Sentencing Decision-Making: Unravelling the Enigma

Abstract

A huge volume of scholarship and reform work has been dedicated to the ‘problem’ of sentencing decision-making. Yet it remains an enigma. This chapter argues that this is because the field is dominated by an impatience to prescribe either a solution about how it should be reformed, or, to deny the need for reform. However, this impatience to proclaim the normative solution obstructs a deeper understanding of the reality of daily sentencing work. Sentencing scholarship and policy-thinking is dominated by assumptions operating in the shadow of legal formalism and enveloped within a wider paradigm of autonomous individualism. Instead, reconceptualising sentencing as a social process enables a deeper conceptualisation of decision-making, so offering a more solid basis for possible reform. Three key qualities reveal sentencing to be a social process. First, sentencing work is inescapably interpretive. Second, sentencing decision-making is, in reality, not a singular moment determined alone by the individual judge, but a process to which a range of practitioners contribute collaboratively. Third, the sentencing process is generated by performance of roles and ideals.