The Role of Previous The Role of Previous ConvictionsConvictions

at sentencingat sentencing Cardiff, November 27Cardiff, November 27

Julian Roberts,Julian Roberts,Faculty of LawFaculty of Law

University of OxfordUniversity of Oxford

First, a little Shakespeare…First, a little Shakespeare…

““Men’s evil manners live in brass; Men’s evil manners live in brass; their virtues we write in water”their virtues we write in water”

““They need to look at what the They need to look at what the person’s achieved as well as the bad person’s achieved as well as the bad things he’s done – good things are things he’s done – good things are never recognized in court.” never recognized in court.”

(Interview with recidivist offender)(Interview with recidivist offender)

What I want to doWhat I want to do

Describe the ways that competing sentencing Describe the ways that competing sentencing theories react to previous convictions;theories react to previous convictions;

Critique the Progressive Loss of Mitigation Critique the Progressive Loss of Mitigation ModelModel

Review the changing role of statutory Review the changing role of statutory provisions regarding previous convictions in provisions regarding previous convictions in England and Wales;England and Wales;

Consider the reactions of the criminal justice Consider the reactions of the criminal justice professionals, the public and offendersprofessionals, the public and offenders

Propose a better way of considering previous Propose a better way of considering previous convictions at sentencingconvictions at sentencing

Problems with pre consProblems with pre cons

Ever-changing statutory frameworkEver-changing statutory framework Insufficient guidance from CACD or Insufficient guidance from CACD or

SGC/SAPSGC/SAP Offender objections to practiceOffender objections to practice Gap between theory and practice Gap between theory and practice

Sentencing Statutes around Sentencing Statutes around the world: the world:

2 Sentencing Universals?2 Sentencing Universals?

Sentence severity is proportionate to Sentence severity is proportionate to the seriousness of offence and the seriousness of offence and offender’s level of culpability;offender’s level of culpability;

Sentence severity is proportionate to Sentence severity is proportionate to the seriousness of the offender’s the seriousness of the offender’s criminal recordcriminal record

Utilitarian SentencingUtilitarian Sentencing

Repeat offenders represent a higher risk to re-Repeat offenders represent a higher risk to re-offend, and are less likely to be rehabilitatedoffend, and are less likely to be rehabilitated

Known as Known as cumulative sentencingcumulative sentencing Problems? Problems?

-- Categorical not individual ascriptions of Categorical not individual ascriptions of risk; risk;

-- an over-prediction of recidivism;an over-prediction of recidivism;

-- mechanical approach to pre consmechanical approach to pre cons

-- little evidence that CS works little evidence that CS works

Sentence severity as a function of criminal history score: Utilitarian Recidivist Premium

0

5

10

15

20

0 2 4 6 8 10

Criminal History Score

Sen

ten

ce S

ever

ity

Five Year Reconviction Rates, Offenders born in 1957

0

10

20

30

40

50

60

70

80

90

0 1 2 3 4 5 6 -9 10-14 15+

Number of Previous Convictions

Per

cen

t

Retributive Theories and Retributive Theories and Previous ConvictionsPrevious Convictions

Consensus on question of pre consConsensus on question of pre cons Two components of a retributive sanction: Two components of a retributive sanction:

(a) crime seriousness and (b) offender (a) crime seriousness and (b) offender culpability; culpability;

all legitimate sentencing factors must be all legitimate sentencing factors must be related to (a) or (b)related to (a) or (b)

Sentencing process must not punish on Sentencing process must not punish on charactercharacter

All retributive theorists now reject the All retributive theorists now reject the position that repeat offenders are more position that repeat offenders are more culpable – more later;culpable – more later;

Two Competing Retributive Two Competing Retributive PerspectivesPerspectives

11. “. “flat rateflat rate” model : ” model : no room to consider pre cons (all offenders no room to consider pre cons (all offenders

sentenced the same) sentenced the same) and and 2. 2. Progressive Loss of Mitigation:Progressive Loss of Mitigation:Discount for first offenders (and 2Discount for first offenders (and 2ndnd, 3, 3rd, 4thrd, 4th?)?)

For the vast majority of offenders the two perspectives For the vast majority of offenders the two perspectives respond the same: respond the same: pre cons carry no weight in aggravation.pre cons carry no weight in aggravation.

How well do these models reflect professional and How well do these models reflect professional and community views?community views?

Sentence Severity as a Function of Criminal History Score:'Pure' Just Deserts

0

5

10

15

20

0 2 4 6 8 10

Criminal History Score

Sen

ten

ce S

ever

ity

Sentence Severity as a Function of Criminal History Score: Progressive Loss of Mitigation

0

5

10

15

20

0 2 4 6 8 10

Criminal History Score

Sen

ten

ce

Sev

erit

y

Problems with Progressive Loss Problems with Progressive Loss of Mitigation (First offender of Mitigation (First offender

discount)discount) Theoretically unrelated to retributivist Theoretically unrelated to retributivist

principles (first offenders not less culpable);principles (first offenders not less culpable); Is it not an example of punishing character?Is it not an example of punishing character? What is the dimension along which offenders What is the dimension along which offenders

are arrayed according to their previous are arrayed according to their previous convictions? convictions?

Implausible for first offenders convicted of Implausible for first offenders convicted of serious crimes; serious crimes;

Never seen in practice (sentencing statistics)Never seen in practice (sentencing statistics)

Percentage of Offenders Imprisoned by Number of Prior Convictions, New South Wales

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5

10

15

20

25

30

0 1 2 3 4 5 6 7 8+

Number of Prior Convictions

Per

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tag

e Im

pri

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Evolving Role of Pre ConsEvolving Role of Pre Consin England and Wales: from “must in England and Wales: from “must

not”, to “may”, to “must”not”, to “may”, to “must”3 key statutes:3 key statutes:

1991 Criminal Justice Act1991 Criminal Justice Act Amendments in 1993 CJAAmendments in 1993 CJA Criminal Justice Act 2003Criminal Justice Act 2003

Criminal Justice Act 1991Criminal Justice Act 1991

s.29(1) An offence s.29(1) An offence shall not be shall not be regarded as more seriousregarded as more serious… by … by reason of any previous convictions reason of any previous convictions of the offender or any failure of of the offender or any failure of his to respond to previous his to respond to previous sentences.sentences.

Criminal Justice Act 1993Criminal Justice Act 1993

s.29(1) as amended:s.29(1) as amended:

In considering the seriousness of In considering the seriousness of any offence, the court any offence, the court may take may take into accountinto account any previous any previous convictions of the offender or any convictions of the offender or any failure of his to respond to failure of his to respond to previous sentences.previous sentences.

Criminal Justice Act 2003Criminal Justice Act 2003

In considering the seriousness of an offence (“the In considering the seriousness of an offence (“the current offence”) committed by an offender who current offence”) committed by an offender who has one or more previous convictions, the has one or more previous convictions, the court court must treat each previous conviction as an must treat each previous conviction as an aggravating factoraggravating factor if (in the case of that if (in the case of that conviction) the court considers that it can conviction) the court considers that it can reasonably be so treated having regard, in reasonably be so treated having regard, in particular to –particular to –

(a)(a) the nature of the offence to which the conviction the nature of the offence to which the conviction relates and its relevance to the current offence, relates and its relevance to the current offence, andand

(b)(b) the time that has elapsed since the convictionthe time that has elapsed since the conviction..

Figure 5.2 Custody Rate by Criminal History Category,

England and Wales (1993-2005)

0

5

10

15

20

25

30

35

40

45

0 1 to 4 5 to 9 10 or more

Number of Previous Convictions

Custody Rate

1993

1994

1995

1997

1998

2000

2001

2002

2003

2004

2005

Attitudes of Criminal Justice Professionals Toward the Recidivist Sentencing Premium, Britain

% of respondents supporting a recidivist sentencing

premium

Police Officers 94%

Prosecutors 90%

Magistrates 83%

Judges 78%

Prison officers 78%

Justices’ clerks 72%

Barristers 63%

Solicitors 58%

Probation officers 51%

Public reaction to pre consPublic reaction to pre cons People ascribe higher ratings of People ascribe higher ratings of

blameworthiness to recidivists – blameworthiness to recidivists – independent of risk of re-offending;independent of risk of re-offending;

Regard a wide range of circumstances Regard a wide range of circumstances to be relevant to blameworthiness; to be relevant to blameworthiness; e.g., remorse; apologies;e.g., remorse; apologies;

Assign higher punishments to reflect Assign higher punishments to reflect pre cons, but within proportional limits pre cons, but within proportional limits

MORI survey 2007MORI survey 2007

First First offenderoffender

Two Two

priors priors Five Five

priorspriors

CrimeCrime

SeriousnessSeriousness

(10 point (10 point scale)scale)

7.357.35 7.637.63 7.997.99

Risk of re-Risk of re-offendingoffending

7.367.36 8.688.68 8.938.93

Sentence Sentence length (in length (in months)months)

25.125.1 40.640.6 46.246.2

Offender ViewsOffender Views

Acceptance that pre cons are Acceptance that pre cons are important factor at sentencing;important factor at sentencing;

Strong consensus that the RSP is a Strong consensus that the RSP is a legitimate sentencing practice;legitimate sentencing practice;

Justifications: the offender has not Justifications: the offender has not “learned his lesson”;“learned his lesson”;

But…manner of application criticized: But…manner of application criticized: too mechanical; no credit for efforts to too mechanical; no credit for efforts to desistdesist

1 1 unrelateunrelatedd

priorprior

3 priors, 3 priors, two two relatedrelated

33

Priors, Priors, all all relatedrelated

EstimatedEstimated

Sentence Sentence (in months)(in months)

11.111.1 31.531.5 35.135.1

FavoredFavored

SentenceSentence25.225.2 54.054.0 69.069.0

Determinants of a proportional Determinants of a proportional sanction: sanction:

crime seriousness and culpabilitycrime seriousness and culpability Crime seriousness unaffected by pre Crime seriousness unaffected by pre

cons – what about culpability?cons – what about culpability? Sentencing statutes make reference Sentencing statutes make reference

to elevated culpability of offenderto elevated culpability of offender Blameworthiness: measured by Blameworthiness: measured by

distance of departure from distance of departure from acceptable conductacceptable conduct

Explaining the divergence Explaining the divergence between theory and between theory and

practice/opinionpractice/opinion Retributivist analysis tightly focused on the Retributivist analysis tightly focused on the

act: narrow “band width” of blameworthiness;act: narrow “band width” of blameworthiness; Public/ CJS professionals have a broader Public/ CJS professionals have a broader

model;model; Need to consider the context (i.e., actions Need to consider the context (i.e., actions

before and after crime):before and after crime): PremeditationPremeditation Remorse/ apologies: public and sentencers’ Remorse/ apologies: public and sentencers’

reaction to the remorseful offender (including rape reaction to the remorseful offender (including rape and capital cases)and capital cases)

Considering the Offender’s Considering the Offender’s perspective: (back to perspective: (back to

Shakespeare)Shakespeare) Q: Are we back to punishing “character”?Q: Are we back to punishing “character”? A: No, only certain conduct should be credited A: No, only certain conduct should be credited

– not a question of moral accounting (good – not a question of moral accounting (good war record etc.);war record etc.);

What kind of conduct? Efforts to desist (even if What kind of conduct? Efforts to desist (even if ultimately unsuccessful) should wash out the ultimately unsuccessful) should wash out the repeat offending premium;repeat offending premium;

Need to consider the role of the state: was the Need to consider the role of the state: was the offender offered help to desist? Did the state offender offered help to desist? Did the state impede desistance or facilitate re-offending?impede desistance or facilitate re-offending?

SummarySummary Flat line and PLM models at odds with Flat line and PLM models at odds with

community sentiment, professional community sentiment, professional opinion and judicial practice;opinion and judicial practice;

Relevant pre cons must increase Relevant pre cons must increase blameworthiness and hence severity of blameworthiness and hence severity of sentence but……….sentence but………. A limit should be placed on the recidivist A limit should be placed on the recidivist

premium – to protect proportionality;premium – to protect proportionality; Offenders should be able to rebut the Offenders should be able to rebut the

presumption of enhanced culpability;presumption of enhanced culpability;

Finally…Finally…

Many thanks for your time and Many thanks for your time and attention!attention!