As the Council begins work on its first sentencing guideline topics, it must also decide what format these guidelines should take. Principal Research Officer Andrew Bell has been looking at styles from around the world to see how they operate.
This post provides a summary of three very different styles of guidelines from other jurisdictions: the United States of America, England and Wales, and the Republic of Ireland. We’re not going to go into too much detail here, but will provide links to the guideline bodies at the end of this article so you can read more if you’re interested.
United States Sentencing Commission (USSC) Guidelines
Covering federal crimes (those prosecuted by the federal government, rather than individual states), the United States Sentencing Commission guidelines fall at the prescriptive end of the guideline spectrum, providing very strict steps and ranges to be followed in sentencing. The USSC Guidelines are also some of the oldest formal common law sentencing guidelines, having been adopted for use in 1987 to address concerns regarding inconsistency in federal sentencing practice.
State level guidelines, which vary in nature, are in use in most US states and a strong culture of sentencing guidelines is present nationally, including an annual conference of sentencing commissions, which the Scottish Sentencing Council attended this year in Utah.
Federal sentencing guidelines are primarily based upon a sentencing table with two axes; the offence level and the criminal history level. Offence level is calculated based upon the crime committed. Offences are classified by seriousness and a starting level is given. Applicable adjustments to the offence level are then applied, such as amount defrauded or value of damage caused. There are 43 current offence levels - significantly fewer than the originally proposed 360 levels.
The calculation of offence level can be greatly affected by the crimes charged and the degree of seriousness at which those crimes are charged. Criminal history is calculated on a points based system, with prior convictions resulting in 1-3 points per conviction based on sentence length, with additional points for various aggravations. There are a total of six criminal history categories.
Once both offence level and criminal history level have been determined, the sentencing table is consulted and the federally recommended range is given in the relevant figure.
US Federal Sentencing Table (months in prison)
(US Sentencing Commission, 2015)
The zones detailed on the table indicate levels at which probation without incarceration or imprisonment (zone A), probation with intermittent incarceration (zone B) and probation with at least half the sentence served in prison (zone C) are available as options to the sentencing judge. Some adjustments may then be applied to the sentence range. Adjustments downwards are very limited, while upward adjustments may be based on fairly standard aggravating factors such as hate crimes or obstruction of justice.
Courts may impose sentences outside the recommended ranges if circumstances warrant. A number of these circumstances are included within the sentencing guidelines legislation, such as conduct resulting in a death, use of firearms and acting in the belief that the offence will prevent a greater harm.
England and Wales
Guidelines for sentencing in England and Wales are currently issued by the Sentencing Council and have been since 2010. Prior to that, guidelines were issued by the Sentencing Advisory Panel via the Court of Appeals (1998-2003) and the Sentencing Guidelines Council (2003-2010). Guidelines from both the Sentencing Guidelines Council and the Sentencing Council are currently in force. The English and Welsh guidelines fall somewhere in the middle of the prescriptive / descriptive spectrum, being less strict that the USSC guidelines while still providing more structure than the Republic of Ireland guidance discussed later.
Sentencing guidelines in England and Wales are discrete publications covering different offences or categories of offences, such as sexual offences or dangerous dog offences. Guidelines detail the aspects to be taken into consideration for specific offences, rather than providing a generic resource like the USSC guidelines. Guidelines can also cover broader topics such as youth offending.
Guidelines are required (where possible) to divide an offence into different categories of seriousness, taking into account: 1) the offender’s culpability, 2) harm caused, intended to be caused, or which might foreseeably have been caused, and 3) any other factors considered to be particularly relevant to the seriousness of the offence. This strongly informs the structure and implementation of the guidelines.
Guidelines tend to follow a nine step approach to determining a sentence. Each step has a description of the decisions to be taken, usually alongside non-exhaustive examples of factors. The nine steps are:
STEP ONE: Determine the offence category
The judge assesses the culpability of the offender and the harm caused according to offence specific criteria set down in the guideline. Some statutory aggravations may be taken into account in assessing culpability at this stage. This is the primary step in determining the likely sentence range.
STEP TWO: Starting Point and category range
A starting point and category range is identified according to the guidelines’ specification (usually provided in a grid format returning a higher starting point and a higher range for the greater harm and greater culpability). Upwards or downwards adjustments for specified aggravating and mitigating factors are to be taken into account at this stage
STEP THREE: Consider any factors which indicate a reduction, such as assistance to the prosecution
STEP FOUR: Reduction for guilty pleas
STEP FIVE: Dangerousness (not present in all guidelines)
The court may consider certain sentences (such as discretionary life sentences), usually in accordance with legislation on dangerous offenders.
STEP SIX: Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, the court will consider whether the total sentence is just and proportionate to the offending behaviour.
STEP SEVEN: Confiscation, compensation and ancillary orders
STEP EIGHT: Reasons
Courts are required to give reasons for and the effect of a sentence imposed and the consequences of breaching any order made.
STEP NINE: Consideration for time spent on remand in custody or bail
Courts must consider whether to give credit for time spent on remand in custody or bail in accordance with legislation.
Republic of Ireland
The Republic of Ireland does not have formal guidelines. However, the Irish Sentencing Committee has worked with the Judicial Researchers’ Office to produce a number of sentencing reports intended to provide judges with a resource covering the general principles and law, relevant case law and legislation, discussion of aggravating and mitigating factors, summaries and statistics on the sentences handed down and any relevant guidelines from other jurisdictions. These sentencing reports are very much at the descriptive end of the guideline spectrum, providing details on precedent, but setting no formal rules to follow.
Relevant cases are identified and analysed by court service officials. Once a comprehensive review of identified cases has been conducted, the sentences are assessed for severity. The cases are split into groups, usually at least three (most lenient, moderate or average, and severe). Case summaries are then presented in these groups.
The case summaries are designed to assist judges by collating previous sentences by severity. They are not designed for public use and only a limited number have been made publically available. The intent of the summaries is to provide judges with a reference by which they can assess whether or not their initial impressions of the case accord with previous sentences. The summaries are not prescriptive in any way and require knowledge of the sentencing process and relevant factors to be applied.