PRINCIPLES OF SENTENCING: TOWARDS A EUROPEAN CONVERSATION

Paper delivered at Conference on “The Limits of the Criminal Law” at LeidenUniversity, January 23, 2008 and subsequently published in Cupido (ed), Limits of Criminal Law (Nijmegen, 2008).[1]

Tom O’Malley

Senior Lecturer in Law

NationalUniversity of IrelandGalway

First, I would like to extend my warmest congratulations to the students of LeidenLawSchool for having organised this conference. Thanks to their vision and energy, representatives from several European countries have gathered in this historic venue to discuss some key aspects of criminal law and criminal procedure. More often than not, we think of European law solely in terms of European Union law, the jurisprudence of the European Court of Human Rights or both. Needless to say, the study of European law even in this limited sense is of the highest importance given its impact on our national legal systems and our daily lives. However, growing levels of legal and political integration now demand that we broaden our vision of European law to encompass the domestic legal systems of individual European states. Some work has already begun in this regard,[2] but it is only on rare occasions such as this that we can engage in a meaningful exchange of ideas and information on areas of common concern. Criminal justice is a most appropriate and worthy topic with which to begin.

In times past, sentencing wouldnot have featured very prominently at a conference of this kind. Back in 1965 when Sir Rupert Cross decided to devote his inaugural lecture as Vinerian Professor of Law at Oxford University to the topic of “Paradoxes in Prison Sentences”[3] he felt constrained to begin with a rather lengthy explanation as to why an academic lawyermight choose such a topic. He referred, for example, to a recent government report[4] which had remarked that the growth of knowledge about sentencing might one day necessitate a separate textbook on the topic. In fact, he himself would soon fulfil the demand with a book that ran to several editions.[5] In 1970 David Thomas of Cambridge University produced the first edition of his pioneering work, Principles of Sentencing[6], which paved the way for a great deal of other scholarship. Today, in England and elsewhere, there are numerous books and even some journals devoted to sentencing and penal policy.[7] The various sentencing reform movements in the United States since the mid-1980s have turned sentencing into something of an academic growth industry over there.

The study of sentencing is important for several reasons. In those jurisdictions which permit guilty pleas, sentencing is often all that matters. Once a person pleads guilty to an offence, no matter how serious, all that remains to be done is to select sentence. A case which might have occupied several days or weeks had it gone to trial can be disposed of in a few hours (or sometimes a few minutes) in the event of a guilty plea.[8] Even international criminal tribunals found it necessary to accept guilty pleas, if only in the interests of efficiency.[9]Secondly, it seems clear that in many Western jurisdictions punishment is getting increasingly harsh. Custodial sentences are generally becoming longer and more frequent, prison populations are growing and popular sentiment seems broadly supportive of these trends. This is particularly true of the United States where scholars have struggled to understand the apparently incessant growth of punitive attitudes and policies. Garland’s Culture of Control[10] is perhaps the best known of these efforts although Whitman’s Harsh Justice[11]has a more thoughtful exploration of the cultural factors that may explain recent divergences between American and European criminal justice policies. But perhaps the most fundamental reason for devoting attention to sentencing is that, irrespective of procedural and policy differences among the various European states, sentencing practices affect a great many of our citizens in profound ways. Rights to liberty, property and freedom of choice are among the more treasured valuesof Western democracies, and criminal punishment almost invariably restricts or removes the enjoyment of at least one of these rights. This is not to deny a state’s entitlement to punish criminal offenders. But it should remind us that respect for fundamental rights demands that penal measures should be grounded on rational policies and implemented in accordance with coherent principles.[12]

There are, however, certain other factors which underscore the importance of studying sentencing from a comparative perspective, and particularly within a European context. When legislators, lawyers and judges in English-speaking jurisdictions seek inspiration from elsewhere, they tend to confine their research to the laws and practices of other common-law (and almost invariably English-speaking) jurisdictions. Irish lawyers, for example, are far more likely to look to England and Wales, Australia, New Zealand, the United States or Canada than to any of the continental European jurisdictions. To use a phrase that has gained some currency in Ireland, they often feel closer to Boston than to Berlin.[13] The same indeed is true, mutatis mutandis, of lawyers in the other jurisdictions just mentioned. There are, of course, some distinguished exceptions to this trend and it so happens that this country, The Netherlands, has attracted the attention of some leading Anglo-American scholars. One thinks, for example, of David Downes’classic study, Contrasts in Tolerance,[14] which compared the English and Dutch post-war penal systems and, more recently, the collection of essays edited by Michael Tonry and Catrien Bijleveld, Crime and Justice in The Netherlands.[15]

But European lawyers must now pay greater attention to the sentencing policies and practices of their neighbouring countries. Ever since the Treaty of the European Union[16] introduced the so-called third pillar covering justice and home affairs, the criminal justice systems of most European countries have been influenced to some degree by harmonising and approximating measures promoted by various European institutions.[17] This process was further facilitated by the introduction, in the Treaty of Amsterdam, of a new legal instrument, the framework decision, to facilitate the approximation of laws and regulations in member states.[18]Take for example the European Arrest Warrant, originally introduced by way of framework decision, which facilitates the swift rendition of criminal suspects from one participating country to another, thereby replacing extradition.[19] The Commission of the European Communities has acknowledged that this system has been made possible “by a high level of mutual trust and cooperation between countries who share the same highly demanding conception of the rule of law.”[20]Trust is central to the entire enterprise of promoting cooperation among the criminal justice agencies of European states and the approximation of their criminal laws. European documentation on such measures routinely refers to mutual recognition as “the cornerstone of legal cooperation between European countries”. This will become even more apparent if full effect is given to certain measures envisaged by the Lisbon Treaty.[21] When adjudicating upon a rendition application, the authorities of the requested state must be in a position to trust absolutely the justice and integrity the requesting state’s criminal justice system. Sentencing policies and practices must surely be of central concern in this regard. The confidence which one state feels in collaborating with another depends to a considerable extent on the justice and humanity of the sentencing and penal systems of that other. This is not to deny the importance of other aspects of criminal procedure, such those relating to bail, the disclosure of evidence, legal representation and legal aid, adjudication by an impartial tribunal and other rights protected by the European Convention on Human Rights.[22]The relevance of sentencing law to rendition and extradition proceedings is well illustrated by an Irish High Court decision in 2006 to refuse the extradition of a 60-year-old married couple to the State of Illinois where they were wanted on a charge of aggravated kidnapping. Some years earlier they had taken their daughter’s young son back to Ireland from the United States, in apparent violation of American law. By the time the extradition application came on for hearing, the child had been returned to the United States and relations between the couple and their daughter had improved. In fact, she had sought to have the charges against them dropped. If convicted on the kidnapping charge in the United States, they would have faced a minimum of six years’ imprisonment and a maximum of 30 years. The High Court said that sentencing was part of the trial process and the existence of a mandatory minimum sentence was an essential factor in evaluating trial fairness. Since the right to a fair trial is of the highest importance in the hierarchy of rights protected by the Constitution of Ireland, it would be wrong to expose the people in question to a sentence which appeared in the circumstances manifestly disproportionate to the alleged offence.[23]For this reason alone, extradition was refused.

Harmonising measures have also been adopted in relation to cross-border policing and the sharing of police intelligence. The Lisbon Treaty, now open for ratification by all member states of the Union,has a number of important criminal justice provisions. It provides, for example, that the Union shall establish police co-operation involving all states[24] and also for the establishment by directive of minimum rules governing the definitions of criminal offences and sanctions in relation to particularly serious crimes with a cross-border dimension.[25] While the offences in question are limited in number, they are quite important and are likely to be prosecuted with increasing frequency. They include money laundering, drug trafficking, sexual exploitation of women and children, computer crime and organised crime.[26] Other notable measures recently adopted at European level include the Convention on Mutual Assistance in Criminal Matters,[27] the Council Framework Decision on the Mutual Recognition of Financial Penalties,[28] the Council Framework Decision on Combatting Trafficking in Human Beings[29] and the proposed European Evidence Warrant.[30]

One of the most significant developments in the field of international law in recent times has been the establishment of the international criminal tribunals and, in particular, the establishment of an International Criminal Court (ICC) under the terms of the Rome Statute adopted in 1998 and in force since 2002. International criminal tribunals were established by the U.N. Security Council in the early 1990s in respect of Rwanda and the former Yugoslavia (known respectively as ICTR and ICTY).[31] The sentencing practices of these tribunals have attracted a good deal of attention, as will those of the ICC itself once it has produced a reasonable amount of case law.[32] As in domestic systems, the moral justification for punishment by international criminal tribunals has been the subject of intense debate. It has been argued for example that the extreme gravity of the offences committed by some of those appearing before international tribunals render the traditional purposes of punishment such as retribution and deterrence of limited relevance.[33]It may well be that something akin to the moral education theory of punishment once put forward by Hampton[34] may provide one of the more plausible justifications for the imposition of punishment in response to particularly egregious crimes committed in deeply divided societies characterised by mutual distrust, hatred and often, by a desire to eradicate opposing ethnic groups. The Statute of the International Criminal Court provides that in determining sentence, account shall be taken of such factors as the gravity of the offence and the individual circumstances of the convicted person,[35] a precept which points towards proportionality as a guiding doctrine. The court may well be disposed to look towards the principles and practices followed by states parties in identifying relevant factors and the weight to be attributed to them. Naturally, it will look far beyond Europe for that purpose but, once again, it seems only right that we should be able to point to any emerging consensus on these matters within Europe itself. This is yet another argument for comparative research on European sentencing systems.

THE EUROPEAN HERITAGE

The present hegemony of Anglo-American sentencing scholarship should not obscure the European roots of many fundamental ideas and dilemmas connected with state punishment. Plato, for example, touched upon the moral justifications for criminal punishment in a number of his dialogues but it was in his last work, The Laws, that he had to address the practicalities of the matter most directly. In his best-known work, The Republic, which was essentially concerned with the nature of justice, he had envisioned a society governed by philosopher kings which he undoubtedly realised could never exist or, at least, survive in real life. The state system outlined in The Laws also had a strong utopian element but it proposed a system of government and laws with many elements recognisable to modern readers. The penal system which he elaborates in some detail in The Laws is often said to be the least satisfactory element of the work.[36] In particular, the system of punishment for certain serious offences outlined in Book 9, which may be treated in some respects as the earliest recorded system of sentencing guidelines, seems to sit uneasily with certain tenets of the moral psychology which he had earlier outlined and which suggested, among other things, that nobody commits an injustice (i.e. commits a crime) voluntarily.[37] Yet it is this internal tension which gives the work its modern appeal. There are indeed contradictions in Plato’s approach, but that is an inherent obstacle facing anyone striving to devise a coherent punishment system. Today, for example, we want rehabilitation and treatment for certain offenders, but we also want public protection and, increasingly, condign punishment for criminal behaviour. Overall, however, the system of punishment outlined in The Laws is strongly motivated by utilitarian and reformative considerations, a feature which led Saunders to describe it as a “striking anticipation of certain modern views.”[38]

While it may have been something of an exaggeration for Alfred North Whiteheadtothat the European philosophical tradition amounts to no more than a series of footnotes to Plato,[39] it must be acknowledged that many of the more intractable elements of punishment theory are raised, if not always satisfactorily addressed, in the Platonic corpus. Later during the Roman republic, we find Cicero advocating the principle that punishment should be proportionate to the crime,[40] a sentiment we find re-echoed again by Enlightenment thinkers during the 18th Century. Beccaria’s Dei delitte e delle pene (Of Crimes and Punishments), published in 1764, exposed the cruelty and pointlessness of many of the penal practices of the time and, though essentially utilitarian in outlook, also recommended proportionate sanctions. At one point in his short treatise, Beccaria writes:

“Punishments, therefore and the methods of inflicting them, should be chosen in due proportion to the crime so as to make the most efficacious and lasting impression on the minds of men, and the lead painful impression on the body of the criminal.”[41]

Incidentally, this passage also shows that proportionality is not necessarily tied to the notion of retribution or just deserts.[42] Other leading European thinkers from this era who made a lasting contribution to thinking on punishment and penal policy include Kant, a German philosopher, born in the Prussian city of Königsberg, now famous for his formulation of the lex talionis, the idea that punishment should where possible be equal to the crime,[43] and Bentham, an English philosopher most notable for his utilitarian ideas.[44] I mention these ancient and modern thinkers simply to illustrate the point the breadth and significance of the European philosophical heritage in relation to punishment theory. Given the general emphasis on proportionality, it is little wonder that the Charter of Fundamental Rights of the European Union provides: “The severity of penalties must not be disproportionate to the criminal offence”.[45]

THE POSSIBILITY OF COMMON VALUES AND PRINCIPLES

Sentencing laws and practices are shaped by many factors peculiar to the country in which they operate. They cannot be understood without reference to political, legal and cultural traditions, historical experience and current political priorities.[46] The precise division of sentencing powers among the various branches of government will also vary in accordance with constitutional traditions and principles. It would therefore be entirely unrealistic to suggest the replacement of individual state sentencing systems with a common European model, not that such a move would be even remotely politically feasible. What may however be possible, and indeed desirable in light of the levels of trust now being demanded by growing European co-operation in other spheres of criminal justice, is some degree of consensus on the fundamental values and principles that should animate our various sentencing systems. However modest this goal may first appear, the obstacles in the path of achieving it should not be underestimated. One need only consider the enduring difficulty in achieving consensus, even within individual states, on the underlying purpose of punishment and how support for some specific purpose such as retribution or deterrence periodically grows only to recede again over time. From a practical perspective, one of the most important issues is the extent to which sentences are individualised. This involves an investigation of the strength of official commitment towards allowing or requiring trial courts to craft sentences which reflect the particular circumstances of the offence and the offender. Among the alternatives would be a more actuarial approach which might favour the selection of sentence in accordance with the category into which the offence or the offender happens to fall.[47] Strong moral arguments exist for the adoption of an individualised approach, the most compelling being the Kantian idea (another element of the European heritage) that human beings should be treated as ends in themselves rather than as means.