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Introduction
Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils. Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century.
In 1972 Judge Marvin Frankel of the US District Court for the Southern District of New York published a book -- Criminal Sentences: Law Without OrderFootnote 1 which sparked a revolution in sentencing in the US that ultimately spread around the world. His brief book provided a trenchant critique of the highly discretionary approach to sentencing which then prevailed in the US and had resulted in widespread unjustified disparity, an absence of proportionality, and racial injustice in sentencing outcomes. He proposed three major solutions to what he described as essentially a “lawless” process: (i) a permanent independent commission on sentencing; (ii) an articulation of policies or guidelinesFootnote 2 for judges to follow, and (iii) meaningful appellate review. The issues of sentencing guidance, sentencing guidelines and sentencing commissions or councilsFootnote 3 have been extensively debated in the literature since the publication of Frankel’s book. It is seldom possible to identify with accuracy the origin of an institution or concept which is then adopted, adapted, or rejected by jurisdictions beyond its original scope and geographic boundaries. How has this quiet revolution come about? How and why have the concepts of guidelines and commissions spread so rapidly?
This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978. From that date until the present nearly 50 commissions have been proposed, established, disestablished or considered. Much of the literature to date has focused not on the nature of the commissions themselves, but on the forms of their sentencing guidelines.Footnote 4 These take two differing approaches, one primarily numerical, the prevailing model in the US, and one primarily narrative, the prevailing model in England and Wales and most other jurisdictions.
We explore the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions. This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions. The study of policy transfer or diffusion also requires an analysis of the processes of indigenisation or mutation across jurisdictions.Footnote 5
Overview
Part II of this article examines the nature of sentencing commissions or councils and the very different US and UK models which have inspired other jurisdictions. Part III discusses what is meant by policy transfer or diffusion and the various frameworks used to describe and explain the process. Part IV examines why transfers may occur, what is transferred, the sequence of transfer, who is involved in policy transfer, its mechanisms and the conditions for transfer. Part V examines jurisdictions where they were considered but rejected, Part VI notes policy transfer failures and Part VII provides a conclusion to the article.
Innovation: Sentencing Commissions or Councils
Sentencing commissions, sentencing guidelines commissions, sentencing councils or sentencing advisory councils are bodies established either informally or by statute that sit between the legislature, the executive and the judiciary with a range of different functions. Although Frankel envisioned that the primary goal of a commission would be creating and monitoring sentencing guidelines, they may have additional functions (such as advising governments, collecting and analysing statistics, conducting research, consulting with the public, gauging public opinion, estimating the cost or effectiveness of sentences and analysing the resource impact of their guidelines or policies). Commissions vary widely in terms of their legal status, authorising environment, membership, independence, resourcing and reporting mechanismsFootnote 6
Two Competing Models
The principal models of sentencing guidelines emerged first in the US and then England and Wales although these two countries have taken different courses. Each has provided a model for jurisdictions that considering introducing greater structure.
Two aspects should be distinguished when discussing the models adopted by the various jurisdictions. The first is the nature and composition of a commission or council; the second relates to its guidance or guidelines function. The two elements are linked: a sentencing commission has the expertise and authority to issue guidelines for courts and many jurisdictions have created or are creating both commissions and guidelines. While they complement each other, however, the two reforms can also make an independent contribution to more principled and consistent sentencing. Some apex courts have issued guidelines for lower courts without creating an independent commission. Others have instituted a sentencing commission without the power to issue guidelines, as is the case with such bodies in the Australian states of New South Wales, Victoria, Queensland and Tasmania.
United States
Frankel’s concerns reflected long standing criticisms of sentencing as it had evolved in the US through to the 1960s. These included unjustifiable disparity in sentencing outcomes which was a product of indeterminate sentencing regime founded on the ideals of rehabilitation; the granting of extensive dispositive powers to parole boards rather than the courts; the very high maximum penalties which increased the potential for major disparities; the absence of appellate review of sentences; the wide-spread view that imprisonment was the only real “punishment’; and deeply-embedded systemic and case-level racism.Footnote 7 The “unbridled” discretion given to the courts resulted in disparities between individual judges, often based on race, gender or geography.Footnote 8 This resulted in calls for a determinate sentencing system to replace the existing unstructured and highly discretionary regime with a set of rational and proportionate rules and sanctions and for explicit statements about the justifications for sentencing, as well as reflecting a desire to control prison overcrowding.Footnote 9 Other reasons included the desire for more lenient sentences by liberals and more severe sentences by conservatives as well as more effective crime control, the limited evidence that corrections programs reduced recidivism and the desire for more legal accountability of decision-makers.Footnote 10
It took five years from Frankel’s book to the establishment of the first commission in Minnesota in 1978 after which a sentencing commission became “the most widely adopted vehicle for sentencing reform”.Footnote 11 The Minnesota commission subsequently provided a model for other jurisdictions.Footnote 12 Between 1978 and 2004 around 36 similar bodies were established in the US, mostly in the first decade and then fewer in each subsequent decade.Footnote 13
United Kingdom
Concerns about consistency between sentencers and appropriate sentencing standards date back to the late nineteenth century in the United Kingdom. Unlike the US, the UK had never embraced a wholly or primarily indeterminate sentencing system. Sentencing was always principally a judicial task, though unjustifiable disparity between sentencers had long been a major concern, as it has been in most jurisdictions that have considered the creation of sentencing commissions. Responses to disparity evolved slowly from the mid-1970s when the Court of Appeal first started handing down guideline judgments.Footnote 14
The common law model of sentencing differed from the US. It involves the legislature prescribing maximum penaltiesFootnote 15 and the range of sanctions that is available to judges, leaving the courts with wide discretion to determine the appropriate sentence in each individual case. In some jurisdictions, sentencing legislation sets out the aims of sentencing, sentencing principles and relevant and irrelevant factors that must, may or should not be taken into account. A relatively sophisticated appellate system provides principles and precedents for lower courts to follow in sentencing, noting that these constraints usually still allow extensive judicial discretion.Footnote 16 In Australia, a methodology known as “instinctive synthesis” privileges individualism over consistency, holding that consistency of approach is to be preferred to consistency of outcome. There is generally little or no consideration of the costs and benefits of the various sentencing options.Footnote 17
It was not until 1982 that a leading sentencing scholar, Andrew Ashworth, called for the creation of a sentencing council.Footnote 18 It then took 20 years for the first such body, the Sentencing Advisory Panel (SAP), to be established in 2003, in a very different form from those in the US. Whereas most of the U.S. commissions developed and monitored sentencing guidelines in their own right, the SAP’s function was to provide advice in the form of draft guidelines to the Court of Appeal, which could choose whether to adopt them or not. The Panel evolved to become the Sentencing Guidelines Council, and the two co-existed until the current Sentencing Council was created in 2010. The new Council assumed the functions of its predecessors and also a number of other statutory duties.Footnote 19
Beyond the Progenitors
By the early part of the twenty-first century jurisdictions outside the US and the UK facing similar problems had the experience of those jurisdictions on which to draw in deciding whether to establish such bodies, the form they would take and the types, if any, of guidance they would adopt. The dominant US paradigm, represented in its extreme (and atypical) form by the rigid numerical guidelines created by the federal US Federal Sentencing Commission, provided a contrast to the more procedural guidelines in the UK. The latter were generally regarded as less rigid or constrictive of judicial discretion.
The two broad models of commissions proved attractive, primarily to common law jurisdictions. They were, less appealing, or outright unappealing, to the civil law systems of Europe. Two new bodies were established in 2003, one in Scotland, where the Sentencing Commission for Scotland had a limited lifespan and was dissolved in 2006 but re-established in 2015 and one in New South Wales, the government of which noted that while it was the first of its kind in Australia, it was based on similar models in the United Kingdom and North America.Footnote 20 Similar bodies were subsequently established in the Australian states of Victoria in 2004, Queensland and Tasmania in 2010Footnote 21 and South Australia in 2012. South Korea, a non-common law jurisdiction, established a Sentencing Commission in 2006 which has now issued, guidelines for most common offences. Singapore created the Sentencing Council of Singapore in 2013, North Macedonia created the Commission on Harmonising Penal Policies in 2015 and Ireland established the Sentencing Guidelines and Information Committee of Ireland in 2019.Footnote 22
The Policy Transfer Process
How did Frankel’s idea of an independent sentencing commission take hold in the US and spread to other parts of the world? How were his original ideas transported, transplanted, transmuted or terminated and why were they rejected in some jurisdictions?
Like the concept of a sentencing commission, the field of policy transfer has evolved over recent years and has spawned an extensive literature although not sufficiently in the field of crime and crime control policy.Footnote 23 The modern study of the diffusion of innovations is attributed to an extensively cited article by Walker in 1969.Footnote 24 Walker was primarily interested in the diffusion or adoption of new programs, rather than their invention or creation. His primary concern was to explain why and how quickly some states adopted innovations more readily than other. In 1996, Dolowitz and Marsh developed the concept of policy transfer, defining it as a “process in which knowledge about policies, administrative arrangements, institutions etc. in one time and/or place is used in the development of policies, administrative arrangements and institutions in another time and/or place”.Footnote 25 They argued that transfers can take place across time, within and across jurisdictions by various means, either directly or indirectly, in full or in part, and sometimes unsuccessfully. It can be voluntary, which occurs when the receiving party freely chooses to adopt the policy, or coercive, where one government or institution pushes or forces another to adopt a particular policy.Footnote 26 Stone has provided a useful summary of the main approaches to policy transfer or diffusion from which the following brief discussion draws.Footnote 27
Ideals or objectives can be transferred, though the means by which they are achieved can differ So can ideas, laws, institutions or organisations and they may be transferred through the work of commissions, task forces, transfers of personnel, consultants, visiting experts and epistemic communities. The globalization of economies and the speed of communication through the Internet or personally through rapid air travel has meant that ideas or policies can be transmitted or received with an ease and speed that was not possible even 50 years ago.Footnote 28As Shipan and Volden observe:
In today’s interconnected world, understanding policy diffusion is crucial to understanding policy advocacy and policy change more broadly.Footnote 29
‘Diffusion” is another approach to understanding how innovation spreads. It has been defined as “the process by which an innovation is communicated through certain channels over time among members of a social system”.Footnote 30 This approach sees policy changes occurring through osmosis or contagion rather than conscious choice, and can occur through networks of communication, geographical proximity, pioneering jurisdictions or pressure from other governments.Footnote 31 “Convergence” approaches suggest that transfer is largely the result of structural forces such as globalization or industrialization rather than of individual or organization agency.Footnote 32 Similar pressures may lead to similar innovations or outcomes without the need to borrow ideas from other jurisdictions.Footnote 33 “Translation” approaches build on the theories of policy transfer but on the way that ideas are interpreted, transformed or adapted in particular political contexts rather than the original innovation.Footnote 34 Braithwaite has preferred the term “modelling” to describe “action(s) that constitute a process of displaying, symbolically interpreting and copying conceptions of action.’Footnote 35 Models are symbolically interpreted by those who “invent”, “adapt” and “copy” them.Footnote 36
Policy transfer can also be regarded as a form of policy learning, with the focus here on how innovations in another jurisdiction are interpreted, adopted, adapted or rejected.Footnote 37 From this perspective, ideas from elsewhere can change the fundamental beliefs of decision-makers who might then be more receptive to change, epistemic communities can create or develop knowledge that can influence policy makers and national and international networks can create or adopt new norms or approaches to common problems.
Studies in policy transfer pay considerable attention to the role of “policy entrepreneurs”, namely people or organisations who spread the policy ideas, or the theoretical, conceptual or intellectual underpinnings of policies which ultimately influence political action in the form of new laws or the establishment of new institutions. Policy entrepreneurs may be thinktanks, universities, academics, non-government agencies or philanthropic foundations who ‘use their intellectual authority or market expertise to reinforce and legitimate certain forms of policy or normative standards as “best practice””.Footnote 38 In the development of sentencing commissions, the process of “knowledge transfer” rather than “policy transfer” through the role of a number of scholars has been a significant factor in the diffusion of this innovation, despite their non-governmental status.
Any study of the diffusion of sentencing commission requires an exploration of the conditions that make possible, or inhibit, the diffusion of policies and practices and the diverse histories and institutional, jurisprudential and cultural contexts within which transfers occur.Footnote 39 As Newburn notes, we need recognise that:
… in drawing our attention to the linkages between the universal and the particular, the global and the local, it reminds us of the importance of exploring comparative developments in all their messy variety, for it is here that we have the best chance of finding nuanced explanations of contemporary trends.Footnote 40
This study of the growing number of sentencing commissions, and their varying forms and practices, provides an example of the way that policy experiments can be undertaken. Whether it be within a federal system such as the United States or Australia, or between disparate jurisdictions, each commission provides a case study of the complex relationships between emulation and innovation.Footnote 41
Adaptation: A Policy Transfer Framework
Dolowitz and Marsh developed a framework for analyzing policy transfer which can assist an understanding of the diffusion of sentencing commissions in the US and beyond.
Why transfer? Justifications for Greater Guidance
One of the main reasons for voluntary policy transfer is a degree of dissatisfaction with the existing situation, leading to a search for solutions which have not been, or cannot be found internally.Footnote 42 Every sentencing system faces a similar set of issues which can be described as discretion (who has the power to make dispositive decisions and how much leeway do they have making that decision?); disparity (how much variation is there in the decision-making and is the variation justifiable or warranted, or not?); desert (is there some proportionality between the crime and the sanction?); severity (what amount of punishment is deserved for particular crimes?) and veracity (what is the relationship between the sentence imposed and the sentence actually served?). What differs between jurisdictions is their response to these issues.
As noted above, there were a number of reasons for the establishment of sentencing commissions in the US and elsewhere. However, factors that influenced the creation of sentencing commissions was a public loss of confidence in criminal justice and in the rehabilitative ideal, the development of a highly charged political discourse around crime and punishment, a delegitimization of the judiciary and “experts” as well as the increasing influence of the media.Footnote 43 This crisis in confidence and the accompanying rise of penal populism saw demands to redress the “democratic deficit” through a greater involvement of the public in the development of criminal justice policy.Footnote 44 More specifically, there were a number of reasons, or aspirations, that provided both the specific impetus and the “intellectual and rhetorical resources that calls for reform may draw upon”.Footnote 45
Unjustifiable disparity
One of Frankel’s major concerns was the amount and degree of unjustifiable disparity in sentencing outcomes between judicial officers. In the US, this was primarily due to the nature of the sentencing regime in place, namely an indeterminate sentencing structure allowing for a wide range of outcomes subject only to the statutory maximum penalty, but which also granted wide powers to parole boards to decide when an offender could be released.Footnote 46 However, this problem was not confined to the US. In many common law jurisdictions, evidence of unjustified disparity was mounting, particularly in respect of inter-judge disparity. This held even though, unlike the US, the UK and other common law jurisdictions had never embraced a wholly or primarily indeterminate sentencing system. Unjustifiable disparities have been cited as specific concerns in jurisdictions considering the establishment of sentencing commissions or guidelines.Footnote 47
Lack of a rational and proportionate set of rules to determine the relationship between crime and punishment
A lack of sufficient guidance on sentence has been cited as a specific concern in jurisdictions considering the establishment of sentencing commissions or guidelines.Footnote 48
Cost and resource management
In the US, the problem of the cost of longer prison sentences and the concomitant problem of prison overcrowding was putting pressure on government budgets, resulting in a desire to gain greater control of resource use.Footnote 49 Barkow and O’Neil’s study of the development of sentencing commissions in the US found that a concern with the costs of longer sentences and imprisonment played a significant role in the establishment of sentencing commissions and guidelines.Footnote 50 However, prison populations were also increasing in other parts of the world.Footnote 51
Excessive Leniency
Sentencing reform was seen by political conservatives as a way of setting and enforcing more severe sentencing standards.Footnote 52 In New South Wales, the establishment of the second council outside the US was part of a package of sentencing reforms responding to public disquiet over what were perceived to be inadequate sentence. One of its major tasks was to establish a scheme of statutory standard minimum standards for a number of serious offences.Footnote 53 Unduly lenient sentences have been cited as specific concerns in jurisdictions considering the establishment of sentencing commissions or guidelines.Footnote 54
Desire for specialized knowledge and expertise
Many jurisdictions were of the view that the creation of an independent body with a broad spectrum of backgrounds and expertise could develop specialised knowledge about sentencing and corrections. As a consequence, they had the means to create better long-term policies than political bodies such as legislatures or public sector agencies which might not be able to publish independent and possibly critical reports or statistics. At the same time, however, some took the view that sentencing need not or should not be or should not be exclusively in the hands of “experts”.Footnote 55 In many jurisdictions there was a dearth of adequate information, both official and unofficial, about the operation of the sentencing system. Policy was not regarded as being evidence-based and one of the functions of many of the sentencing commissions was to gather, create, analyze and disseminate sentencing statistics and trends and develop or inform policy positions.
Legitimation, blame shifting and policy buffers
Hutton has argued that sentencing commissions may have functions that include: legitimation (the decisions of a broader body, following an inclusive consultative process are more likely to be accepted than unilateralist, secretive, executive decisions); blame shifting and credit claiming (if it fails it is the fault of the council/commission; if it succeeds, it shows the wisdom of the government);Footnote 56 and acting as a “policy buffer”. In some jurisdictions there is a desire to create a body interposing between what is perceived as a punitive populace and a government fearful of being regarded as “soft on crime”.
There is often continuing public pressure on governments to increase maximum penalties, introduce mandatory and minimum sentences, mandatory and presumptive non-parole periods, three-strikes and similar laws and to curtail judicial and parole discretion.Footnote 57 In Australia, it has been argued that sentencing councils were created “with a long-term function of defusing political crises and of attempting to balance the various interests of the judiciary, the public, politicians and the media”.Footnote 58 Sentencing commissions are seen to be able to provide a mechanism through which politically sensitive decisions could be delayed and through which a public dialogue could be conducted by a body seen to be independent of government.Footnote 59
Community involvement and the democratic deficit
In 2005, Ashworth and others argued that the existing system of developing sentencing policy had produced a “democratic deficit”. This could be remedied by the establishment of bodies able to broaden the range of perspectives, expertise and experience contributing to sentencing policy.Footnote 60 In Australia, one of reasons for the establishment of sentencing councils was the desire of governments to support community input into sentencing policy, partly in order to redress the democratic deficit. In Victoria, one of the terms of reference of the inquiry into sentencing which led to the establishment of the Sentencing Advisory Councils was “Whether any mechanism could be adopted to more adequately incorporate community views into the sentencing process”.Footnote 61 The involvement of the public was seen as one of the means by which public acceptance of the sentencing process could be strengthened and public confidence maintained or increased. One of the principal justifications for the establishment of the Victorian Sentencing Advisory Council, as stated by the state’s then Attorney-General, was that it would “allow properly ascertained and informed public opinion to be taken into account in the criminal justice system on a permanent and formal basis.”.Footnote 62 The involvement of the public in sentencing commissions has been seen as a means to incorporate diverse voices in sentencing policy, both through their constitutions and their consultative processes, with a view not only to bridging the gap between the courts, governments and the community but also to enhancing the legitimacy of the criminal justice system.Footnote 63
Promotion of public confidence in sentencing
Although the concept of “public confidence” is an amorphous one, the need to build “trust and confidence” in sentencing has been one of the reasons for the establishment of sentencing councils, particular in Australia. Lack of confidence in the courts has been attributed to
… the perceived leniency of the courts, inconsistent sentences, a belief that judges were out of touch with the community, a lack of understanding of how judges come to their decisions, of the factors they take into account, the weight given to those factors, the accessibility of sentencing decisions and their comprehensibility.Footnote 64
The proposed, but never implemented New Zealand Sentencing Council had as one of its aims to “inform and educate the public about sentencing and parole policies and decision-making, with a view to promoting public confidence in the criminal system.’Footnote 65 One of the means to address lack of community confidence arising from a paucity of accurate information is to remedy the gap via a body regarded as independent, credible and authoritative.Footnote 66 Sentencing commissions are required or are well placed to provide information to the community, the courts and to governments about sentencing, law, the sentencing process, the operation of guidelines and sentencing practices and can contribute to increasing community confidence through correcting myths and misconceptions.Footnote 67
What is transferred?
Dolowitz and Marsh write that:
While almost anything can be transferred from one political system to another, depending upon the issue or situation involved, we identify eight different categories: policy goals, policy content, policy instruments, policy programs, institutions, ideologies, ideas and attitudes and negative lessons.Footnote 68
They also note that policy transfer is not an “all or nothing approach” and that there are four different gradations or degrees of transfer.Footnote 69 Compared with with studies, for example, of policing, community corrections, justice reinvestment, day fines, drug courts, restorative justice, prison privatisation, plea negotiations and others, our focus in this article is primarily on the institution of a sentencing commission, with a secondary consideration of the guidelines they create or the guidance that they can provide.
Frankel’s original conception was for a permanent, expert independent national commission, tentatively titled as a Commission for Sentencing Studies and Law Revision, with responsibility for “(1) the study of sentencing, corrections and parole; (2) the formulation of laws and rules to which the results of such study may lead; and (3) the actual enactment of rules subject to congressional veto”.Footnote 70 Membership would include lawyers, judges, criminologists, penologists, sociologists, psychologists and former or present prison inmates.
As Walker observed, one of the most fundamental policy issues is whether to initiate a program in the first place.Footnote 71 The first sentencing commission established was the Minnesota Sentencing Guidelines Commission, which largely conformed to Frankel’s vision. It was, and still is, an independent body with power to create self-enforcing guidelines. Its current membership of eleven members includes three judges, a public defender, a prosecutor, the commissioner of corrections, a peace officer, a probation or parole officer and three members of the public, one of whom must be a felony crime victim. It is a statutory body which not only issues guidelines but serves as a clearing house and information center on sentencing practice and provides training on the guidelines.Footnote 72
Its major purposes were to: limit judicial and parole discretion; emphasize the role of retribution, deterrence and incapacitation in the imposition of prison sentences;Footnote 73 overcrowding in prisons; and constrain/monitor the use of correctional resources.
‘The Minnesota guideline legislation served as model legislation for other jurisdictions and its commission an archetype for thoughtful and cautious sentencing reform.’Footnote 74
Commissions
Commissions have taken on many forms since the Minnesota Commission was established. They vary along a number of dimensions:Footnote 75
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Legal status: some commissions are established by statute, some are created under the auspices of courts and some are informal, existing only through a memorandum of understanding between the commission or council and the government.
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Methods of appointment: these range from the President of the US, Governors or Governors-in-Council,Footnote 76 members appointed by particular stakeholders such as congressional leaders, ministers for justice and Chief Justices.Footnote 77
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Membership: commissions vary in size from 7Footnote 78 to 31Footnote 79 and members include serving or retired judicial officers, legislators, and people with backgrounds in law enforcement, corrections, prosecution, defence, court services, the general community lived experience as victims or in matters associated with victims of crime, Indigenous background or experience in Indigenous affairs, and academics. In many commissions judicial members are in the majority, particularly those outside the US.
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Functions: the primary function of most commissions is to produce sentencing guidelines. However, many have other functions such as publishing resource assessments with respect to their guidelines, estimating the costs and effectiveness of sentences, monitoring their operation and effect, training officials and others in the application of guidelines, conducting research, publishing statistics in relation to sentencing, gauging public opinion, advising governments and developing sentencing policy.Footnote 80 In Australia, due to the strong judicial culture that privileges individualism over consistency under an approach described as an “instinctive synthesis”, none of its sentencing councils issues guidelines, although some are empowered to provide advice to their appellate courts on guideline judgments.
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How guidelines become law: in some jurisdictions, sentencing guidelines become effective on their issue by a commission. In others, the legislature either has to ratify them or can veto them, they become law on publication in an official Gazette or must be approved by an appellate court.Footnote 81
Guidelines
Sentencing guidance, or guidelines vary from the very prescriptive and rigid versions, such as the US Sentencing Commission guidelines, to the “step-by-step” guidelines issued by the Sentencing Council of England and Wales and guidelines authorities in other jurisdictions. Guidance or guidelines can be provided without the assistance of a sentencing council and there are a number of jurisdictions that have guidelines created by bodies such as legislatures and courts.Footnote 82 These two contrasting models, the grid-based and the less rigid approach, provide the distinctive paradigms for policy learnings in those jurisdictions which have looked to either the US or the UK for inspiration. An additional distinction is whether guidance for all offences is provided within grids, or whether the guidelines are offence-specific. The grid-based approach is favoured across the US, while all other jurisdictions employ offence-specific guidelines.
From where to where?
By the early 2000s the two models had become well-known around the world and jurisdictions which were considering establishing commissions or councils were able to consider and evaluate them, particularly in relation to the form that sentencing guidelines should take rather than the commission model itself. Almost all jurisdictions which subsequently established commissions adopted a modified UK model. Some referred explicitly to the UK model, for example Singapore,Footnote 83 Uganda;Footnote 84 Ireland, while the Tasmanian Sentencing Advisory Council drew inspiration from its near neighbor, Victoria (Tasmania Law Reform Institute 2008:49) as did the Queensland Sentencing Advisory Council. Many of the jurisdictions which considered and then rejected the idea of a commission or guidelines did so in part at least out of antipathy towards the US models. This was particularly true of the Federal guidelines model which, although unrepresentative of most US commissions, became the icon of undesirable sentencing guideline systems.
Who is involved in policy transfer and how is it transferred?
Ideas do not self-execute: they need human agency. Dolowitz and Marsh identified nine categories of actors involved in the policy transfer process.Footnote 85 Ultimately, however, legislatures are responsible for the statutory establishment of a sentencing commission. Where that is the case, they will be influenced and/or supported, in turn, by the bureaucrats or civil servants who prepare the documentation in the form of briefings or draft legislation that precede enactment. Where commissions are established by or in the judicial system, the judiciary will play a major role.
Task forces, committees and inquiries
Many jurisdictions contemplating the establishment of a sentencing commission took a cautious and considered approach, often establishing some form of committee or commission of inquiry comprised of judicial officers, public servants and academics to seek information on guidelines, commissions and good practices in sentencing from other jurisdictions. In no jurisdiction was the decision to establish a commission a swift or “knee jerk” policy reaction to an emerging problem.
The origins of the Minnesota commission lie in a 1975 bill in the Minnesota Senate which aimed to introduce determinacy through legislatively fixed sentences and the abolition of parole.Footnote 86 In 1977, a later legislature introduced a new bill that proposed a sentencing guidelines commission comprised of five judge who would design guidelines to be approved by the supreme court.Footnote 87 The bill’s proposer drew his ideas from several sources including from the Albany Criminal Justice Research Center which had developed an approach to sentencing guidelines.Footnote 88 After much negotiation between the two houses, a bill that created the Minnesota Sentencing Guidelines Commission was approved almost unanimously in April 1978.Footnote 89
In 1976 a feasibility study on sentencing guidelines sponsored by the National Institute of Law Enforcement and Criminal Justice was published in FloridaFootnote 90 and in 1977 a Chief Justice’s committee to examine the extent and causes of sentence disparity and to explore the variety of sentencing alternatives available-judicial, legislative, and administrative-to reduce unreasonable sentence variation” was established.Footnote 91 In Pennsylvania, sentencing reform initiatives also started in 1976 in its legislature where they were fiercely debated and considered by a Joint Council on the Criminal Justice System Sentencing Task Force which recommended a statewide sentencing guidelines commission which, after much legislative debate was established in 1978.Footnote 92 In 1979, the Michigan Felony Sentencing Project produced a report on sentencing policy which laid the foundations for the Michigan Sentencing Guidelines of 1984.Footnote 93 Through the 1980s and 1990s, commissions were established in Delaware (1983),Footnote 94 Oklahoma (1989),Footnote 95 Massachusetts (1990),Footnote 96 North Carolina (1990),Footnote 97 Ohio (1993),Footnote 98 the District of Columbia (1997)Footnote 99 and Alabama (1999).Footnote 100 In 2009, the Illinois - The Criminal Law Edit, Alignment and Reform Commission developed the concept for the Sentencing Policy Advisory Council.Footnote 101
In Canada, the Canadian Sentencing Commission recommended the establishment of a permanent sentencing commission (Canadian Sentencing Commission 1987)Footnote 102 although ultimately, a sentencing commission was never created.Footnote 103 There has been no further movement towards creation of a commission or adoption of guidelines. Scotland convened a judicially-led expert group, the Sentencing Commission for Scotland which, after studying sentencing bodies in the US and New Zealand suggested the establishment of a sentencing council and one was duly created in 2015.Footnote 104 In Victoria, Australia, a report commissioned by the state’s Attorney-General into sentencing led to the establishment of a Sentencing Advisory Council in 2004, as well as a system of guideline judgments (and a drug court). The report examined sentencing commissions and guidelines in the US, the Sentencing Advisory Panel in the UK and proposals in South Africa.Footnote 105 Also in Australia, in 2008 the Tasmania Law Reform Institute recommended the establishment of an independent sentencing advisory council to bridge the gap between the community, courts and government, but not to issue sentencing guidelines.Footnote 106
Commissions continued to proliferate in the twenty-first century. In 2011 the Chief Justice of Uganda appointed a Sentencing Guideline Taskforce to develop sentencing guidelines.Footnote 107 In 2014, the Chief Justice of Kenya established a Task Force on Sentencing Policy and GuidelinesFootnote 108 and in 2016 the Northern Ireland Committee for Justice commissioned a report on sentencing guideline mechanisms in other jurisdictions (Northern Ireland Assembly 2016) and another, on the same topic in 2011.Footnote 109 Back in Victoria, the Victorian Sentencing Advisory Council discussed the possibility of a sentencing guidelines council, looking at other jurisdictions such as England and Wales, Scotland and New Zealand.Footnote 110 Finally, the most recent guidelines were introduced in Tanzania in 2020.Footnote 111
Role of Policy entrepreneurs
Frankel’s publications provided the foundation for the development of sentencing commissions, but as a judge, he did not proselytise directly for his model, other than through lectures and seminars. His ideas generated considerable debate which took place in legislative and academic forums. However, unlike the experience in many other areas of policy transfer, both national and international, it was not professional consultants or major international or nongovernmental organisations (NGOs) that were the most influential in transferring policiesFootnote 112 but rather, experts and sentencing scholars. Rose noted that policy entrepreneurs/experts are important are important not only because of their mastery of a special subject and their advocacy of the cause but because of their networks of contacts, local and international, that provide the source of new ideas.Footnote 113
Policy entrepreneurs have been described as political actorsFootnote 114 who attempt to transform policy ideas into policy innovations and thereby disrupt the status quo.Footnote 115 They differ from politicians, public servants or interest group leaders.Footnote 116 Over the decades a number of key players were instrumental in disseminating/diffusing the idea of sentencing commissions and guidelines, particularly through their publications, public presentations, personal visits to jurisdictions outside their own, curating of seminars and conferences and editing of publications.Footnote 117 From Minnesota, staff of the commission such as Kay Knapp and Dale Parent articulated the Minnesota guideline model, either individuallyFootnote 118 or together with scholars.Footnote 119
Comparative scholarship
Conferences, symposia and other gatherings have produced publications providing information about sentencing guidance and commissions on which policy makers can draw in deciding whether or not to adopt a policy or program, or some form of it. Some authors are clear about their purpose. In her article on why sentencing reform is needed in Germany, Herz has a section headed “Sentencing Guidance: Lessons to be Learned from Foreign Jurisdictions”, a clear example of policy learning or lesson drawing as described above.Footnote 120 Other authors explicitly reflect on what, if anything, one jurisdiction can learn from another.Footnote 121 In sentencing scholarship more generally, there is often reference to international models, primarily the UK and the US, with discussion of their relative merits.Footnote 122
Some scholars, including those identified as policy entrepreneurs, have convened conferences, edited books or special editions of journals or have co-authored articles that compare jurisdictions. Sentencing reform conferences have been the forum for the testing of sentencing reform ideas from the early days of the reform movement. In the UK in 1985 a conference was convened by Ken Pease and Martin Wasik which involved academics from both the UK and the US to discuss sentencing guidelines.Footnote 123 In 1992, Kevin Reitz convened a conference on Sentencing Reform in the states which examined various aspects of sentencing reform. This was attended by state commissions and was the source of the idea for a national association of commissions.Footnote 124 The first of a series of international sentencing conferences date took place 1993 and brought together scholars from Australia, Sweden, the UK, the US and Canada.Footnote 125 This was followed by conferences in 1998 in Minneapolis;Footnote 126 1999 and 2002 in Glasgow;Footnote 127 and Haifa in 2012. In 1997 a seminar on sentencing was held at in Israel to discuss a report of a committee on the need for and ways to structure judicial discretion in sentencing, including the establishment of a sentencing commission.Footnote 128 In 2006, soon after the establishment of the Victorian Sentencing Advisory Council a conference on penal populism, sentencing councils and sentencing policy was held in Melbourne. This brought together sentencing scholars and others from the US, New Zealand, the UK and South Africa to discuss the role of sentencing councils.Footnote 129 In 2010 the Federal Sentencing Reporter published a special issue on sentencing that examined sentencing structures and practices in the US and different countries.Footnote 130
Michael Tonry has published prolifically on sentencing generally, and sentencing commissions and comparative sentencing in particular.Footnote 131 Over the years he has hosted a series of scholarly meetings addressing sentencing issues. His book Sentencing Matters, published in 1996 analysed sentencing policy and practices in the US and other Western countries and through his editorship of a journal entitled “Overcrowded Times”, which commenced publishing in 1991 he commissioned and published articles from scholars around the western world, some of which were published across several volumes.Footnote 132
Non-government organisations
In the US, the American Bar Association’s Sentencing Standards Project recommended that states should establish sentencing commissions. The Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota has published a number of reports comparing US jurisdictionsFootnote 133 as well as providing a major repository of sentencing documents. The National Association of Sentencing Commissions was established, informally at first in 1993 and later, more formally, in the late 1990sFootnote 134 and serves as a forum for or the sharing of information and experiences of those involved in sentencing, but not for drafting model bills on sentencing. In the UK, JUSTICE published a report in 1989 that recommended the establishment of a sentencing commissionFootnote 135 as did a Conservative think tank.Footnote 136 The most significant development was the American Law Institute’s Model Penal Code project on sentencing. After several years of study, consultation and discussion, a Sentencing Code was approved in 2017.Footnote 137 This project revisits the sentencing provisions of the original Model Penal Code in light of the many developments in sentencing, policy, practice and research since the Code was first devised.Footnote 138 The ALI text sets a model regime for a sentencing commission and guidelines, drawing on the collective experience over the past 30 years. The ALI Code is likely to influence the evolution of commissions in many jurisdictions over the next few years.
The conditions for diffusion or transfer
Walker’s pioneering work also focused on the question of why some jurisdictions in the US are quicker to innovate than others. He found that when it came to social and economic programs, states which were bigger, richer, more urban and more industrial and experienced more turnover in their political systems were more likely to innovate.Footnote 139 He also concluded that in the US, adoption of programs was more likely if another state had already adopted the idea (emulation) though there was also an element of competition whereby states sought to outdo each other. However, the currently accepted view is that the importance of competition in policy choices should not be overestimated and that governments have little to gain from it.Footnote 140
Where and Why Sentencing Commissions and/or Guidelines Were Not Transferred
Not every jurisdiction that has considered establishing a sentencing commission has accepted either the need for a commission or for sentencing guidelines or guidance. Some of the reasons lie in the institutional differences between jurisdictions, particularly between the US and the rest of the world. Although the US has long been a prominent exporter of useful penological ideas such as parole, probation and drug courts, it has also exported less attractive ideas such as three-strikes legislation.Footnote 141 However, its hegemonic role in shaping cultural, economic and political trends is notable, and, as has been observed, in some respects America’s today is other countries” tomorrows.Footnote 142 Despite its hegemonic role, not all of its ideas have been accepted.Footnote 143 In New Zealand,Footnote 144 South Africa,Footnote 145 CanadaFootnote 146 and Israel,Footnote 147 commissions have been seriously considered, proposed and rejected, while in Australia, the federal government and the governments of the Australian Capital Territory,Footnote 148 the Northern TerritoryFootnote 149 have considered the idea but not proceeded. In Victoria, which has had a Sentencing Advisory Council since 2004, a proposal for a Sentencing Guidelines Council, similar to that in the UK, has not progressed. In the US itself, Colorado, Connecticut, Maine, Montana, New York, and Texas have considered and rejected the idea of sentencing guidelines.Footnote 150
There are two broad classes of reasons why sentencing commissions and/or guidelines have not been transferred or diffused from either the US or the UK. The first encompasses the political or institutional factors and the second relates to concerns with sentencing commissions or guidance more specifically.
Political, cultural and institutional factors
The process of indigenization or hybridizationFootnote 151 of sentencing commissions outside the US highlights the differences in political, cultural and institutional factors in the receiving jurisdictions.Footnote 152 It is possible reservations about American exceptionalism in penal policies are also relevant. While American ideas can be attractive as a concept, importing jurisdictions tend to be more moderate and restrained and more likely to attempt to adapt the policies to existing jurisprudential frameworks rather than rejecting existing systems outright.
In jurisdictions outside the US, the rehabilitative ideal and indeterminate sentences were never as dominant and the abandonment of classical theory was never as dramatic.Footnote 153 Although most common law jurisdictions have many features in common (for example, the role of defence and prosecution attorneys in making sentencing submissions, and the use of plea negotiations before judicial officers) there are local differences in how these roles are played out.Footnote 154
Aharonson has argued that the US differs from other Western democracies in its constitutional and political arrangements, such that policy makers are more vulnerable to electoral pressures to adopt populist policies in response to crime.Footnote 155 In particular the election (rather than appointment of judges and prosecutors) as well as sentencing reforms driven by citizen initiatives and referendums have produced more populist polices than jurisdictions where professional expertise and the public service play a greater role.Footnote 156
In contrast, there is a culture or tradition of judicial independence in the UK and other common law countriesFootnote 157 and in many jurisdictions where commissions and guidelines have been resisted or rejected, the judiciary has played a major role.Footnote 158 The arguments, though contentious, are that sentencing is a judicial function. It is, best done by judges who have the deepest knowledge of the relevant factors in each case, all of which are unique. Although accepting that legislatures play a role in sentencing by setting maximum (or minimum) penalties, the concepts of the separation of powers and judicial independence are seen to require that legislatures (and other bodies) remain removed from judicial decision-making, where the widest degree of discretion possible is best reposed.Footnote 159 However, in most jurisdictions where sentencing commissions have been established, judicial officers play a major role, either as chairs or through their majority membership.Footnote 160
Stith and Koh have argued that one of the reasons that the idea of transferring authority from the judiciary to sentencing commissions took hold in the US was that the judiciary, particularly the organized federal judiciary, had little influence on sentencing reform legislation. Generally, judges (Judge Frankel excepted) were passive witnesses in the debates that led up to the federal sentencing commission.Footnote 161 Judges are not a cohesive group and, in the US, elected judges were concerned that they not be seen to oppose more severe sentencing laws, which the move to more determinate sentences and sentencing commissions might bring.Footnote 162 However, why a legislature (or the judiciary in some cases) would wish to cede their authority over sentencing law to another body such as a sentencing commission remains problematic.Footnote 163
Specific objections
As indicated above, Frankel was responding to what he regarded as the unjustifiable disparities between individual cases produced by the indeterminate sentencing system and unchecked parole authorities. He was particularly concerned with, unjustifiable disparities on the basis of race and other systemic factorsFootnote 164 while later research provided abundant evidence of unjustifiable disparity between judges.Footnote 165
However, in many jurisdictions, the premise of unjustified disparity is disputed. Where disparity exists, it is regarded and justified as the product of the vast range of offence and individual circumstances with which courts must deal.Footnote 166 In the lead up to the legislation creating the US Guidelines Commission, a number of congressmen questioned “the very premise of the Senate bill: that there was rampant, unjustifiable sentencing disparity in federal courts due to the exercise of discretion by sentencing judges”.Footnote 167 Similar sentiments were expressed, for example, in Victoria, Australia, where submissions to the Victorian Sentencing Council’s inquiry as to whether a sentencing guideline council should be established stated that there was a lack of empirical evidence of “systemic, unjustifiable disparity in sentencing approach”.Footnote 168
Even when it is accepted that some degree of unjustified disparity exists, there remains a firm commitment to the primacy of discretion and the fundamental role of judges in the sentencing system. The strong belief in individualization and the lesser importance of consistency in many common law jurisdictions such as Australia and Canada have limited or thwarted the development of sentencing commissions and, where they have been established, they are either advisory or do not have a guidelines function. Further, any acceptance that unjustifiable disparity is a significant problem does not necessarily entail the establishment of a sentencing commission or guidelines, the latter being regarded as a greater evil than the problem.Footnote 169
It is argued there are a number of alternative means of dealing with any problems of disparity.Footnote 170 First, “consistency of approach”, meaning the application of appropriate principles and factors when exercising judicial sentencing discretion, can provide an acceptable framework within which judges may approach their task while retaining a large degree of discretion. Second, systems of appellate review of sentencing existFootnote 171 in most common law jurisdictions, capable of dealing with cases of legal error and sentences that are manifestly excessive or lenient. Despite extensive criticisms of the adequacy of this remedy, it remains a primary means of correcting error and one method of setting sentencing standards.
Third, in some jurisdictions, courts of appeal can issue guideline judgments providing guidance for lower courts on relevant principles, sentencing factors, sentencing standards and a number of other matters relevant to sentencing.Footnote 172 Fourth, sentencing data bases or sentencing information systems can be created by other bodies which can assist judges by providing them with information about what other judges are doing in the form of current sentencing practices, ranges, comparable cases and other statistics which they may or may not wish to consider.Footnote 173
Fifth, legislatures may provide general guidance in the form of legislation which may contain details of sentencing aims and principles, relevant and irrelevant aggravating and mitigating factors, guidance as to the appropriate use of particular sanctions. Alternatively, as is the case in Israel, there may be other forms of “guidance by words” which requires courts to “devise their own proportionate sentence range for the case being sentenced, and to provide reasons if they impose a sentence outside this range”.Footnote 174
Sixth, guidance can be provided through judicial training and education informing judicial officers, particularly new judges, of sentencing theory and practice. This may assist in the development of an institutional understanding of what sentencing involves and, in some circumstances, of jurisdictional or local sentencing cultures.
Europe has been particularly resistant to either US or UK style commissions and guidelines. This must be seen in the context of the significant difference in constitutional and legal settings and culture between the adversarial and inquisitorial systems. These differences are manifested in such matters as the appointment and training of judicial officers, the relationship between the individual and the state, the role that plea negotiations play in the prosecution process, the greater insulation of the policymaking process from popular pressures and a tendency to rely on codified legal norms to set sentencing standards and regulate judicial discretion.Footnote 175 In Germany, for example, most cases end at the prosecution level where the prosecution authorities are regulated by internal directions which are similar to sentencing guidelines.Footnote 176
Other factors that have limited the pressure for sentencing reform in Europe include far lower imprisonment rates generally than the USFootnote 177 and a greater use of intermediate sanctions, fewer mandatory sentencing provisions, no- or lesser use of plea negotiations and greater judicial control over pleas and sentencing outcomes.Footnote 178 In Germany there is strong formal opposition to the establishment of any form of sentencing commission, notwithstanding evidence of significant regional disparity in the application of the same federal Criminal Code.Footnote 179
The US federal system: counter-transference
Despite it being atypical of sentencing guideline systems in the US,Footnote 180 the federal model is the one that has attracted the most attention. As an example of policy learning, it was a failure. The system has been criticized for its inflexibility and complexity, for setting sentences too high, for enhancing the power of prosecutors in the plea negotiation process and for disempowering judges.Footnote 181 Tonry described it as “the most controversial and reviled sentencing reform initiative in US history”.Footnote 182 The federal model, which is iconic of the two-dimensional grid structure,Footnote 183 represents, to those outside the US, the worst of all possible models of sentencing guidance. As a consequence, jurisdictions considering what can be learned from international models have studiously and emphatically avoided this one. It has been specifically rejected in Canada,Footnote 184 New South Wales,Footnote 185 Victoria,Footnote 186 England and Wales,Footnote 187 Kenya,Footnote 188 KoreaFootnote 189 and Ethiopia.Footnote 190 In Germany, the German Assembly of Jurists, made up mainly of practitioners and some academics, considered a report on US sentencing practices focusing on the federal guidelines as an alternative to the German system. As one commentator observed: “The dominant role federal guidelines have played in the sentencing reform debate is unfortunate’Footnote 191 while another wrote that “the Federal Sentencing Guidelines make an easy target for criticism and an unattractive choice for present day sentencing reform”.Footnote 192
Policy Transfer Failures
‘Failure” is here defined as meaning commissions that were established but subsequently abolished, commissions abolished but leaving guidelines in place (a case of partial success/failure) or where the combination of commissions and guidelines failed to achieve their objectives. Another conception of policy transfer failure, though not one to which the authors subscribe, is the establishment of commissions or councils that eschew guidelines, but achieve a number of other purposes (the case in Australia). In 1991 Tonry argued that there had been more failed sentencing commissions than successful ones.Footnote 193 This is no longer the case, even accounting for commissions which were established but subsequently closed or changed focus or functions.Footnote 194
Some commissions have lapsed and been resurrected. The first Scottish council was established for a limited tenure to inquire into a small number of sentencing issues (between 2003 and 2006Footnote 195) but re-established in 2015 with a mandate to issue guidelines.Footnote 196 The Queensland Sentencing Advisory Council survived for two years between 2010 and 2012 until a conservative government closed it down because it was critical of the previous government’s reluctance to make “tough decisions” on sentencing, by “outsourcing” decisions to a committee. The government regarded its role as being to make those tough decisions on law and order.Footnote 197 The Council, together with a number of other bodies, was abolished because such bodies were “wasteful offices that are wasting money”.Footnote 198 A later government re-established the Council because it saw the need for a body to promote an understanding of the criminal justice system, in particular the sentencing regime, to ensure public confidence in the administration of justice and to improve the effectiveness of sentencing practices.Footnote 199
Tonry identified two major reasons for failure: (1) failure of purpose, namely sentencing commissions that refused to develop guidelines and (2) failure of politics, namely failure to achieve ratification of guidelines by the legislature or to establish a sentencing council at all. Observers of the US have suggested that success or failure of a sentencing commission might depend not only whether they have achieved their explicit objectives, but also on having respected leaders or administrators, competent staff, by their permanence, lack of political divisionFootnote 200, by the extent of support from other branches of government, especially from the judiciary, and the political astuteness of their chairs and their relationships with government.Footnote 201
Other factors influencing success or failure of a sentencing commission can include strong leadership and administration; staff competence; permanency; support from across the political spectrum and from other branches of government (particularly the judiciary); and the political astuteness of their chairs in managing the ongoing and shifting relationships with government.Footnote 202 Finally, some commissions have failed or have languished due to lack of adequate resources or withdrawal of funding or lack of a clear purpose.Footnote 203
Conclusion
In 1996, Tonry wrote that the “sentencing commission is alive and well”.Footnote 204 More recent publications echo this conclusion.Footnote 205 As we have documented, from the germ of Frankel’s ideas to the current day, commissions have of various forms have emerged in many common law jurisdictions, not identical, but recognizably similar. While guidelines form the core of many commissions, they have functions well beyond and some do not have that function at all. Policy transfer explains certain policy outcomes (an independent variable) and can be used as an object of study in itself (a dependent variable): we have done both as the two exercises are related. In relation to sentencing commissions or councils and sentencing guidelines, policy transfer is a significant explanation for policy development and the establishment of such bodies.
Policy entrepreneurs, have, over decades, created epistemic communities to promote the ideas of commissions and guidelines. They have done so through building and maintaining policy networks, organizing and curating seminars and conferences, and through their publications which articulate and develop theories, compare jurisdictions and continually promote and define their field.Footnote 206 Ultimately however, it is the public servants advising following by the elected officials deciding to turn a policy into a program or an institution, in this case, a sentencing commission or council. The primary decision also requires further commitments to staffing and resourcing and to making the case for its public value in the face of potential opposition and competing demands. It is the political institutions of a jurisdiction that determine how the institution will be received and whether it will succeed or fail.
The US has innovated boldly while other jurisdictions have followed more cautiously and with due regard to their own social, cultural, political and jurisprudential institutions and cultures. The interplay between the global and the local that is evident in the diffusion of sentencing councils provides an illuminating case study of how ideas and institutions are spread, how, and by whom. While each jurisdiction faces similar problems, there is much inventiveness in the way they respond to them – adapting, modifying, localizing and adjusting As Frase noted in 2005 in relation to US commissions, “guideline systems, once enacted, do not remain static”.Footnote 207
From our account above, it is evident that internationally, “there appears to be a lively spirit of innovation and adaptation of the guidelines concept.Footnote 208 At the same time policy learnings, rather than transfer, have been careful, considered and cautious with close attention to local requirements, laws, institutions and cultures. The history of sentencing commissions is less than 40 years old, a short period in legal history. There remains much room for the institution to evolve and for jurisdictions to learn from the experiences of those that have been established, those that have not succeeded and those that have thrived. As Judge Marvin Frankel observed, this line of work “is not for the short-winded”.Footnote 209
Finally, the proliferation of sentencing guidelines and commissions suggests both that these reforms carry appeal beyond the jurisdictions of origin, and also that such structures are likely to spread still further. They represent an institutional response to sentencing problems which can be adapted to very diverse legal regimes throughout the world. The revolution in sentencing started by Judge Frankel has yet to conclude. There is now a pressing need for more (and more comprehensive) evaluation research to identify the kinds of guidelines commissions (and guidelines) which produce the greatest benefits in terms of increased transparency, consistency and accountability. Until now, research on the effects of different approaches has been either jurisdiction-specific or sporadic.
Notes
M. Frankel, Criminal Sentences: Law Without Order (New York: Hill and Wang, 1973).
The use of guidelines in sentencing was a form of policy transfer from their use at parole. In the US, parole guidelines to establish standards for release decisions were developed by the US Board of Parole in introduced in 1976 and served as a model for other states. Subsequently, the developers of the parole guidelines tested their use in sentencing decision-making; see L. Wilkins et al, Sentencing Guidelines: Structuring Judicial Discretion (Washington DC: US Department of Justice, 1978); S. Martin, (1983-84) Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania Villanova Law Review 21.
The terminology varies across jurisdictions. In the US, the preferred term is “commission” while the preferred term in Australia and elsewhere, is “council”. The terms are interchangeable in that some commissions are advisory and some councils have decision-making power. For consistency, we use the word “commission” to describe both.
In 1995, Tonry noted that the scholarly and evaluation literature on sentencing commissions and their guidelines was “slight”. Few discussed commissions, rather than guidelines, in detail: P. O’Donnell, M.J. Churgin and D.E. Curtis, Toward a Just and Effective Sentencing System: Agenda for Legislative Reform, (New York: Praeger, 1977), A. von Hirsch, K. Knapp and M. Tonry, The Sentencing Commission and its Guidelines (Boston: Northeastern University Press, 1997). D. Parent, Structuring Criminal Sentences: The Evolution of Minnesota’s Sentencing Guidelines (Stoneham, MA: Butterworths Legal Publishers, 1988).
D. Stone, “Transfer and Translation of Policy” (2012) 33(6) Policy Studies, 483-499. For a different conceptual model of how sentencing policies are developed and maintained see T.S. Moore, “Critical Junctures in Sentencing Policy: A Case Study” (2022) 37(3) Sociological Forum 766. Using case studies of Minnesota and Wisconsin, he argues that an understanding of path dependence is crucial to understanding why policies are developed and, more importantly maintained). For a more general historical discussion of cross-national policy learning on crime control see T. Jones and T. Newburn, “When Crime Policies Travel: Cross-National Policy Transfer in Crime Control” (2021) 50 Crime and Justice 115, pp. 119-121.
A. Freiberg and K. Gelb, “Penal Populism, Sentencing Councils and Sentencing Policy” in A. Freiberg, and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008); K. Mitchell, Sentencing Commissions and Guidelines by the Numbers: Cross-Jurisdictional Comparisons Made Easy (Minneapolis: Robina Institute, 2017).
M. Tonry and R. S. Frase (eds) Sentencing and Sanctions in Western Countries (New York: Oxford University Press, 1995) p. 6.
K. Reitz, “The Status of Sentencing Guideline Reforms in the US” in Tonry, M. (ed) Penal Reform in Overcrowded Times (New York: Oxford University Press, 2001) p. 311; M. Miller, “A Map of Sentencing and a Compass for Judges: Sentencing Information Systems, Transparency, and the Next Generation of Reform” (2005) 105 Columbia Law Review 1359-1360.
R.E. Barkow and K. M. O’Neil, “Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation” (2006) 84 Texas Law Review 1973-2022, pp. 1973-1974; Bureau of Justice Assistance, National Assessment of Structured Sentencing (Washington DC: Bureau of Justice Assistance, 2004).
M. Tonry and R. S. Frase, supra note 7, p. 9.
Ibid, p. 10.
Reitz observed that all the better US systems (that is, other than the Federal Guidelines system) are variations on the Minnesota guidelines framework, supra note 8, p. 182.
M. Kurlychek and J.H. Kramer, “The Transformation of Sentencing in the 21st Century” in C. Spohn and P. Brennan (eds) Handbook on Sentencing Policies and Practices in the 21st Century, (New York: Routledge, 2020) p. 25.
A. Ashworth and J.V. Roberts, “The Origins and Nature of the Sentencing Guidelines in England and Wales” in A. Ashworth and J.V. Roberts (eds.) Sentencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013) pp. 3-5.
Although, increasingly over recent years, mandatory or mandatory minimum sentences.
Northern Ireland Assembly, Sentencing Guidelines Mechanisms in Other Jurisdictions (2016) Paper 66/11, Research and Information Service, Research Paper, pp. 10-11.
J. V. Roberts and L. Harris, “Sentencing Guidelines Outside the US” in C. Spohn and P. K. Brennan (eds) Handbook on Sentencing Policies and Practices in the 21st Century (New York: Routledge, 2020), pp. 69-70.
A. Ashworth, “Reducing the Prison Population in the 1980s: The Need for Sentencing Reform”, in A Prison System for the Eighties and Beyond, (London, NACRO, 1982).
A. Ashworth and J.V. Roberts, supra note 14.
Though its first chair stated that it “was no mere copy or mimic of any sentencing body, council or commission that had been earlier established overseas” (A. Abadee,‘The New South Wales Sentencing Council” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008) p.126. A review of sentencing in 1994 by the New South Wales Attorney-General’s Department raised the issue of the need of a “Sentencing Policy Advisory Council”. B. Debus, B. (2003) “The NSW Sentencing Council: Its Role and Functions’ (2003) 15 (6) Judicial Officers Bulletin 45-47, p. 45.
Queensland’s Council was dissolved in 2012 and re-established in 2016.
Several jurisdictions have considered but declined to establish a commission. These include Canada, Israel, South Africa, New Zealand, the Commonwealth of Australia, the Australian Capital Territory, the Northern Territory, while in the US, Colorado, Connecticut, Maine, Montana, New York, and Texas have also considered and rejected sentencing guidelines (R.S. Frase, “Four Decades of American Sentencing Guidelines: What Have We Learned?” (2019) 48 Crime and Justice, A Review of Research, 79-136.)
Jones and Newburn, supra note 5, p. 116.
J.L. Walker, “The Diffusion of Innovations Among American States” (1969) 63 American Political Science Review 880-895; D. Levi-Faur, Jack L. Walker and the Study of Diffusion, Working Paper No. 60, Jerusalem Papers in Regulation and Governance, Jerusalem: The Hebrew University, 2013; C.Z. Mooney, The Study of US State Policy Diffusion: What Hath Walker Wrought? (Cambridge: Cambridge University Press, 2020).
D. Dolowitz and D. Marsh “Who Learns from Whom: A Review of the Policy Transfer Literature” (1996) 54 Political Studies 343-357, p. 334.
Ibid. p. 344.
D. Stone supra note 5.
D. Dolowitz and D. Marsh, supra note 25, p. 343; Jones and Newburn, supra note 5, p. 121.
C.R. Shipan and C. Volden, “Policy Diffusion: Seven Lessons for Scholars and Practitioners” (2012) 72(6) Public Administration Review 788-796, p. 788.
M.E. Rogers, The Diffusion of Innovations, (5th ed. New York: Free Press, 1995), p. 5; F. Berry and W. Berry “Innovation and Diffusion Models in Policy Research” in P. Sabatier (ed), Theories of the Policy Process (Boulder CO: Westview, 1999) p. 171.
D. Stone supra note 5, p. 484.
Ibid. p. 487.
Tonry has suggested that it is inevitable that legal systems will converge as new technologies spread across the world and as pressures of human rights standards and common information sources provide pressures in particular directions (M. Tonry, “Introduction: Penal Policies at the Beginning of the Twenty-First Century” in M. Tonry (ed) Penal Reform in Overcrowded Times (New York: Oxford University Press, 2001), p. 14).
D. Stone supra note 5, p. 487.
J. Braithwaite, “A Sociology of Modelling and the Politics of Empowerment” (1994) 45(3) British Journal of Sociology 445-479, p. 450.
Ibid.
D. Stone supra note 5, p. 488
D. Stone supra note 5, p. 493-4; M. Mintrom, “Policy Entrepreneurs and the Diffusion of innovation” (1997) 41(3) American Journal of Political Science 738-770.
T. Newburn, “Diffusion, Differentiation and Resistance in Comparative Penality” (2010) 10(4) Criminology and Criminal Justice 341-352, p. 344.
Ibid p. 350
M. Tonry supra note 33, p. 3; R. E. Barkow and K. M. O’Neil “Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation” (2006) 84 Texas Law Review 1973-2022, pp. 2015-2016.
D. Dolowitz and D. Marsh supra note 25, p. 346.
D. Garland, The Culture of Control (Oxford: Oxford University Press, 2001), pp. 8-20; J. Pratt, “Penal Scandal in New Zealand” in A. Freiberg, A. and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008); A. Freiberg and K. Gelb supra note 6, p. 2.
M. Hough and J.V. Roberts, Confidence in Justice: An International Review (London: Home Office, 2004); D. Indermaur, “Dealing the Public in: Challenges for a Transparent and Accountable Sentencing Policy” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing Policy (Leichhardt, NSW: The Hawkins Press,) p. 46.
C. Tata, “The Struggle for Sentencing Reform: Will the English Guidelines Model Spread?” in A. Ashworth and J.V. Roberts (eds.) Sentencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013), p. 239.
K. R. Reitz, “The Status of Sentencing Guideline Reforms in the US” in Tonry, M. (ed), Penal Reform in Overcrowded Times (New York: Oxford University Press, 2001), p. 31.
Eg Kenya (H.O. MBori, “Discreet Discretion and Moderate Moderation in Judicial Sentencing: A Commentary on Kenya’s Sentencing Policy Guidelines, 2016” (2017) 3 Strathmore Law Journal 89-112, p. 91; S. M. Kinyanjui and M. Akech, “Towards Structured Sentencing Reform in Kenya: A
Case for Reform” (2016) 9(1) African Journal of Criminology and Justice Studies 266-278, p. 266; Korea (E.E. Murphy, “Attempts at Fair Sentencing in the US and Korea: A Historical View of
Sentencing Guidelines and Mandatory Minimums in Two Vastly Different Criminal Justice Systems” (2015) 56 (1) Law Review, 179-214; Ireland (Law Reform Commission (1996); E. Guilfoyle and I.D. Marder (2021) “Using Data to Design and Monitor Sentencing Guidelines: The Case of Ireland” 50(3) Common Law World Review 103-119, p. 105; Pakistan (where the Sentencing Council of Pakistan was established to improve “the level of consistency in sentencing” see Punjab Sentencing Act 2019); China (a lack of consistency was identified as a major problem with the current sentencing structure (X. Chen, “The Chinese Sentencing Guideline: A Primary Analysis” (2010) 22(4) Federal Sentencing Reporter 213-216, p. 213; J.V. Roberts and W. Pei, “Structuring Judicial Discretion in China: Exploring the 2014 Sentencing Guidelines” (2016) 27(1) Criminal Law Forum, 3-33, p. 8.
Eg Kenya (H.O. Mbori supra note 47, p. 91; China (lack of meaningful guidance as to appropriate sentencing standards identified as a major problem with the current sentencing structure (X. Chen supra note 47, p. 213.).
M. L. Miller supra note 8, pp. 1359-1360; W. H. Jr. Pryor, “Lessons of a Sentencing Reformer from the Deep South” (2005) 105 Columbia Law Review 943-958, p. 943.
R. E. Barkow and K.M. O’Neil supra note 9.
Between 1973 and 2018 Australia’s imprisonment rate increased from 99.7 per 100,000 adults to 221.2 per 100,000 adults. England and Wales” imprisonment rates increased from 103 to 185.2 per 100,000 adults and New Zealand’s from 134 to around 271 per 100,000 adults (A. Leigh, The Second Convict Age: Explaining the Return of Mass Imprisonment in Australia (Bonn, IZA-Institute for Labor Economics, 2020) pp. 29-30.
M. Tonry (1996) Sentencing Matters, (New York: Oxford University Press, 1996), p. 9.
A. Freiberg and K. Gelb supra note 6, p. 10.
Eg Kenya (H. O. Mbori supra note 47, p. 91.) and Korea (H. Park, “The Basic Features of the First Korean Sentencing Guidelines” (2020) 22(4) Federal Sentencing Reporter 262-271, p. 262.
R. E. Barkow and K. M. O’Neil supra note 9.
N. Hutton, “Institutional Mechanisms for Incorporating the Public” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing Policy (Leichhardt, NSW: The Hawkins Press, 2008b); A. Freiberg and K. Gelb supra note 6, pp. 12-13.
A. Freiberg, L. Bartels, R. Fitzgerald and S. Dodd, “Parole, Politics and Penal Policy” (2018) 18(1) Queensland University of Technology Law Review 191-215.
A. Freiberg and K. Gelb, supra note 6, p. 2.
A. Abadee, “The New South Wales Sentencing Council” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008) pp. 128-129.
A. Ashworth, Sentencing and Criminal Justice (4th ed, Cambridge: Cambridge University Press, 2005).
A. Freiberg, Pathways to Justice (Melbourne: Department of Justice, 2002), p. 24.
Victoria, Hansard, 12 September 2002: 206.
J. V. Roberts, “Sentencing Policy and Practice: The Evolving Role of Public Opinion” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008); A. Freiberg, “The Victorian Sentencing Advisory Council: Incorporating Community Views into the Sentencing Process” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008); M. Hough and A. Kirby, “The Role of Public Opinion in Formulating Sentencing Guidelines” in Ashworth, A. and J.V. Roberts (eds) Sentencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013); A. Freiberg, “Bridging Gaps, Not Leaping Chasms: Trust, Confidence and Sentencing Councils” (2021) 12(3) International Journal for Court Administration 6. In Uganda the sentencing guidelines aim to integrate the community into the criminal process by means of a “community impact statement’: D. Dennison (2014) Uganda’s New Sentencing Guidelines: Introduction, Initial Assessment and Early Recommendation https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2441835, p. 3.
A. Freiberg, “Bridging Gaps, Not Leaping Chasms: Trust, Confidence and Sentencing Councils” (2021) 12(3) International Journal for Court Administration 6, p. 4.
Sentencing Council Act 2007 (NZ), s 8(d) (repealed); see also Korea, where the creation of a commission and sentencing guidelines was a system of nepotism that created deep distrust in the criminal justice system (E.E. Murphy, “Attempts at Fair Sentencing in the US and Korea: A Historical View of Sentencing Guidelines and Mandatory Minimums in Two Vastly Different Criminal Justice Systems” (2015) 56(1) Law Review 179-214.); Ireland, where one of the aims of the Sentencing Guidelines and Information Committee is “to promote public confidence in the system of criminal justice” (The Judicial Council (Ireland) Annual Report 2020, pp. 22-24); Pakistan (Punjab Sentencing Act 2019, s 21(f) states that one of the functions of its Sentencing Council is to “play a greater part in promoting understanding of, and increasing public confidence in, sentencing”.
R. Allen and M. Hough, “Does it Matter? Reflections on the Effectiveness of Institutionalised Public Participation in the Development of Sentencing Policy” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008), p. 238.
A. Freiberg supra note 64, p. 8. However, the “cognitive deficit” model has been criticised on the basis that public perceptions and attitudes about sentencing are based more on emotion than on information (I. Loader, “Playing with Fire? Democracy and the Emotions of Crime and Punishment” in S. Karstedt, I. Loader and H. Strang (eds) Emotions, Crime and Justice (London: Hart Publishing, 2011).
D. Dolowitz and D. Marsh, “Learning from Abroad: The Role of Policy Transfer in Contemporary Policy Making” (2000) 13(1) Governance 5-24, p. 12). Jones and Newburn draw a distinction between “soft transfers”, namely those associated with penal policies that have an emotive political appeal and “hard transfers”, those with a strong technical flavour, supra note 5, p. 115. Sentencing commissions and guidelines could be considered examples of “hard transfer” as they involve the establishment of institutions and mechanisms for sentencing guidance rather than being rhetorical devices such as “three strike” or “zero tolerance policing”.
Ibid. p. 13.
M. Frankel supra note 1, p. 51.
J. L. Walker supra note 24, p. 880.
This was in contrast to the rehabilitative ideal which was then the dominant ideology and which left decisions relating to release dates in the hands of parole boards.
M. C. Kurlychek and J. H. Kramer, “The Transformation of Sentencing in the 21st Century” in C. Spohn and P. K. Brennan (eds) Handbook on Sentencing Policies and Practices in the 21st Century, (New York: Routledge, 2020), p. 25.
For a summary of commissions as at 2004 see Bureau of Justice Assistance 2004.
In Australia, this is effectively a government appointment.
F. O’Connell, Comparative Research into Sentencing Guidelines Mechanisms, Paper, 79/16, Northern Ireland Assembly, Research and Information Service, Research Paper, 2011; A.L. Watts, The Composition of Sentencing Commissions (Minneapolis: Robina Institute, 2016). https://sentencing.umn.edu/content/composition-sentencing-commissions.
Eg the US Sentencing Commission.
Eg Ohio.
F. O’Connell supra note 77.
M. Tonry, “The Politics and Processes of Sentencing Commissions” (1991) 37(3) Crime and Delinquency 307-329, pp. 325-326; R. E. Barkow and K. M. O’Neil, supra note 9, p. 1990; S. Terblanche, “A Sentencing Council in South Africa” in Freiberg, A. and Gelb, K. (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008), p. 196; F. O’Connell supra note 77, p. 16; Sentencing Advisory Council, Victoria, A Sentencing Guidelines Council for Victoria (Melbourne: Sentencing Advisory Council, 2018), pp. 10-11.
Other than the guideline judgment model discussed below. In China, for example, sentencing guidelines are issued by the Supreme Peoples' Court without input from non-judicial members or external bodies (J. V. Roberts and W. Pei, “Structuring Judicial Discretion in China: Exploring the
2014 Sentencing Guidelines” (2016) 27(1) Criminal Law Forum 3-33, p. 4.). In Uganda, sentencing guidelines are issued by the Chief Justice (D. Dennison (2014) Uganda’s New Sentencing Guidelines: Introduction, Initial Assessment and Early Recommendation https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2441835, p. 3).
On March 5 2021, Law and Home Affairs Minister of Singapore K. Shanmugam announced there would be a new sentencing advisory panel. This decision was informed by studies of the experiences of other jurisdictions, including Scotland, England and Wales (K. Shanmugam, Ministerial Statement on the Review of Sentencing Framework for Sexual and Hurt Offences – Speech by Mr K. Shanmugam, Minister for Home Affairs and Minister for Law, (2021) https://www.mha.gov.sg/mediaroom/parliamentary/ministerial-statement-on-the-review-of-sentencing-framework-for-sexual-and-hurt-offences-speech-by-mr-k-shanmugam-minister-for-home-affairs-and-minister-for-law/).
J. Kamuzze, “From Discretionary to Structured Sentencing in Uganda” (2020) 1 South African Journal of Criminal Justice 126-147, pp. 128-129.
These include: elected officials, political parties, bureaucrats/civil servants, pressure groups, policy entrepreneurs and experts, transnational corporations, think tanks, supra-national governmental and nongovernmental institutions and consultants. (D. Dolowitz and D. Marsh supra note 26).
S. E. Martin, “Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania” (1983-84) 29 Villanova Law Review 21-113, p. 34.
Ibid, p. 37.
This project commenced in 1974 with the aim of applying the concept of decision-making guidelines to sentencing. Various guidelines were tested in Colorado, Illinois, New Jersey and Arizona and the staff assisted the Court of Common Pleas in Pennsylvania. Leslie Wilkins, one of the developers of the parole guidelines was an advisor to this project. (A. M. Gelman, J. M. Kress and J. C. Calpin, Establishing a Sentencing Guidelines System – A Methods Manual (Albany, NY: Hindelang Criminal Justice Research Center, 1978).
S.E. Martin notes that there were a number of interest groups involved in shaping the sentencing law including law enforcement, judges (to a lesser degree) and corrections, but not scholars S. E. Matin, supra note 86, pp. 41-44. For a detailed analysis of differences in the development of sentencing policies in Minnesota and Wisconsin see Moore supra note 5.
A. C. Sundberg, K. J. Plante and D. L. Braziel, “Florida’s Initial Experience with Sentencing Guidelines” (1983) 11(1) Florida State University Law Review 125-151, p. 125.
Ibid. p. 128.
S.E. Martin supra note 86, p. 64. For a detailed analysis of differences in the development of sentencing policies in Minnesota and Wisconsin see Moore supra note 5.
M. Zalman, C. W. Jr. Ostrom, P. Guilliams, and G. Peaslee, Sentencing in Michigan: Report of the Michigan Felony Sentencing Project Lansing (Michigan: State Court Administrative Office, 1979); Michigan Executive Order No. 2019-10).
R. Gebelein, “Sentencing Reform in Delaware” in M. Tonry and K. Hatlestad (eds) Sentencing Reform in Overcrowded Times: A Comparative Perspective (New York: Oxford University Press, 1997).
The Oklahoma Sentencing and Release Policy Committee led to the creation of the Truth-in-Sentencing Policy Advisory Commission. (J. Greene, “Massachusetts, Missouri, and Oklahoma Establish Sentencing Commissions” in M. Tonry and K. Hatlestad (eds) Sentencing Reform in Overcrowded Times: A Comparative Perspective (New York: Oxford University Press, 1997).
A Task Force on Justice was convened by the Boston Bar Association and the Crime and Justice Foundation which proposed the creation of a sentencing commission, Greene, supra note 95.
The Ohio Criminal Sentencing Commission recommended the establishment of a commission (F. Rauschenberg, “Ohio Guidelines Take Effect” in M. Tonry (ed) Penal Reform in Overcrowded Times (New York: Oxford University Press, 2001), p. 69).
The Truth in Sentencing Commission developed recommendations regarding sentences imposed on certain felonies as well as a number of other sentencing matters, https://scdc.dc.gov/.
The Alabama Judicial Commission Study Commission on Sentencing Reform (W.H. Jr. Pryor, “Lessons of a Sentencing Reformer from the Deep South” (2005) 105 Columbia Law Review 943-958, p. 944.).
The Commission visited a number of American states, including Minnesota and Pennsylvania (J.V. Roberts and L. Harris, note 17, p. 71).
J.V. Roberts, “Structuring Sentencing in Canada and England and Wales: A Tale of two Jurisdictions’
(2012) 23 (4) Criminal Law Forum 319-345.
A. Freiberg, Pathways to Justice (Melbourne: Department of Justice, 2002), Chapter 5.
Tasmania Law Reform Institute, Sentencing, Final Report No 11, (Hobart: Tasmanian Law Reform Institute, 2008) p. 50.
Although the Chief Justice first mooted the idea of a sentencing council attached to the Supreme Court as far back as 1997 when he was judge of the court (J. Kamuzze supra note 85, pp. 128-129, p. 139).
H.O Mbori, supra note 47, p. 93
F. O’Connell, supra note 77.
Sentencing Advisory Council, Victoria, A Sentencing Guidelines Council for Victoria, (Melbourne: Sentencing Advisory Council, 2018) p. 1.
The Tanzanian Sentencing Manual for Judicial Officers contains a comprehensive and integrated set of
reforms, including offence-specific guidelines for court. See The Judiciary of Tanzania Tanzania Sentencing Manual for Judicial Officers (Dar es Salaam, The Judiciary of Tanzania, 2020) and J.V. Roberts, J.V. and E. Hoseah, E. (2022) Sentencing Reform in Tanzania: Moving from Uhuru to Ubuntu? Journal of African Law, in press.
cf. D. Dolowitz and D. Marsh supra note 68, p. 10.
R. Rose, Lesson Drawing in Public Policy (Washington: Sage Publications, 1993), p. 56. See also Jones and Newburn note 5.
Not necessarily only individuals: they can be organisations as well.
In the age of social media, perhaps they might presently be described as “influencers”.
M. Mintrom, “So You Want to be a Policy Entrepreneur?” (2019) 2(4) Policy Design and Practice 307-323, p. 307.
Miller and Chanenson also identify the work of Dan Freed and Norval Morris as “giants of sentencing” with a substantial influence in this field, particularly in developing theories of sentencing and through their influence on the way that scholars and practitioners thought about the problems (M. L. Miller and S. L. Chanenson, “Shaping Modern Sentencing: Three Giants” (2009) 21(4) Federal Sentencing Reporter 227-234, pp. 227-228, p. 233.
Eg K. Knapp, “What Sentencing Reform in Minnesota Has and Has Not Accomplished” (1984) 68 Judicature 181; D. Parent, Structuring Criminal Sentences: The Evolution of Minnesota’s Sentencing Guidelines (Stoneham, MA: Butterworths Legal Publishers, 1988).
Eg A. von Hirsch, K. Knapp and M. Tonry supra note 4.
C. Hertz, “Striving for Consistency: Why German Sentencing Needs Reform” (2020) (21) German Law Journal 1625-1648, pp. 1633-1634. On the strengths and weaknesses of a “lesson drawing” approach see Jones and Newburn, supra note 6, p. 123.
C.M.V. Clarkson and R. Morgan, “Sentencing Reform: Lessons from Abroad” (1994) 2(2) European Journal of Crime, Criminal Law and Criminal Justice 105-119; S. Terblanche, “Sentencing Guidelines for South Africa: Lessons from Elsewhere” (2003) 120 South African Law Journal 858-882; S. Chanenson, “Sentencing Beyond our Borders” (2010) 2(4) Federal Sentencing Reporter 201-203; J.V. Roberts, U. Azmeh and K. Tripathi, “Structured Sentencing in England and Wales: Lessons for India?” (2011) 23(1) National Law School of India Review 27-46; C. Tata supra note 45; K. R. Reitz, “Comparing Sentencing Guidelines: Do U.S. Systems Have Anything Worthwhile to offer England and Wales?” in A. Ashworth and J. V. Roberts (eds.) Sentencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013); W. Young and A. King “Sentencing Practice and Guidance in New Zealand” (2010) 22(4) Federal Sentencing Reporter 354-261; R. S. Frase, “Learning from European Punishment Practices – and from Similar American Practices, Now and in the Past” (2014) 27(1) Federal Sentencing Reporter 19-25; S. Amardeep and S. Gurcharan, “Sentencing Reform in Singapore: Are the Guidelines in England and Wales a Useful Model?” (2018) 30 Singapore Academic Law Journal 175; J.V. Roberts, “The Evolution of Sentencing Guidelines: Comparing Minnesota and England and Wales” (2019) 48 Crime and Justice 187-254 and I. Freixo, “Colloquium Report: Sentencing/Strafzumessung – Comparative Insights” in K. Ambos (ed) Sentencing: Anglo-American and German Insights (Gottingen: Gottingen University Press, 2020) among many.
Eg S.M. Kinyanjui and M. Akech supra note 47, p. 266.
K. Pease and M. Wasik (eds) Sentencing Reform: Guidance or Guidelines? (Manchester: Manchester University Press, 1987); see also A. Ashworth and J.V. Roberts, supra note 14, p. 3.
K. R. Reitz, “Sentencing Reform in the States: An Overview of the Colorado Law Review Symposium” (1993) 64 University of Colorado Law Review 645-54.
C.M.V. Clarkson and R. Morgan supra note 121.
In 2001, Tonry lamented that “there is as yet no meaningfully comparative literature on penal reform” (M. Tonry, supra note 34, p. 14; see also M. Tonry, “Is Cross-National and Comparative Research on the Criminal Justice System Useful?” (2015) 12(4) European Journal of Criminology 505.
N. Hutton and C. Tata (eds) Sentencing and Society: International Perspectives (Ashgate: Aldershot, 2002).
E. Goldberg, Report of the Committee for the Examination of Means to Structure Judicial Discretion in Sentencing, Jerusalem, 1997; see R. Kannai, “Sentencing in Israel” (2010) 22(4) Federal Sentencing Reporter 223-231.
A. Freiberg and K. Gelb supra note 56.
Including Australia, China, Costa Rica, Israel, Japan, Kenya, New Zealand and Korea. (S. Chanenson supra note 121).
His recent publications include: M. Tonry, Sentencing Fragments (Oxford: Oxford University Press, 2016) and Doing Justice, Preventing Crime (Oxford: Oxford University Press, 2020).
M. Tonry, and K. Hamilton Intermediate Sanctions in Overcrowded Times (Boston: Northeastern University Press, 1995); M Tonry and K Hatlestad, (eds) Sentencing Reform in Overcrowded Times: A Comparative Perspective (New York: Oxford University Press, 1997); Tonry, M. (ed), Penal Reform in Overcrowded Times (New York: Oxford University Press, 2001).
Eg B. Tombs-Souvey, The Role of Sentencing Commissions, (University of Minnesota, Sentencing Guidelines Resource Centre, Robina Institute of Criminal Law and Criminal Justice, 2015 https://sentencing.umn.edu/content/role-sentencing-commissions); K. L. Mitchell, Sentencing Commissions and Guidelines by the Numbers: Cross-Jurisdictional Comparisons Made Easy (Minneapolis: Robina Institute of Criminal Law and Criminal Justice, 2017).
JUSTICE (UK) Sentencing—A Way Ahead (London: JUSTICE, 1989).
A. Ashworth, Custody Reconsidered: Clarity and Consistency in Sentencing (London: Centre for Policy Studies, 1989).
The project began in 2001, under Reporter Kevin R. Reitz of the University of Minnesota Law School who was joined in 2012 by Associate Reporter Cecelia M. Klingele of the University of Wisconsin.
Sentencing | American Law Institute (ali.org). For further information on the project see Sentencing - Model Penal Code (thealiadviser.org).
D. Levi-Faur supra note 24, p. 5.
This might have been the case in economic policy but is not relevant in relation to sentencing commissions. (C.R. Shipan and C. Volden supra note 29, p. 790)
Australia has been a net importer of ideas, historically from the UK but more recently, from the US, through television, the Internet, journals and newspapers (J. Braithwaite, “A Sociology of Modelling and the Politics of Empowerment” (1994) 45(3) British Journal of Sociology 445-479, p. 454; A. Freiberg, “Three Strikes and You’re Out - It’s Not Cricket: Colonisation and Resistance in Australian Sentencing” in M. Tonry, and R.S. Frase (eds), Sentencing and Sanctions in Western Countries (New York: Oxford University Press, 2001).
M. Tonry and K. Hatlestad (eds) Sentencing Reform in Overcrowded Times: A Comparative Perspective (New York: Oxford University Press, 1997), p. 3; E. Terblancehe, “Determinate Sentencing and American Exceptionalism: The Underpinnings and Effects of Cross-National Differences in the Regulation of Sentencing Discretion” (2013) 76 (1) Law and Contemporary Problems 16, p.163.
Freiberg, supra note 141.
In New Zealand, a comprehensive package of reforms, including detailed guidelines, had been prepared by the New Zealand Law Commission in 2006. Legislation was introduced to create a commission and guidelines but the Commission was never established and the Act was repealed in 2017 following a change of government (see W. Young and A. King, “The Origins and Evolution of Sentencing Guidelines: A Comparison of England and Wales and New Zealand” in A. Ashworth and J.V. Roberts (eds.) Sentencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013).
S. Terblanche supra note 81.
Roberts, supra note 103 and B.L. Berger, “Judicial Discretion and the Rise of Individualization: The Canadian Sentencing Approach” in K. Ambos (ed) Sentencing: Anglo-American and German Insights, Gottingen: Gottingen University Press, 2020).
R. Kannai supra note 128; J.V. Roberts and O. Gazal-Ayal “Sentencing Reform in Israel: An Analysis of the Statutory Reforms of 2012” (2013) 46 Israel Law Review 455-479.
L. Bartels, “A Sentencing Council for the ACT?” (2013) 38(1) Alternative Law Journal 55. In October 2022 the government announced a Law and Sentencing Advisory Council to advise the government on areas of potential law reform and sentencing.
Press Release, Delia Lawrie, New Sentencing Council for the Territory (Aug. 26, 2011), htp://www.territorv stories.nt.gov.au/bitstream/handle/10070/238999/Lawrie-26081 1-New sentencing council for the Territory pdf.
R.S. Frase, “Four Decades of American Sentencing Guidelines: What Have We Learned? (2019) 48 Crime and Justice, A Review of Research 79-136.
J.L. Jr. Nolan, “The Cultural Constraints of Legal Transplantation: A Ten-Year Retrospective” (2020) 21 Cardozo Journal of Conflict Resolution 641-662, p. 645. see also Jones and Newburn, supra note 5, p. 127 on the importance of understanding the differences between jurisdictions in explaining penal variations between jurisdictions.
Roberts and Terblanche note that in multiracial and post-colonial societies such as those in Africa, US or UK style guidance or commissions may not be the most suitable approach to their problems (J.V. Roberts and S.S. Terblanche, “Editorial” (2020) 1 South African Journal of Criminal Justice 1-32, p. 2.
Freiberg, supra note 141, p. 33; B. Hudson, Penal Policy and Social Justice (London: Macmillan, 1993)
Roberts, J.V., Azmeh, U. and Tripathi, K. (2011) “Structured Sentencing in England and Wales: Lessons for India?” 23(1) National Law School of India Review 27-46, p. 29.
E. Aharonson, “Determinate Sentencing and American Exceptionalism: The Underpinnings and Effects of Cross-National Differences in the Regulation of Sentencing Discretion” (2013) 76 (1) Law and Contemporary Problems 161-187, p. 175.
Ibid. pp. 178-179; R. Hester, “Sentencing in US-American Jurisdictions” in K. Ambos (ed) Sentencing: Anglo-American and German Insights (Gottingen: Gottingen University Press, 2020), p. 175.
J. Simon, “Review of Policy Transfer and Criminal Justice: Exploring US Influence Over British Crime Control Policy by Trevor Jones and Tim Newburn” (2008) 48(2) British Journal of Criminology 251-254, pp. 251-252.
Eg in Canada, a proposal for a sentencing commission failed, in part, due to judicial opposition (J.V. Roberts and H. Bebbington, “Sentencing Reform in Canada: Promoting a Return to Principles and Evidence-Based Policy” (2013) 17(3) Canadian Criminal Law Review 327–347.
Eg in Ireland, initial opposition to a sentencing council and sentencing guidelines was that they might be constitutionally invalid as breaching the doctrines of the separation of powers and judicial independence (E. Guilfoyle and I.D. Marder, “Using Data to Design and Monitor Sentencing Guidelines: The Case of Ireland” (2021) 50(3) Common Law World Review 103-119, p. 104).
Cf Tonry’s argument that a system that has judicial leadership or a majority of judicial members is doomed to failure due to their innate conservatism (M. Tonry, Sentencing Matters (New York: Oxford University Press Tonry, 1996), Chapter 2; A. Ashworth, “English Sentencing Guidelines in Their Public and Political Context” in A. Freiberg and K. Gelb (eds) Penal Populism, Sentencing Councils and Sentencing (Leichhardt, NSW: The Hawkins Press, 2008), p. 119.
K. Stith and S.Y. Koh, “The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines” (1993) 28 Wake Forest Law Review 223-290, p. 251.
R.E. Barkow and K.M. O’Neil supra note 9, p. 1981.
R. Weisberg, “How Sentencing Commissions Turned Out to be a Good Idea” (2007) 12 Berkeley Journal of Criminal Law 179-230, p. 205.
R. E. Barkow and K.M. O’Neil supra note 9, p. 1988.
S.S. Diamond and H. Zeisel, “Sentencing Councils: A Study of Sentence Disparity and its Reduction” (1975) 43(1) The University of Chicago Law Review 109-149, pp, 1975-1976.
S. Krasnostein and A. Freiberg, “Pursuing Consistency in an Individualistic Sentencing Framework: If You Know Where You’re Going, How Do You Know When You’ve Got There?” (2013) 76 (1) Law and Contemporary Problems 265-288.
K. Stith and S.Y. Koh supra note 162, p. 227.
In 1996 Tonry argued that a 1970s argument that there was no convincing evidence of unwarranted sentencing disparities due to indeterminate sentencing was no longer heard (M. Tonry supra note 52, p. 7). However, elsewhere in the world, including those jurisdictions with determinate sentencing systems, the argument still heard is that warranted disparities are acceptable and explicable, and that the level of unwarranted disparities is small and manageable by means other than guidelines. (Sentencing Advisory Council, Victoria, Sentencing Guidance in Victoria (Melbourne: Sentencing Advisory Council, 2016), p. 70.
S. Krasnostein and A. Freiberg supra note 166, pp. 271-272.
Ironically, each of these responses could be the subject of a study of policy transfer in its own right.
Although these were, and are, very weak in the US (K.R. Reitz, “Sentencing Guideline Systems and Sentence Appeals: A Comparison of Federal and State Experiences” (1997) 91 Northwestern University Law Review 1-61).
The development and use of guidelines judgments, which was pioneered in the UK by the Court of Appeal in the mid-1970s is sometimes the forerunner of a sentencing guideline system that involves a sentencing commission (A. Ashworth and J.V. Roberts supra note 14, pp. 3-5). Guideline judgments have been used in New South Wales, Victoria, Singapore and Ireland among other jurisdictions.
Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, (Sydney: Australian Law Reform Commission, 2006) para. 19.34.
J.V. Roberts and L. Harris supra note 17, pp. 71-72; J.V. Roberts and O. Gazal-Ayal, supra note 145.
R.S. Frase, “Comparative Criminal Justice as a Guide to American Law Reform: How do the French do it, How can we Find out, and Why Should we Care?” (1990) 78(3) California Law Review 539-684. In fact, it has been argued that the US and other common law jurisdictions could learn a great deal from continental systems and that selective transplants are possible, and that it might be possible to borrow small differences than big ones (R.S. Frase, “Learning from European Punishment Practices – and from Similar American Practices, Now and in the Past” (2014) 27(1) Federal Sentencing Reporter 19-25, p. 19); see also T. Grosse-Wilde, “Criminal Sentencing in Canada and Germany: Law without Order? A Commentary from a German Perspective” in K. Ambos (ed) Sentencing: Anglo-American and German Insights, Gottingen: Gottingen University Press, 2020), p. 280.
I. Freixo supra note 121, p. 239.
In 2013 the US imprisonment rate is/was around five or ten times that of the UK and about ten times that of Europe (K.R. Reitz supra note 122, p. 182). Grosse-Wilde noted in 2020 that the US imprisonment rate was around 600 per 100,000 of the population compared with around 75/100,000 in Germany, 114 in Canada and 140 in the UK (T. Grosse-Wilde supra note 175, p. 280).
E. Aharonson supra note 155.
J.M. Jehle, “Sentencing in England and Wales. A Commentary from a German Perspective” in K. Ambos (ed) Sentencing: Anglo-American and German Insights (Gottingen: Gottingen University Press, 2020), pp. 98-99; T. Hornle, “Sentencing in US-American Jurisdictions: A Commentary from a German Perspective” in K. Ambos (ed) Sentencing: Anglo-American and German Insights (Gottingen: Gottingen University Press, 2020), p. 189.
Around 98% of criminal cases in the US are heard in state courts (R. Hester supra note 157, p. 155). Miller attributes this focus partly on the tendency of US scholars to teach and write about the federal system (M.L. Miller supra note 9, p. 1351) which has the consequence that those outside the US are likely to know little about state systems.
R. Weisberg supra note 163, p.186; N. Gertner, “From Omnipotence to Impotence: American Judges and Sentencing” (2007) 4 Ohio State Journal of Criminal Law 523-540.
In 1996 he wrote that “Few outside the federal commission would disagree that the federal guidelines have been a disaster” (M. Tonry supra note 52, p. 11); R. Hester supra note 156, p.155.
J.V. Roberts and S. Terblanche supra note 151, p. 2.
J.V. Roberts and L. Harris supra note 17, p. 71.
New South Wales Law Reform Commission, Sentencing. Report 79. (Sydney: New South Wales Law Reform Commission, 1996, p. 12.
A. Freiberg supra note 61, p. 152.
A. Ashworth and J.V. Roberts supra note 14, p. 2.
S.M. Kinyanjui and M. Akech supra note 47, p. 275.
H. Park supra note 54, p. 262.
K. Yilma and J.V. Roberts, “Out of Africa: Exploring the Ethiopian Sentencing Guidelines” (2019) 30 Criminal Law Forum 309-337, p. 310.
R. Hester supra note 156, p. 155.
T. Hornle supra note 179, p. 189.
M. Tonry supra note 81, p. 314.
These include Wisconsin, Louisiana, Florida, Tennessee, Maine, Connecticut, New York and South Australia. In Tennessee, the commission was abolished but the guidelines remained.
N. Hutton supra note 56, p. 138.
Mr Bleijie, Attorney-General, Queensland Parliament Hansard, 30 May, 2012, p 277.
Offices such as the Workplace Rights Ombudsman and the Workplace Rights Office (Mr Bleijie, Attorney-General, Queensland Parliament Hansard, 20 June 2012, p 816). That government also abolished the Drug Court and an Indigenous Court.
Ms Palaszczuk, Premier and Minister for the Arts, Queensland Parliament Hansard, 15 March 2016, p. 685.
Or perhaps public divisions as was the case in New York, where the legislature created a commission but invested no political capital or intellectual resources in it (R. Weisberg, “The Sentencing Commission Model, 1970s to Present” in J. Petersilia and K. Reitz (eds), The Oxford Handbook of Sentencing and Corrections (New York: Oxford University Press, 2012), p. 304.
W.H. Jr. Pryor supra note 49, p. 955; R.E. Barkow and K.M. O’Neil supra note 9, p. 2015.
See Dolowitz and Marsh supra note 25, p. 353 for discussion of factors that affect policy transfer.
The South Australia Sentencing Advisory Council, created in 2012 ceased to exist in 2018. Some of the few references it received did not strictly relate to sentencing.
See M. Tonry supra note 52, p. 25.
For example, see R. Weisberg, “How Sentencing Commissions Turned Out To Be a Good Idea” (2008) 12 Berkeley Journal of Criminal Law 179-230.
M. Mintrom supra note 116, p. 307.
R.S. Frase, “State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues” (2005) 105 Columbia Law Review 1190–1232, p. 1203.
R. Hester supra note 156, pp. 180-181.
Cited in K. Reitz supra note 121, p. 201.
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The authors thank Michael Tonry, Richard Frase, and the journal’s reviewers for comments on previous drafts of this essay.
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*Arie Freiberg, Faculty of Law, Monash University, Melbourne, Australia. E-mail: Arie.freiberg@monash.edu; Julian V. Roberts, Faculty of Law, University of Oxford, St Cross Building, Oxford, UK. E-mail: julian.roberts@crim.ox.ac.uk.
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Freiberg, A., Roberts, J.V. Sentencing Commissions and Guidelines: A Case Study in Policy Transfer. Crim Law Forum 34, 87–129 (2023). https://doi.org/10.1007/s10609-022-09447-3
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DOI: https://doi.org/10.1007/s10609-022-09447-3