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Penal ideology, sentencing and the legitimacy of trial justice

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Abstract

The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the ‘rule of law’. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of ‘justice’ in sociological accounts of the ‘reality’ of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial‘s ‘relevant audience’. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived ‘legitimacy’ of international trial justice.

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Notes

  1. Specifically, the United Nations International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and the International Criminal Court (ICC).

  2. The legitimacy of trial justice is a feature common to all legal settings that raises similar problems. However, in order to understand what it signifies in any legal setting requires profound and theoretically informed contextual analysis to permit the discourse to be conducted from a position of accuracy in terms of its historical and cultural context. The only generalised assumption that may be made about the nature of legitimacy is that its understanding in any context depends upon comprehending the complex relationship between moral and social experience, whether that perspective is individual or collective.

    For legitimacy to be accorded to trial justice depends upon it being perceived as reflecting the ‘appropriate’ balance between the power holders and its recipients. The extent to which constitutional legitimacy can be derived purely from a ‘rule of law’ normative framework has been debated extensively by legal theorists ([1, 16, 49]). However, the important point for this paper is a broad acknowledgment that a sociological perspective is necessary to discover the extent to which moral consensus attaches to law and legal process. Hence, enhancing the legitimacy of sentencing may involve a greater engagement with individuals and communities that do not regard their interests as either represented or served by current manifestations of trial justice

  3. For the purposes of this paper the noun ‘legitimacy’ refers to the moral attachment of individuals and social groups to the penal ideologies, processes and outcomes of criminal trials The paper makes an analytical distinction between the notion of ‘Punishment’ as being concerned with debates about values, justifications and norms, and ‘Sentencing’ as referring to the practical everyday processes of discretionary decision-making. The term ‘governance’ refers to the degree of moral legitimacy attached to the criminal justice system and how it exercises its functions.

  4. This expression is employed here for the reason that there is no settled definition of who, or what, the ‘relevant audience’ might include. Within the context of a domestic adversarial trial, it may be taken to consist of the trial participants and perhaps the immediate ‘community’ where the crime occurred. However, for international criminal trials, the ‘relevant audience’ could include a wide range of secondary victims, including members of particular communities and social groups within a post-conflict state, or the so-called ‘global community’ on whose behalf the court purports to act, as is the case with the ICC.

  5. The expression ‘normative’ is used here to signify how the social reality of sentencing impacts on perceptions and conduct.

  6. ‘Democracy’ itself may be perceived as hegemonic by some moral codes because it subverts religious orthodoxy.

  7. For example, Prosecutor v Kambanda (Case No. ICTR-97-23-S), Judgement and Sentence, 4 September 1998.

  8. Moves in the right direction have already been made by adopting a more ‘inquisitorial’ approach to the development of international criminal procedure by the ad hoc tribunals and the ICC. There is now much greater emphasis on judicial case management and status conferences, as well as a growing trend towards reliance on written rather than oral testimony (see, for example, [3, 37]).

  9. There is congruence here with Duff’s [10] communicative theory of punishment. Duff believes that reconciliation is brought about through the process of punishment which induces repentance and aims to alter the moral sentiments of the offender; punishment communicates to the offender the moral wrongfulness of his conduct.

  10. Prosecutor v Momir Nikolic (Case No. IT-02-60/1-S), Trial Chamber, Sentencing Judgement, 2 December 2003.

  11. Para 51. Rule 62 bis of the ICTY RPE provides: ‘If an accused pleads guilty … or requests to change his or her plea to guilty and the Trial Chamber is satisfied that (i) the guilty plea has been made voluntarily (ii) the guilty plea is informed (iii) the guilty plea is not equivocal and (iv) there is a sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case, the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.’

  12. However, it is worth remembering that the extent to which individual participants, lay or professional, can manipulate the system depends as much on its bureaucratic and administrative goals as it does on the ideology that informs its normative framework [33]. The need to identify both the system and sub-system goals of the trial is as important as an appreciation of the holistic nature of the criminal process and the points of tension and synthesis existing between its component parts [28].

  13. Findlay [19] points out that Chinese communitarian traditions are not reflected in a complementary communist ideology

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  1. Nottingham Trent University, Nottingham, UK

    Ralph Henham

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Henham, R. Penal ideology, sentencing and the legitimacy of trial justice. Crime Law Soc Change 57, 77–98 (2012). https://doi.org/10.1007/s10611-011-9342-1

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