Note from Across the Pond

The Sentencing Commission for Scotland has issued a couple of reports that should attract wider notice here in the U.S. than they might otherwise.

The first report, Sentencing Guidelines Around the World, is pretty-much aptly titled. It provides a fine overview of various sentencing systems in use around the world, well in the western industrialized world anyway. I think it provides a fair summary of the systems most of the students of criminal sentencing policy will recognize, and some you probably won’t.

The second report, The Scope to Improve Consistency in Sentencing, is also true to its title. It defines sentencing consistency as “offenders committing similar offences are punished with similar penalties by different sentencers, whether those sentencers sit in the same court or different courts.” This blurb does not do justice to the report, which contains a more nuanced understanding of the difficulty of defining “similar” and the tradeoffs between achieving a reasonable level of consistency and respecting other principles such as judicial independence and individualization of sentences (cue the grinding gears and machine noises here).

I like the term consistency in this respect at least: it suggests a modesty of purpose that may be achievable. There are volumes written about “unwarranted disparity” (nicely summarized in this NIJ report here and here). Don’t we all know that disparity exists and it’s a problem for public confidence in justice outputs. But unwarranted disparity is nuanced, rarely overt or overwhelmingly obvious, and hard to ferret out, and much of it does not involve sentencing hearings but earlier stages in the process. And it is a volatile topic, of course. Much lamentation follows, and discussions of eliminating disparity in sentencing (This is no straw man: I have heard this stated in public meetings as the goal).

But is this really possible? What has to be sacrificed to “eliminate” all unwarranted disparity? Are all individual distinctions that correlate with race, gender, or other overt factors to be completely removed from consideration? Can you envision a system that eliminates disparity at the point of sentencing, and is nonetheless unjust? Of course.

Focus on consistency might take us back from the precipice, and allow us to recommend a sentencing system that does better than its predecessors, while recognizing that disparity reduction is one goal, and not the only goal.