SENTENCING COMMISSIONS AND GUIDELINES: A CASE STUDY IN POLICY TRANSFER

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. 40


I 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 Order 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 guidelines 2 for judges to follow, and (iii) mean-ingful appellate review. The issues of sentencing guidance, sentencing guidelines and sentencing commissions or councils 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. 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. 5 3 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. 4 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:

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.

II INNOVATION: SENTENCING COMMISSIONS OR COUN-CILS
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 mechanisms 6 Footnote 5 continued

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. 7 The ''unbridled'' discretion given to the courts resulted in disparities between individual judges, often based on race, gender or geography. 8  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. 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 decisionmakers. 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''. 11 The Minnesota commission subsequently provided a model for other jurisdictions. 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. 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. 14 The common law model of sentencing differed from the US. It involves the legislature prescribing maximum penalties 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. 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. 17 It was not until 1982 that a leading sentencing scholar, Andrew Ashworth, called for the creation of a sentencing council. 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. 19 Footnote 14 continued tencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013) pp. 3-5. 15 Although, increasingly over recent years, mandatory or mandatory minimum sentences. 16

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.

III 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. 23 The modern study of the diffusion of innovations is attributed to an extensively cited article by Walker in 1969. 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''. 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. 26 Stone has provided a useful summary of the main approaches to policy transfer or diffusion from which the following brief discussion draws. 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 23 Jones and Newburn, supra note 5, p. 116. 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. 28 As Shipan and Volden observe: In today's interconnected world, understanding policy diffusion is crucial to understanding policy advocacy and policy change more broadly. 29 ÔDiffusion'' 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''. 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. 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. 32 Similar pressures may lead to similar innovations or outcomes without the need to borrow ideas from other jurisdictions. 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. 34  ''modelling'' to describe ''action(s) that constitute a process of displaying, symbolically interpreting and copying conceptions of action.' 35 Models are symbolically interpreted by those who ''invent'', ''adapt'' and ''copy'' them. 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. 37 From this perspective, ideas from elsewhere can change the fundamental beliefs of decisionmakers 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 Ôuse their intellectual authority or market expertise to reinforce and legitimate certain forms of policy or normative standards as ''best practice''''. 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. 39 As Newburn notes, we need recognise that: 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. 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. 41

IV 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. 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 reha- bilitative 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. 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. 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''. 45 4.1.1 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. 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. 47 4.1.2 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. 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. 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. 50 However, prison populations were also increasing in other parts of the world. . 48

Excessive Leniency
Sentencing reform was seen by political conservatives as a way of setting and enforcing more severe sentencing standards. 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. 53 Unduly lenient sentences have been cited as specific concerns in jurisdictions considering the establishment of sentencing commissions or guidelines. 54 4.1.5 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 longterm 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''. 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); 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. 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''. 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. 59 4.1.7 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. 60 In Australia, one of reasons for the establishment of sentencing councils was the desire of governments to 56 N. Hutton, ''Institutional Mechanisms for Incorporating the Public'' in A. Freiberg  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''. 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.''. 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. 63 4.1.8 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. 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.' 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. 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. 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. 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. 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''. 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. 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. 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; 73 overcrowding in prisons; and constrain/monitor the use of correctional resources. • Membership: commissions vary in size from 7 78 to 31 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. • 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. 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. • 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. 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 78 Eg the US Sentencing Commission. 79 Eg Ohio. 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. 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, 83 Uganda; 84 Ireland, while the Tasmanian Sentencing Advisory Council drew inspiration from its near neighbor, Victoria 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. 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. 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. 87 The bill's proposer 85 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. council and one was duly created in 2015. 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. 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. 106 Commissions continued to proliferate in the twenty-first century.  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. 110 Finally, the most recent guidelines were introduced in Tanzania in 2020. 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 policies 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. 113 Policy entrepreneurs have been described as political actors 114 who attempt to transform policy ideas into policy innovations and thereby disrupt the status quo. 115 They differ from politicians, public servants or interest group leaders. 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. 117

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. 120 Other authors explicitly reflect on what, if anything, one jurisdiction can learn from another. 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. 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. 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. 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. 125 This was followed by conferences in 1998 in Minneapolis; 126 1999 and 2002 in Glasgow; 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. 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. 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. 130 Michael Tonry has published prolifically on sentencing generally, and sentencing commissions and comparative sentencing in particular. 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. 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 jurisdictions 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 1990s 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 commission 135 as did a Conservative think tank. 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. 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. 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. 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. 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. 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. 142 Despite its hegemonic role, not all of its ideas have been accepted. 143 In New Zealand, 144 South Africa, 145 Canada 146 and 141 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. Israel, 147 commissions have been seriously considered, proposed and rejected, while in Australia, the federal government and the governments of the Australian Capital Territory, 148 the Northern Territory 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. 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 hybridization 151 of sentencing commissions outside the US highlights the differences in political, cultural and institutional factors in the receiving jurisdictions. 152 It is possible reservations about American exceptionalism in penal policies are also relevant. While American ideas can be attractive as a con-cept, 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. 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. 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. 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. 156 In contrast, there is a culture or tradition of judicial independence in the UK and other common law countries 157 and in many jurisdictions where commissions and guidelines have been resisted or rejected, the judiciary has played a major role. 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. 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. 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. 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. 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. 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 factors 164 while later research provided abundant evidence of unjustifiable disparity between judges. 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. 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''. 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''. 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 164 R. E. Barkow  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. 169 It is argued there are a number of alternative means of dealing with any problems of disparity. 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 exist 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. 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. 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''. 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. 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. 176 Other factors that have limited the pressure for sentencing reform in Europe include far lower imprisonment rates generally than the US 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. 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. 179

The US federal system: counter-transference
Despite it being atypical of sentencing guideline systems in the US, 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. 181 Tonry described it as ''the most controversial and reviled sentencing reform initiative in US history''. 182 The federal model, which is iconic of the two-dimensional grid structure, 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, 184 New South Wales, 185 Victoria, 186 England and Wales, 187 Kenya, 188 Korea 189 and Ethiopia. 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' 191 while another wrote that ''the Federal Sentencing Guidelines make an easy target for criticism and an unattractive choice for present day sentencing reform''. 192

VI POLICY TRANSFER FAILURES
ÔFailure'' 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. 193 This is no longer the case, even accounting for commissions which were established but subsequently closed or changed focus or functions. 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 2006 195 ) but reestablished in 2015 with a mandate to issue guidelines. 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. 197 The Council, together with a number of other bodies, was abolished because such bodies were ''wasteful offices that are wasting money''. 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. 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 division 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. 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. 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. 203

VII CONCLUSION
In 1996, Tonry wrote that the ''sentencing commission is alive and well''. 204 More recent publications echo this conclusion. 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 juris-dictions and continually promote and define their field. 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''. 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. 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''. 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.