In August 2016, Council members Sheriff Principal Ian Abercrombie and myself along with Council Secretary Ondine Tennant attended the National Association of Sentencing Commissions’ (NASC) conference in Salt Lake City, Utah.
The conference, which has been held annually for 14 years, brings together a range of experts including prison officials, academics, charities, judges and policy makers.
By attending the 2016 conference, we were able to engage with a large number of sentencing bodies gathered in one place and build links with colleagues in other jurisdictions.
Many of the commissions are long established and were able to share valuable experience and expertise with us, which is particularly useful given that we are at any early stage in the Council’s development. The 2016 conference focused on the interaction between policy and sentencing.
About the NASC
The NASC is a non-profit organisation that shares information and expertise about sentencing between its members, and also seeks to educate the public about sentencing policies, guidelines and commissions in the United States. Around half of the US states (23) have a sentencing commission that is a member of the NASC.
The commissions differ in their remits and powers. Not all are statutory; some are advisory only. Some councils carry out their own research and/or policy work, and others are required by law to prepare sentencing guidelines.
The map available here shows the US states that are members of NASC and which states have sentencing guidelines.
The key points raised at the conference are noted below.
Sentencing in the US and Scotland is similar in many ways so we think that lessons can be learned from examining the approach taken in US jurisdictions. But there are important differences, such as plea bargaining, and the role of the prosecutor in the US. These differences need to be taken into account when comparing sentencing and the operation of guidelines between Scotland and the US.
In the US young people can find it difficult to leave the criminal justice system once they come into contact with it (this was referred to as the ‘school to prison pipeline’). However, the US criminalises certain types of activity that are not crimes in Scotland, such as truancy, which may contribute to this.
Contact with the criminal justice system in general, and custody in particular, may have the potential to result in a downward spiral for many, who then find it difficult to get their lives back on track.
The public view of the right sentence for a repeat offender seems to be less punitive than might have been expected, according to research carried out in the US by the Robina Institute.
There is no one approach to sentencing and no universal model for sentencing bodies at state level. Some US research supports the view that guidelines that judges must follow (mandatory guidelines) have made sentences more severe and taken the focus away from the individual circumstances of particular offenders. On the other hand, some US experts say that guidelines that are not mandatory may operate unfairly and lack consistency.
No data or inaccurate data is an issue. Many US sentencing councils have problems in monitoring the impact of their sentencing policies because of this. Agencies don’t find it easy to share information and it’s particularly hard to follow up cases when information changes, for example when charges are dropped. Sentencing councils should try and make sure that they will be able to collect the data they need and test its reliability when they are introducing new sentencing guidelines.
There is an increasing focus on developing policies with a strong evidence base.
Sentencing councils are more likely to be successful when they are:
- independent from government
- have the right mix of members (judges, lawyers, lay people and academics)
- adequately funded
- transparent – letting the public know how they do their work & providing information on sentencing
- have integrity – this includes members and staff and the information they provide
- use initiative.
The NASC conference covered a wide variety of topics and these include some issues that relate directly to the Council’s ongoing development and to its work programme.
For example, the sentencing of young people, considering criminal history and re-offending, and the approach taken in increasing public understanding of sentencing are all important to the Council’s ongoing work.
The issues about data collection and the lessons learned will be useful in informing the Council’s research programme and its development of impact assessments for guidelines.
The critical factors for the success of sentencing bodies identified at the Conference will be helpful for the Council’s future development.