CHAPTER 03

SENTENCING PRACTICE AND GUIDELINES JURISDICTION IN UK AND

USA COURTS AND TRIBUNALS.
3.1: Sentencing practice and guidelines jurisdictions in UK courts and tribunals
Criminal Justice
Most people feel very strongly about crime, and judges and magistrates play a vital role in the
criminal justice system especially when it comes to sentencing. Criminal cases come to court
after a decision has been made by, usually the Crown Prosecution Service, to prosecute someone
for an alleged crime. In the vast majority of cases (over 95 per cent), magistrates hear the
evidence and, as a panel, make a decision on guilt or innocence. For more serious cases a district
judge (Magistrates’ Court) or a circuit judge in the Crown Court will hear the evidence, and in
the case of the latter, this will involve a jury trial. Very serious criminal cases, such as murder
and rape, may be heard by a High Court judge.1
Both magistrates and judges have the power to imprison those convicted of a crime, if the
offence is serious enough. But imprisonment is not the only solution; a judge or magistrate can
order a community punishment, or put an individual under some sort of control order where their
movements or activities are restricted. Although punishment is a key consideration when
sentencing, judges will also have a mind as to how a particular sentence may reduce the chances
of an individual re-offending.

A judge hearing a criminal case

Before a criminal trial starts the judge will familiarize himself or herself with the details of the
case by reading the relevant case papers. These include the indictment which sets out the charges
on which the defendant is to be tried, witness statements, exhibits and documentation on
applications to be made by any party concerning the admissibility of evidence in the trial.

1
National Research Council, The Growth of Incarceration in the United States (Washington,
DC: The National Academies Press, 2014, p. 347
For jury trials in the Crown Court, the judge supervises the selection and swearing in of the jury,
giving the jurors a direction about their role in the trial of deciding the facts and warning them
not to discuss the case with anyone else.
Once the trial has commenced the judge ensures that all parties involved are given the
opportunity for their case to be presented and considered as fully and fairly as possible. The
judge plays an active role during the trial, controlling the way the case is conducted in
accordance with relevant law and practice. As the case progresses the judge makes notes of the
evidence and decides on legal issues, for example, whether evidence is admissible.

If the jury find the defendant guilty then the judge will decide on an appropriate sentence. The
sentence will be influenced by a number of factors: principally the circumstances of the case, the
impact that the crime has had on the victim and relevant law especially guideline cases from the
Court of Appeal. The judge will equally take into account the mitigation and any reports and
references on the defendant. Only once the judge has considered all of these factors will the
appropriate sentence or punishment be pronounced2.

3.1.1: Role and guidelines of superior court

High Court judges can hear the most serious and sensitive cases in the Crown Court (for example
murder) and some sit with Appeal Court judges in the Criminal Division of the Court of Appeal.
Most High Court Judges sit in the Queen’s Bench Division. They will also deal at first instance
with the more serious criminal cases heard in the Crown Court and, relatively early in their
careers can be appointed to hear serious criminal matters in Crown Court centers out of London.

3.1.2: Role and guidelines of subordinate courts

District Judge
The role of a district judge (magistrates’ courts) is to complement the work of the magistracy.
They are legally qualified, salaried judges and they usually deal with the longer and more

2
National Research Council, The Growth of Incarceration in the United States (Washington, DC: The National
Academies Press, 2014, p. 339
complex matters that come before magistrates’ courts. District judges (magistrates’ courts) also
have jurisdiction to hear cases under the Extradition Acts and the Fugitive Offender Acts.

3.1.3: Role and guidelines of different tribunals

Court of Appeal – Criminal Division
The Lord Chief Justice is President of the Court of Appeal Criminal Division. He is supported in
this role by a Vice President. Judges in the Criminal Division hear appeals in criminal matters
from the Crown Court.
In the Criminal Division the bench usually consists of a Lord or Lady Justice and usually two
High Court judges.
Circuit Judges – criminal
Circuit judges may deal solely with civil, family or criminal work, or divide their time between
the three. Most Crown Court cases are heard by circuit judges, although less complex or serious
matters may be dealt with by fee-paid Recorders. Some cases from magistrates’ courts will come
to the Crown Court to be heard by a circuit judge – for example, if the defendant has opted for
trial by jury, or the magistrates decide they do not have sufficient sentencing powers to deal with
a guilty party (magistrates can impose a maximum six-month sentence for a single offence, with
a total of 12 months for multiple offences).
Recorders
Recorders are fee-paid, part-time judges. For many it is the first step on the judicial ladder to
appointment to the circuit bench. Recorders’ jurisdiction is broadly similar to that of a circuit
judge, but they generally handle less complex or serious matters coming before the court.
It is a post open to any fully qualified solicitor or barrister with at least ten years’ practice before
the Crown or county courts. They are required to sit for between 15 and 30 days every year with
at least one ten-day continuous period. The appointment is for an initial five-year period,
extendible for further successive five year terms up to the retirement age of 653.

3
Bureau of Justice Statistics. 2002. Recidivism of Prisoners Released in 1994. Washington, DC: U.S. Department of
Justice.
3.1.4: conclusion
Once all evidence in the case has been heard the judge’s summing up takes place. The judge sets
out for the jury the law on each of the charges made and what the prosecution must prove to
make the jury sure of the case. At this stage the judge refers to notes made during the course of
the trial and reminds the jury of the key points of the case, highlighting the strengths and
weaknesses of each side’s argument. The judge then gives directions about the duties of the jury
before they retire to the jury deliberation room to consider the verdict.

3.2: Sentencing Practice and Guidelines in USA Courts and Tribunals

Rules of Appellate Procedure

The Federal Rules of Appellate Procedure (eff. Dec. 1, 2017) govern procedure in the United
States courts of appeals. The Supreme Court first adopted the Rules of Appellate Procedure by
order dated December 4, 1967, transmitted to Congress on January 15, 1968, and effective July
1, 1968. The Appellate Rules and accompanying forms were last amended in 2017.
The Federal Rules of Bankruptcy Procedure (eff. Dec. 1, 2017) govern procedures for
bankruptcy proceedings. For many years, such proceedings were governed by the General Orders
and Forms in Bankruptcy promulgated by the Supreme Court. By order dated April 24, 1973,
effective October 1, 1973, the Supreme Court prescribed, pursuant to 28 U.S.C. § 2075, the
Bankruptcy Rules and Official Bankruptcy Forms, which abrogated previous rules and forms.
Over the years, the Bankruptcy Rules and Official Forms have been amended many times, most
recently in 20174.
The National Guard and Reservists Debt Relief Act of 2008, Pub. L. No. 110-438, as amended
by Public Law No.114-107, provides a temporary exclusion from the bankruptcy means test for
certain reservists and members of the National Guard. At the request of the Judicial Conference's
Advisory Committee on Bankruptcy Rules, Interim Rule 1007-I was transmitted to the courts for
adoption as a local rule to implement the temporary exclusion.

4
Pew Center on the States. 2009. One in 31: The Long Reach of American Corrections. Washington, DC: The Pew
Charitable Trusts
Rules of Civil Procedure
The Federal Rules of Civil Procedure (eff. Dec. 1, 2017) govern civil proceedings in the United
States district courts. Their purpose is "to secure the just, speedy, and inexpensive determination
of every action and proceeding." Fed. R. Civ. P. 1. The rules were first adopted by order of the
Supreme Court on December 20, 1937, transmitted to Congress on January 3, 1938, and effective
September 16, 1938. The Civil Rules were last amended in 2017.

Rules of Criminal Procedure

The Federal Rules of Criminal Procedure (eff. Dec 16, 2017) govern criminal proceedings and
prosecutions in the U.S. district courts, the courts of appeals, and the Supreme Court. Their
purpose is to "provide for the just determination of every criminal proceeding, to secure
simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and
delay." Fed. R. Crim. P. 2. The original rules were adopted by order of the Supreme Court on
December 26, 1944, transmitted to Congress on January 3, 1945, and effective March 21, 1946.
The rules have since been amended numerous times, most recently in 2016.
Rules of Evidence
The Federal Rules of Evidence (eff. Dec. 1, 2017) govern the admission or exclusion of evidence
in most proceedings in the United States courts. The Supreme Court submitted proposed Federal
Rules of Evidence to Congress on February 5, 1973, but Congress exercised its power under the
Rules Enabling Act to suspend their implementation. The Federal Rules of Evidence became
federal law on January 2, 1975, when President Ford signed the Act to Establish Rules of
Evidence for Certain Courts and Proceedings, Pub. L. No. 93-595. As enacted, the Evidence
Rules included amendments by Congress to the rules originally proposed by the Supreme Court.
The most recent amendments to the Federal Rules of Evidence were adopted in 2017.

Rules Governing Section 2254 and Section 2255 Proceedings

Generally, the Rules Governing Section 2254 Cases in the United States District Courts govern
habeas corpus petitions filed in a United States district court pursuant to 28 U.S.C. § 2254 by a
person in custody challenging his or her current or future custody under a state-court judgment
on the grounds that such custody violates the Constitution or laws or treaties of the United States.
The Rules Governing Section 2255 Proceedings for the United States District Courts govern
motions to vacate, set aside or correct a sentence filed pursuant to 28 U.S.C. § 2255. Such
motions must be filed in the sentencing court by a person in custody attacking the sentence
imposed on the ground that the sentence was imposed in violation of the Constitution or laws of
the United States, that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack5.

The Supreme Court submitted proposed rules and forms governing proceedings under Section
2254 and Section 2255 to Congress on April 26, 1976, but Congress exercised its power under
the Rules Enabling Act to suspend their implementation. The Rules Governing Section 2254 and
Section 2255 Proceedings, as amended by Congress, became federal law on September 28, 1976,
and made applicable to petitions filed under Section 2254 and motions filed under section 2255
on or after February 1, 1977. Pub. L. No. 94-426. The rules were last amended in 2009.

Rules of the Foreign Intelligence Surveillance Court

The Rules of Procedure for the Foreign Intelligence Surveillance Court were promulgated
pursuant to 50 U.S.C. § 1803(g). They govern all proceedings in the Foreign Intelligence
Surveillance Court and were last amended in 2010.

3.2.1: Role and guidelines of superior courts

Supreme Court of the United States

The Supreme Court of the United States (sometimes colloquially referred to by the acronym
SCOTUS)[2] is the highest federal court of the United States. Established pursuant to Article
Three of the United States Constitution in 1789, it has ultimate (and largely discretionary)

5
The Economist. 2010. “Rough Justice: America Locks Up Too Many People, Some for Acts That Should Not Even
Be Criminal.” The Economist (July 24, 2010): 13.
appellate jurisdiction over all federal courts and state court cases involving issues of federal law
plus original jurisdiction over a small range of cases. In the legal system of the United States, the
Supreme Court is generally the final interpreter of federal law including the United States
Constitution, but it may act only within the context of a case in which it has jurisdiction. The
Court may decide cases having political overtones, but does not have power to decide non-
justifiable political questions, and its enforcement arm is in the executive rather than judicial
branch of government.

According to federal statute, the Court normally consists of the Chief Justice of the United States
and eight associate justices who are nominated by the President and confirmed by the Senate.
Once appointed, justices have lifetime tenure unless they resign, retire, or are removed after
impeachment.

3.2.2: Role and guidelines of subordinate courts

Chief Justice of the United States

The Chief Justice of the United States is the chief judge of the Supreme Court of the United
States and thus the head of the United States federal court system, which functions as the judicial
branch of the nation's federal government. The Chief Justice is one of nine Supreme Court
justices; the other eight have the title of Associate Justice6.

The Chief Justice, as the highest judicial officer in the country, serves as a spokesperson for the
federal government's judicial branch and acts as a chief administrative officer for the federal
courts. The Chief Justice is also head of the Judicial Conference of the United States and, in that
capacity, appoints the director of the Administrative Office of the United States Courts. By law,
the Chief Justice is also a member of the Board of Regents of the Smithsonian Institution and, by
custom, is elected chancellor of the board.

The Chief Justice leads the business of the Supreme Court and presides over oral arguments.
When the court renders an opinion, the Chief Justice when in the majority decides who writes the

6
Tonry, Michael. 2011. Punishing Race: A Continuing Dilemma. New York: Oxford University Press.
court's opinion. The Chief Justice also has significant agenda-setting power over the court's
meetings. In the case of an impeachment of a President of the United States, which has occurred
twice, the Chief Justice presides over the trial in the U.S. Senate. Additionally, the presidential
oath of office is typically administered by the Chief Justice (although the Constitution does not
assign this duty to anyone in particular).

Since the Supreme Court was established in 1789, 17 persons have served as chief justice. The
first was John Jay (1789–1795). The current chief justice is John Roberts (since 2005). Four—
Edward Douglass White, Charles Evans Hughes, Harlan Fiske Stone, and William Rehnquist—
were previously confirmed for associate justice and subsequently confirmed for chief justice
separately.

3.2.3: Role and guidelines of different tribunals.

Associate justice

Associate Justices of the Supreme Court of the United States are the members of the Supreme
Court of the United States other than the Chief Justice of the United States. The number of
associate justices is determined by the United States Congress and is currently set at eight by the
Judiciary Act of 18697.

Like the chief justice, associate justices are nominated by the President of the United States and
are confirmed by the United States Senate by majority vote. This is provided for in Article II of
the Constitution, which states that the president "shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint... Judges of the Supreme Court." Although the Constitution
refers to them as "Judges of the Supreme Court", the title actually used is "Associate Justice",
introduced in the Judiciary Act of 1789. Associate justices were traditionally styled "Mr. Justice"
in court opinions, but the title was shortened to "Justice" in 1980, a year before Sandra Day
O'Connor became the first female justice.

7
Walmsey, Roy. 2009. World Prison Population List, 8th ed. London: International Centre for Prison Studies.
Article III of the Constitution specifies that associate justices and all other United States federal
judges "shall hold their Offices during good Behavior". This language means that the
appointments are effectively for life, and that, once confirmed a justice's tenure of office ends
only when they die, retire, resign, or are removed from office through the impeachment process.

Each Supreme Court justice has a single vote in deciding the cases argued before it; the chief
justice's vote counts no more than that of any other justice. However, the Chief Justice when in
the majority decides who writes the court's opinion. Otherwise, the senior justice in the majority
assigns the writing of a decision. Furthermore, the chief justice leads the discussion of the case
among the justices. The chief justice has certain administrative responsibilities that the other
justices do not and is paid slightly more ($255,500 per year, as opposed to $244,400 per year for
each associate justice.

Associate justices have seniority by order of appointment, although the chief justice is always
considered to be the most senior. If two justices are appointed on the same day, the older is
designated the senior justice of the two. Currently, the senior associate justice is Clarence
Thomas. By tradition, when the justices are in conference deliberating the outcome of cases
before the Court, the justices state their views in order of seniority. The senior associate justice is
also tasked with carrying out the chief justices's duties when he is unable to, or if that office is
vacant.

Local Court Rules

United States district courts and courts of appeals often prescribe local rules governing practice
and procedure. Such rules must be consistent with both Acts of Congress and the Federal Rules
of Practice and Procedure, and may only be prescribed after notice and an opportunity for public
comment. A court's authority to prescribe local rules is governed by both statute and the Federal
Rules of Practice and Procedure8

8
. 28 U.S.C. §§ 2071(a)-(b); Fed. R. App. P. 47; Fed. R. Bankr. P. 9029; Fed. R. Civ. P. 83; Fed.
R. Crim. P. 57.
3.2.4: Conclusion
In modern discourse, the justices are often categorized as having conservative, moderate, or
liberal philosophies of law and of judicial interpretation. Each justice has one vote, and while a
far greater number of cases in recent history have been decided unanimously, decisions in cases
of the highest profile have often come down to just one single vote, thereby exposing the justices'
ideological beliefs that track with those philosophical or political categories. The Court meets in
the Supreme Court Building in Washington, D.C9.

9
Yoder, Steve. 2010. “Crime and the Governors.” The Crime Report, October 27, 2010. Available at
 CHAPTER 4
SIMILARITY AND DISSIMILARITY OF SENTENCING GUIDELINE STRUCTURE IN
UK AND USA

4.1. Sentencing guideline structure in UK and USA: Similarity and dissimilarity

The new UK Guidelines draw heavily on the US Sentencing Guidelines for Organizations (the
“US Sentencing Guidelines”), which were first introduced in 1991. Like the UK Guidelines, the
US Sentencing Guidelines prescribe a series of steps in order to arrive at an appropriate penalty
for corporate criminal conduct3. First, the court considers penalties that are required to remedy
the harm caused by criminal conduct. Second, the court determines an appropriate fine based on
an “offence level,” a “culpability score,” and other considerations that are designed to punish and
to deter future misconduct. Although they are now “advisory,”4 meaning that federal courts are
not required to adhere to them, most white collar practitioners believe that the structure provided
by the US Sentencing Guidelines has led to greater certainty and predictability in federal
criminal sentencing and, accordingly, in negotiated resolutions of federal criminal charges10.

Like the new UK Guidelines, the US Sentencing Guidelines also create incentives for
organisations to institute “effective compliance and ethics programmes,” which can reduce an
organisation’s culpability score if it is later found to have engaged in criminal conduct5. In order
to qualify, such programmes should meet seven key criteria: (1) established standards and
procedures to prevent and detect criminal conduct; (2) oversight by high-level personnel; (3)
reasonable efforts to exclude individuals who have engaged in misconduct from exercising
substantial authority; (4) effective communication to and training for all levels of employees; (5)
reasonable steps to achieve compliance, including systems for monitoring, auditing, and
reporting suspected wrongdoing without fear of reprisal; (6) consistent enforcement of
compliance standards including disciplinary mechanisms; and (7) reasonable steps to respond to
and prevent further offences upon detection of a violation. If an organisation has an effective

10
Oliss, Philip. 1995. "Mandatory Minimum Sentencing: Discretion, the Safety Valve, and the Sentencing
Guidelines." University of Cincinnati Law Review 63.
compliance and ethics programme in place and self-reports criminal conduct, the presumptive
fines under the US Sentencing Guidelines can be reduced by as much as 95%.

The incentives created by the US Sentencing Guidelines for organizations have also been
recognized in the US Department of Justice’s Principles of Federal Prosecution of Business
Organizations, which governs how all federal prosecutors investigate, charge, and prosecute
corporate crimes. Although a robust corporate compliance programme, self-reporting, and
cooperation with the authorities will not necessarily absolve a corporation from criminal liability,
they are important factors that must be considered by a prosecutor before bringing criminal
charges against a business organisation6. Furthermore, if criminal charges are brought, those
same factors will help an organization negotiate a favorable plea bargain.

An organisation which is involved in multi-jurisdictional investigations and which is thinking of

self-reporting must bear in mind that the English courts have in the past interfered with
agreements reached with the prosecuting authorities where the pleas do not adequately reflect the
alleged misconduct (for example in the BAE case). In the US, on the other hand, prosecutors
play a more decisive role in determining the extent of corporate criminal liability. The parties
often agree on a guilty plea and penalties before charges are ever filed in court, and courts are
unlikely to disturb a negotiated result.

In the past, the UK has been criticized in some quarters for its record in sentencing corporate
offenders, in contrast to the huge penalties that have been imposed in recent years in the US.
Will this gap be narrowed as a result of the new UK Guidelines? We think it unlikely that the
breathtaking multi-billion dollar penalties will be emulated in the UK in the near future, but we
envisage that the UK trend will be significantly upwards and that the new UK Guidelines will
lead to a narrowing of the current gap between financial penalties imposed in the UK and the
US11.

11
Parson, Elizabeth A. 1994. "Shifting the Balance of Power: Prosecutorial Discretion Under the Federal Sentencing
Guidelines." Valparaiso University Law Review 29.
The UK Guidelines also reinforce the importance of pro-active compliance as this will be a
mitigating factor when assessing culpability and will be taken into account when a sentence is
adjusted. Moreover, in the decision making process as to whether to self-report and/or cooperate
with prosecutors/investigators, companies and their advisers now have some clarity on their
potential exposure to fines, compensation and confiscation orders, as well as clear guidance on
how cooperation can impact the quantum of such penalties12.

Life sentences that truly mean a lifetime in prison are rare in the UK but common in the
US. Why is this punishment so prevalent in the US?

An English court handed a whole –life sentence to Dale Cregan for murdering four people,
including two policewomen.

That penalty means he will never be eligible for release, and it puts him in rare company, making
him one of about 50 people in the UK serving such a sentence.Had he been in the US, he would
have been less of an anomaly.In the US, at least 40,000 people are imprisoned without hope for
parole, including 2,500 under the age of 18.

That is just a fraction of those who have been given a life sentence but yet may one day win
release. The Sentencing Project, a non-profit organization that studies sentencing and criminal
justice in America, estimated in 2009 that at least 140,000 prisoners in the US now serve a life
sentence.This does not include convicts given extremely long sentences with a fixed term, like
the Alabama man sentenced to 200 years for kidnapping and armed robbery.

Most of them will have the opportunity for parole - though Sentencing Project Director Marc
Mauer says few will receive it. Criminals are always less popular than victims Franklin Zimring,
University of California, Berkeley David Wilson, professor of criminology at Birmingham City
University, says several factors underlie the high number of American convicts imprisoned for

12
Reitz, Kevin R. 2002. "American Law Institute, Model Penal Code: Sentencing, Plan for Revision." Buffalo
Criminal Law Review 6.
life. "In large part it reflects the overly punitive nature of the American criminal justice system,"
says Mauer.

"Not only do we use life sentences much more extensively than other industrial nations, but even
in the lower level of event severity, the average burglar or car thief will do more time than they
will in Canada or Wales."

The harsh sentences reveal a type of "sentencing inflation" that began in the 1980s and 1990s. "It
was almost a competition among legislatures of both parties to show how tough they could be on
crime," says Mauer.

At the same time, the sentence is thought to send a message."In states like Michigan where they
don't have a death penalty, this is what they have as its moral equivalent," says Franklin Zimring,
professor of law at the University of California, Berkeley. In states that do have the death
penalty, long sentences underscore distaste for crimes that do not meet the threshold for capital
punishment."This is a way of putting a denunciatory exclamation point in the punishment," he
says. Politicians and other state officials are loath to be seen as soft on crime, let alone to release
an offender on parole only to have him commit another crime.

The 1993 death of Polly Klaas, a young girl killed by a recently paroled man with a long
criminal history, led California to pass a "three strikes" rule mandating a sentence of 25 years to
life for anyone found guilty of three felonies. But now, in both the US and the UK the sentence
of life without parole is coming into question.

In England, these sentences are currently being challenged in the European Court Of Human
Rights, after a lawsuit brought by three men serving whole life sentences - "a double murderer, a
man who wiped out his entire family to inherit money, and a serial killer," says Wilson.

These men, at least one of whom proclaims his innocence, argue that the denial of a parole
option does not allow them to claim they have changed. They further argue that the assignment
of these sentences is arbitrary - some convicted killers get them, others do not. In the US, budget
cuts have forced states to reconsider whether the practice of locking criminals up for long
periods of time is cost-effective."Lawmakers in Illinois have made the decision to shut down a
few prisons and let people out early in order to save money," says Dan Bernhardt, professor of
economics at the University of Illinois.

"There's nothing like state budget problems to get people to see what the costs are."

In 2012, the US Supreme Court also established that for minors, a sentence of life without parole
violates the constitution’s safeguards against "cruel and unusual" punishment. The court also
ruled that prison overcrowding in California - due in part to severe sentencing and the three
strikes programmed - violates the same safeguards. It ordered the state to release tens of
thousands of prisoners. But action after these verdicts has been slow, as state officials continue to
fight in court. In the US, once someone has been sent to prison on a life sentence, it's hard for
him or her to get out.

4.3. Comparative study between sentencing policy in UK and USA

A number of authors have remarked upon growing similarities between the criminal justice
systems of western industrialized countries, and in particular, the apparent spread of penal
policies associated with the USA to other liberal democracies (Christie, 2000; Nellis, 2000;
Garland, 2001; Jones and Newburn, 2002a). Two general approaches to describing and
explaining such developments can be identified in the literature, which may be termed
`structuralist' and `agency-led' respectively. The former approach links similar developments in
crime control policy and discourse in different jurisdictions to deeper cultural and structural
changes being experienced in all `late modern' capitalist societies. By contrast, the latter
approach focuses more directly upon the arena of political decision making, and the incidence of
policy transfer and imitation. This article argues that both these approaches would gain much
from a more complex consideration of what `policy' is, and, in particular, where it comes from.
More detailed empirical studies of the process of penal policy formation in different countries are
a vital precondition to better understanding of how changes in social routines and cultural
sensibilities are reflected in key political decisions. This is illustrated by consideration of three
high-profile examples of British penal policy developments in recent years, all of which have
been associated with similar changes in the USA. These are privatized corrections, `zero
tolerance' policing strategies and the registration of sex offenders. We argue that these examples
highlight the need for both broad generalizing studies of the structural and cultural preconditions
for certain policy developments, and detailed studies of the process of criminal justice policy
making.13

In the UK we’ve looked down on America’s criminal justice system as an underfunded joke for a
long time, but once someone is on trial, he or she probably gets a fairer crack of the whip.
Evidence rules are tighter in the US, so juries can’t usually know about previous convictions or
hearsay evidence, and the defendant can challenge jury members if they may be prejudiced. Of
course the US public defender system is completely underfunded, but as legal cuts really bite, in
2014 can we say that we are much better? At least the barbarism of the death penalty has been
avoided in the UK, but as whole life sentences become more prevalent, are we inching closer to
the US year by year?

13
Spohn, Cassia C. 2002. How Do Judges Decide?: The Search for Fairness and Justice in Punishment. Thousand
Oaks, Calif.: Sage.
 CHAPTER 5
CONCLUSION
5.1. Strength
‘Enhanced sentencing’ is applicable in cases whereby hostility has been successfully established
by the prosecution. This provision currently applies to all five recognized characteristics under
sections 145-146 of the Criminal Justice Act 2003 where the issue is motivations or
demonstrations of hostility in offences, but the implementation of this provision has been
questionable. Furthermore, the eventual conviction will not necessarily indicate the prejudicial
motivator on the offender’s record or anywhere else.
By contrast, the Crime and Disorder Act 1998 recognizes offences aggravated by hostility, but
only for racial or religious offences. The Commission assessed the scope of extending the 1998
Act to apply equally to all five currently protected characteristics. They suggested that in
principle this would be a good idea to enhance equality, but noted that a full-scale review of how
both the 1998 and 2003 Acts works in practice to assess whether the enhanced sentencing
systems are fit for purpose or in need of amendment and/or equalizing.
For example, this ‘weapon’, as outlined by the Commission, has its shortcomings. In cases
brought under the 2003 Act, the judge is required to declare to the court that the sentence has
been enhanced due to the hate element. However, it is rarely if ever recorded elsewhere, thus for
researchers seeking to assess the prevalence and efficacy of this sentencing provision, little data
are available for review. Speculation also abounds whether this provision is being under-used
due to several factors such as the motivation or hostility element being difficult to prove; the
current system of plea-bargaining making the ‘standard’ sentence look more favorable than the
enhanced version; or the absence of a stigmatic labeling if the enhanced element is dropped in
return for a guilty plea to the base offence. This latter point is important as to be an assailant is
one thing, but a racist assailant quite another.

In effect, such a ‘weapon’ is largely tokenistic if it is being deployed in the manner for which it
was designed. However, symbolism is important especially to victims. Offering victims an
additional level of recognition though sentence uplifts that are subsequently unlikely to be
implemented suggests that the system is not working in the victim’s interests when it matters. If
it is justice that a victim wants, then in many cases a successful conviction may provide this.
However, if this is at the cost of recognizing and then rejecting the existence of the targeted or
hostile element there is a danger that the victim may well be left in a worse emotional state
exiting the criminal justice process than when they entered.
The Law Commission suggested that new sentencing approach guidance from the Sentencing
Council coupled with a more robust recording practice of enhanced sentencing cases would
address the provision’s shortcoming. If adopted, the Police National Computer record will begin
to show an offence prosecuted under the 2003 Act as being motivated by hostility, just as it
would show a conviction for an aggravated offence prosecuted under the 1998 Act. These
reforms have been proposed regardless of whether the 1998 Act is amended. However, this
requires keeping the strengthened sentence provision14.

5.2. Weakness
On the other hand, if the uplift were to be removed but the charge were to state that it was for a
‘hate crime’, the recognition of the harm faced by the victim would still be there thus the
symbolism would still be in place for those in whose favour it works. Better data would be
available for researchers and offenders would be more easily identified for programmers seeking
to address hostility and prejudice with a view to preventing reoffending.
Is enhanced sentencing is proving more reductive than productive in addressing hate crime?
Consultations are currently ongoing with a number of statutory, communities, voluntary and
academic organizations regarding the establishment of hate crime legislation. Therefore, the
country is in a strategic position to learn from comparable areas what works when it comes to
effective and impactful hate crime laws. Having those sends a symbolic message both that a
particular form of hostility exists in a society and those in positions of power tasked with
governance of that society are committed to addressing it. However, such laws will remain
merely symbolic if the desire or ability to fully implement them is absent.

14
United States Supreme Court Rejects Constitutional Challenge to California Three Strikes Law." Witkin Legal
Institute. Available online at
<www.witkin.com/pages/recent_dev_pages/current_pages/constitution_law_ewing.htm> (accessed August 26,
2003).
5.3. Recommendations
The Law Commission recognized that the provision for enhanced sentencing provides a
‘potentially powerful weapon in the fight against crime’. This has also been noted in the crime
literature. Prominent hate crime scholars such as Joanna Perry (2014), Mark Walters (2014), and
Paul Iganski (2014) who expand on Gregory Herek and others’ (1998) early research that the
emotional impact of hate crime ‘hurts’ victims more, illustrate that the enhanced sentencing
aspect of crime legislation symbolically addresses this additional layer of harm. However, the
limitations of the Criminal Justice System are vast and the resulting impact on victims can mean
that their engagement with it as a person affected by hate crime has the potential to do more
damage.

5.4. Conclusion
When revising the existing sentencing guidelines and developing new ones, the SC has so far
missed opportunities that lie in the science of how people make judgments and decisions, the
development and implementation of guidelines in other domains such as medicine, and the views
of sentencers who are expected to apply guidelines. All of these sources suggest that sentencing
guidelines could benefit from improvements such as reduced text, increased visual representation
of information, and greater structure, specification and coverage. Beyond the format and
structure of guidelines, consideration of their implementation and impact is important, and in the
information technology age, production of computerized guidelines is also becoming popular in
other domains. The clarity, specificity and structure required to develop such guidelines may
help improve the current sentencing guidelines. When adopting the suggestions for improving
sentencing guidelines provided above, it is clear that many gaps in the existing guidelines will be
identified and so these will also need to be filled. Attention must also be paid to ensuring that
variables are reliably and validly it is easier to assess if clearly specified guidelines are being
followed. Ultimately, improving the structure and format of guidelines can promote consistency
and agreement in sentencing. An improved structure can ensure the use of relevant factors, lessen
the impact of extraneous factors, prevent double or triple counting, and encourage adherence to
the guidelines. It can reduce reliance on post hoc reasons to justify departures and improve
monitoring of the guidelines’ impact. In due course, such changes could increase the
effectiveness of sentences and foster confidence in court decisions.15

15
See Stephen Elias and Susan Levinkind, Legal Research: How to Find & Understand The Law, 14th ed.
(Berkeley: Nolo, 2005), 22.
References

 Hofer, P.J.; Loeffler, C.; Blackwell, K. and Valentino, P (2004) - FIFTEEN YEARS OF
GUIDELINES SENTENCING: An Assessment of How Well the Federal Criminal
Justice System is Achieving the Goals of Sentencing Reform. U.S. Sentencing
Commission
 Branham, Lynn S. 2002. The Law of Sentencing, Corrections, and Prisoners' Rights in a
Nutshell. 6th ed. St. Paul, Minn.: West Group.
 Oliss, Philip. 1995. "Mandatory Minimum Sentencing: Discretion, the Safety Valve, and
the Sentencing Guidelines." University of Cincinnati Law Review 63.
 Parson, Elizabeth A. 1994. "Shifting the Balance of Power: Prosecutorial Discretion
Under the Federal Sentencing Guidelines." Valparaiso University Law Review 29.
 Reitz, Kevin R. 2002. "American Law Institute, Model Penal Code: Sentencing, Plan for
Revision." Buffalo Criminal Law Review 6.
 Spohn, Cassia C. 2002. How Do Judges Decide?: The Search for Fairness and Justice in
Punishment. Thousand Oaks, Calif.: Sage.
 "United States Supreme Court Rejects Constitutional Challenge to California Three
Strikes Law." Witkin Legal Institute. Available online at
<www.witkin.com/pages/recent_dev_pages/current_pages/constitution_law_ewing.h
tm> (accessed August 26, 2003).
 Wytsma, Laura A. 1995. "Punishment for 'Just Us'—A Constitutional Analysis of the
Crack Cocaine Sentencing Statutes." George Mason Law Review 3.
 Non-custodial sentencing falls sharply in England and Wales
Report reveals 24% decrease in number of community sentences over past 10 years,
compared with 18% rise in Scotland-guardian
 The McCarran-Ferguson Act.
 See Stephen Elias and Susan Levinkind, Legal Research: How to Find & Understand The
Law, 14th ed. (Berkeley: Nolo, 2005), 22.
 “Serious violent history” is defined as something more dangerous than a simple assault
or crime that does not typically lead to serious injury.
 National Research Council, The Growth of Incarceration in the United
States (Washington, DC: The National Academies Press, 2014, p. 347
 National Research Council, The Growth of Incarceration in the United
States (Washington, DC: The National Academies Press, 2014, p. 340
 National Research Council, The Growth of Incarceration in the United
States (Washington, DC: The National Academies Press, 2014, p. 339
 American Civil Liberties Union. 2011. Smart Reform is Possible: States Reducing
Incarceration Rates and Costs While Protecting Comunities. New York: American Civil
Liberties Union.
 Bureau of Justice Statistics. 2002. Recidivism of Prisoners Released in 1994.
Washington, DC: U.S. Department of Justice.
 Bureau of Justice Statistics. 2010. Prisoners in 2009. Washington, DC: U.S. Department
of Justice.Find this resource
 Fabelo, Tony. 2010. “Texas Justice Reinvestment: Be More Like Texas?” Justice
Research and Policy 12: 113-131.
 Frase, Richard S. 2009. “What Explains Persistent Racial Disproportionality in
Minnesota’s Prison and Jail Populations?” In Crime and Justice: A Review of Research,
ed. Michael Tonry, Vol. 38: 201–280.
 Gingrich, Newt, and Pat Nolan. 2011. “Prison Reform: A Smart Way for States to Save
Money and Lives.” The Washington Post, January 7, 2011.
 Petersilia, Joan. 2003. When Prisoners Come Home: Parole and Prisoner Reentry. New
York: Oxford University Press.
 Pew Center on the States. 2009. One in 31: The Long Reach of American Corrections.
Washington, DC: The Pew Charitable Trusts.
 The Economist. 2010. “Rough Justice: America Locks Up Too Many People, Some for
Acts That Should Not Even Be Criminal.” The Economist (July 24, 2010): 13.
 Thoreau, Henry David. 1854. Walden. 1971 ed., J. Lyndon Shanley, ed. Princeton:
Princeton University Press.
 Tonry, Michael. 2011. Punishing Race: A Continuing Dilemma. New York: Oxford
University Press.
 Vera Institute of Justice. 2010. The Continuing Fiscal Crisis in Correction: Setting a New
Course. New York: Vera Institute of Justice.
 (p. 20) Walmsey, Roy. 2009. World Prison Population List, 8th ed. London: International
Centre for Prison Studies.
 Ward, Mike. 2011. “As Prison Closes, Could Others Be Next?” American Statesman,
August 11, 2011.
 Yoder, Steve. 2010. “Crime and the Governors.” The Crime Report, October 27, 2010.
Available at
 Herek, G., Gillis, J., and Cogan, J. (1999) ‘Psychological Sequelae of Hate-Crime
Victimization among Lesbian, Gay, and Bisexual Adults’, Journal of Consulting and
Clinical Psychology, 67 (6):945-51.
 Iganski, P., Ainsworth, K, Geraghty, L., Lagou, S. and Patel, N. (2014) Understanding
how ‘hate’ hurts; a case study of working with offenders and potential offenders’, in N.
Chakraborti and J. Garland (Eds.) Responding to Hate Crime: The Case for Connecting
Policy and Research. Bristol: The Policy Press.
 Perry, J. (2014) ‘Evidencing the case for hate crime’, in N. Chakraborti and J. Garland
(Eds.) Responding to Hate Crime: The Case for Connecting Policy and Research. Bristol:
The Policy Press.
 Walters, M. A. (2014) ‘Restorative approaches to working with hate crime offenders’, in
N. Chakraborti and J. Garland (Eds.) Responding to Hate Crime: The Case for
Connecting Policy and Research. Bristol: The Policy Press.
 Julian V. Roberts et al., Public Attitudes to Sentencing Purposes and Sentencing Factors:
An Empirical Analysis, 11 CRIM. L. REV. 771, 771 (2009).
 Davis & Taylor-Vaisey, supra note 51, at 410. 104. Id. at 411. 12_DHAMI_BP (DO NOT
DELETE) 19/03/2013 5:56 PM No. 1 2013] SENTENCING GUIDELINES IN
ENGLAND AND WALES
Notes:

(1) . The prison rates reported for 2000 and 2009 do not correct for changes in the way that the
U.S. Department of Justice counts blacks, whites, and Hispanics, instituted in the mid-1990s
(Frase 2009; Tonry 2011). The changes had the effect of reducing the reported black and white
imprisonment rates because Hispanic prisoners were for the first time disaggregated from both
the black and white total

Magazine :

Why the US locks up prisoners for life

By Kate Dailey BBC News Magazine ,16 June 2013

Websites:

 http://www.statesman.com/news/texas-politics/as-prison-closes-could-others-be-next-
1730178.html
 http://www.thecrimereport.org/archive/crime-and-the-governors/.
 www.cliffsnotes.com/study-guides/criminal-justice/the-criminal-justice-system/the-
process-of-criminal-justice
 www.lexology.com/library/detail.aspx?g=7f1bb965-14f2-463a-a789-fdc01a39baea
 http://www.ussc.gov/15_year/chap1.pdf
 http://www.sentencing-guidelines.gov.uk/index.html
 30 Primary sources: Sentencing Advisory Panel and Sentencing Guidelines Council
website. At http://www.sentencing-guidelines.gov.uk/index.html