked at parole decisions made by experienced judges in Israel and, perhaps surprisingly, concluded that merely taking a food break may indeed lead a judge to rule differently in cases with similar legal characteristics. We should question not only who takes the decision but how the decision is taken.

Is a released prisoner still technically a prisoner? It may be useful to describe them this way in order not to give a false feeling of “freedom.” Thus, in England and Wales, the moment of “release” can be confusing. Prisoners may be released at “half time” and yet then be required to live in “approved premises” where the rules may be more restrictive than they were in a prison (where the emphasis will have been more on perimeter security than on internal control). This raises, once again, the thorny question of the categorization of prison sentences and of prison regimes (well discussed in Cid and Tebar 2012).

Prisoners released “conditionally” may be subject to a very wide range of possible conditions. Probably a standard condition (which may or may not need to be articulated) is that the offender should not re-offend. German law distinguishes directives (“Weisungen”) from obligations (“Auflagen”). Directives are imposed in order to influence the offender’s behavior and to prevent reoffending, whereas obligations are meant to fulfill the victim’s or society’s desire for satisfaction, for example, by compensating the victim or by making a payment to a nonprofit organization or the state or of community service (Pruin 2012). In many jurisdictions, the conditions include:

– Meeting and keeping in touch with a probation officer

– A residence obligation, with possible curfew, which may or may not be electronically monitored

– Treatment by a psychiatrist/psychologist/medical practitioner

– A positive work obligation (or a requirement not to take work with certain groups, such as children)

– An obligation to make payments to victims

– A requirement not to reside in the same household as children

– A requirement not to approach or communicate with named people

– A requirement to avoid a particular area

– A requirement to attend courses for confronting addictions, improved driving, anger management, etc.

– A drug testing condition

In some US jurisdictions, the conditions may also be loss of civil rights or even a duty to pay supervision fees (Parole and Prisoner Reentry in the United States). Conditions are often complex, difficult to understand, and sometimes contradictory. The literature on life on license is small (but see Appleton (2010) for a detailed and complex picture of the lives of released discretionary life sentence prisoners in England). But when we come to consider the reasons why licenses are revoked, it is important to consider whether the practice of parole supervision might be more supportive (e.g., see Travis 2002). The reality of life for ex-offenders is often challenging, even precarious (see Standing 2011). They face many practical, health, and economic difficulties, including those associated with housing, unemployment, family, and substance misuse. Parole conditions can “get in the way” and make an already precarious lifestyle unworkable. While the conditions may make it easier to monitor the offenders, they can also make it more difficult for people to “go straight” (Maruna 2001). Further, academic research is needed which focuses less on reconviction outcomes and more on prisoners’ perceptions of their lived experience (Padfield 2012a, b; Digard 2010, are an excellent small example).

Many systems of discretionary release rely on actuarial risk predictors. Others rely on more clinical assessments. Even those systems which allow “automatic” early release may continue to be used. The Risk Management Authority in Scotland maintains a detailed directory of approved assessment tools, including summaries of the published evaluations of each tool (see www.RMAscotland.gov.uk). Of course, actuarial assessments can only ever be predictors. It is very dangerous to move from these generalized risk assessments to the applications to the lives of real people. There will be false-positives (those who are predicted to re-offend and who don’t) and false-negatives (those who are predicted not to re-offend, but who do so). As well, it can be immensely difficult for the individual to “live down” a risk assessment (see Padfield 2011b).

Custodial Sentences: Revocation Of License/ Recall To Prison

While there is a small literature on the law and practice of release and parole (particularly in the USA and common law context and increasingly in Europe: see Padfield et al. (2010)), the international academic literature on parole or license revocations seems to be emerging very recently. It can sometimes appear as though academic interest ends with release: as though release is the end of the story. But the reality of release from prison is very different. Successful reintegration, or reentry, is notoriously difficult (see Maruna 2001). Desistance from a criminal lifestyle rarely happens overnight: prisoners serving sentences in the community may be returned to prison for “failures” on license. The costs of incarceration and failure are enormous, but how do we measure success and failure? It may be that insufficient attention is paid to what for some offenders are significant successes (e.g., turning up most of the time for appointments). It is all too easy to conclude that poor attendance is a failure!

Conditional release may end for a variety of reasons. Most common may be allegations of fresh offences. Of course these new offences do not necessarily have to be proved before revocation take place. So the “recall” may be initiated in effect by the police when they arrest a suspect. There are important questions about the status of offenders on license when rearrested: should they be unconvicted prisoners until the new offences are proved? Prisoners may remain in prison even after allegations are dropped or after they have been acquitted in court (see Padfield 2012a, b). Others will be brought back to prison because their behavior on license or on parole has caused significant concern to those who have the responsibly of supervising them in the community (see Collins 2007). These reasons may be very difficult for the prisoner to challenge. There are in many jurisdictions stark contrasts between the judicialized release process and the executive decision to recall to prison. The process for challenging recall may be administrative or judicial. Often it is very slow and impenetrable (see Padfield (2012a, b) and the special issue of the European Journal of Probation which carries articles from nine different European jurisdictions: Volume 4, Issue 1, 2012, freely available at www.ejprob.ro). In many jurisdictions the number and percentage of prisoners who are in prison as parole violators or for alleged breaching of their conditions is rising sharply. It may well be that this increasing number may have a significant impact on the stability of the prison population: angry and embittered prisoners are difficult to manage. Thus, there are practical as well as “human right” reasons for us to be concerned about this issue.

Why have scholars not followed developments in the law and practice of release and recall to prison more closely? Part of the explanation may well be the division between criminology and law in many countries. And within law, there is often a vast divide between criminal lawyers (whose role often seems to end when their client is sent to prison) and public or administrative lawyers (who are involved in challenging decisions taken by prison authorities). Yet there does seem to be a slowly growing recognition that backdoor sentencing is as “important” as front door sentencing. Might the time be coming when the same lawyer sees it as their responsibility to support their client throughout the whole of the criminal justice process? The provision (i.e., funding) of good quality legal advice and representation is of course also fundamental.

Another important consideration is the purpose of sentencing, which we started with in the introduction to this research paper. Do the same purposes apply to backdoor sentencing as to front door sentencing? In the USA the concept of “reentry” seems to have won a certain symbolic or rhetorical importance (see Petersilia 2003; Travis and Visher 2005). In Europe, the concepts of rehabilitation or reintegration are more common: but all point towards an aspiration to include ex-offenders within the wider community. Yet governments are often more focused on excluding the “dangerous”: on public protection and more exclusionary means of reducing recidivism. The human rights discourse helps to remind us that offenders are individuals, not statistics. If we do not focus on this, we may regret that there is not just a front and a backdoor into the prison system, but simply a revolving door (see Weaver et al. 2012).

Conclusions

This research paper has sought in particular to encourage a closer enquiry into the relationship between “front door” sentencing with the less studied “backdoor.” The danger of this brief entry is that it results in simple generalizations. Yet sentencing is a complex process. The decision-making process may be structured by the law, or unstructured, and some stages in the process may be less or more structured than others. A dilemma flows through all legal processes: the tension between the need for certainty and the need for flexibility. In order to be fair, some flexibility may well be necessary. For example, some prisoners will be released early on compassionate grounds: can the grounds for this be spelt out precisely in advance? Flexibility means discretionary powers, and discretion is the first cousin of discrimination. Dworkin’s doughnut (an American ring doughnut, not a British doughnut!), mentioned earlier, is interesting because of the surrounding belt of restriction: the socio-legal context of decision-making (for a fuller introduction to the literature on discretionary decision-making, see Gelsthorpe and Padfield 2003). In seeking to monitor the fairness of sentencing decisions, we need to be particularly vigilant about gender and racial discrimination (see Thompson 2009; Turnbull and Hannah-Moffat 2009; Barry and McIvor 2010; Hannah-Moffat and Yule 2011).

We need therefore to consider who is making these front door and backdoor decisions and in what conditions. We have noted that these “judges” are also severely constrained by decisions taken earlier in the process. Parole or probation officers often hold the key to release.

Their role is vital yet confusing: often empowered simultaneously to monitor and to support, as well as to sanction (Lynch 1998). If sentencing is, as is argued here, a series of very different decisions, often made by very different “players” within the process, the importance of close oversight is obvious. Due process, the rule of law and the separation of powers suggest that judicial oversight is essential.

Lawyers, psychologists, psychiatrists, criminologists, sociologists, and anthropologists all have a vital role in developing the analytical tools which help us understand the whole sentencing process: from the moment of arrest perhaps or from charge and plea bargain, to release and recall, to successful reintegration. Vast differences exist between times and place, and political agenda and legal frameworks vary. Yet there are some common themes, which include an increasing literature on legitimacy and on fairness in sentencing. The right to individual liberty is fundamental; the power of the state should never be arbitrary. The rules on sentencing ought to be clear and to be enforced fairly and transparently.

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