The Role of Previous Convictions at sentencing Cardiff, November 27 Julian Roberts, Faculty of Law University of Oxford

First, a little Shakespeare… “Men’s evil manners live in brass; their virtues we write in water” “Men’s evil manners live in brass; their virtues we write in water” “They need to look at what the person’s achieved as well as the bad things he’s done – good things are never recognized in court.” “They need to look at what the person’s achieved as well as the bad things he’s done – good things are never recognized in court.” (Interview with recidivist offender)

What I want to do Describe the ways that competing sentencing theories react to previous convictions; Describe the ways that competing sentencing theories react to previous convictions; Critique the Progressive Loss of Mitigation Model Critique the Progressive Loss of Mitigation Model Review the changing role of statutory provisions regarding previous convictions in England and Wales; Review the changing role of statutory provisions regarding previous convictions in England and Wales; Consider the reactions of the criminal justice professionals, the public and offenders Consider the reactions of the criminal justice professionals, the public and offenders Propose a better way of considering previous convictions at sentencing Propose a better way of considering previous convictions at sentencing

Problems with pre cons Ever-changing statutory framework Ever-changing statutory framework Insufficient guidance from CACD or SGC/SAP Insufficient guidance from CACD or SGC/SAP Offender objections to practice Offender objections to practice Gap between theory and practice Gap between theory and practice

Sentencing Statutes around the world: 2 Sentencing Universals? Sentence severity is proportionate to the seriousness of offence and offender’s level of culpability; Sentence severity is proportionate to the seriousness of offence and offender’s level of culpability; Sentence severity is proportionate to the seriousness of the offender’s criminal record Sentence severity is proportionate to the seriousness of the offender’s criminal record

Utilitarian Sentencing Repeat offenders represent a higher risk to re- offend, and are less likely to be rehabilitated Repeat offenders represent a higher risk to re- offend, and are less likely to be rehabilitated Known as cumulative sentencing Known as cumulative sentencing Problems? Problems? -Categorical not individual ascriptions of risk; -an over-prediction of recidivism; -mechanical approach to pre cons -little evidence that CS works

Retributive Theories and Previous Convictions Consensus on question of pre cons Consensus on question of pre cons Two components of a retributive sanction: Two components of a retributive sanction: (a) crime seriousness and (b) offender culpability; (a) crime seriousness and (b) offender culpability; all legitimate sentencing factors must be related to (a) or (b) all legitimate sentencing factors must be related to (a) or (b) Sentencing process must not punish on character Sentencing process must not punish on character All retributive theorists now reject the position that repeat offenders are more culpable – more later; All retributive theorists now reject the position that repeat offenders are more culpable – more later;

Two Competing Retributive Perspectives 1. “flat rate” model : 1. “flat rate” model : no room to consider pre cons (all offenders sentenced the same) no room to consider pre cons (all offenders sentenced the same)and 2. Progressive Loss of Mitigation: Discount for first offenders (and 2 nd, 3 rd, 4th ?) For the vast majority of offenders the two perspectives respond the same: pre cons carry no weight in aggravation. How well do these models reflect professional and community views? How well do these models reflect professional and community views?

Problems with Progressive Loss of Mitigation (First offender discount) Theoretically unrelated to retributivist principles (first offenders not less culpable); Theoretically unrelated to retributivist principles (first offenders not less culpable); Is it not an example of punishing character? Is it not an example of punishing character? What is the dimension along which offenders are arrayed according to their previous convictions? What is the dimension along which offenders are arrayed according to their previous convictions? Implausible for first offenders convicted of serious crimes; Implausible for first offenders convicted of serious crimes; Never seen in practice (sentencing statistics) Never seen in practice (sentencing statistics)

Percentage of Offenders Imprisoned by Number of Prior Convictions, New South Wales Number of Prior Convictions Percentage Imprisoned

Evolving Role of Pre Cons in England and Wales: from “must not”, to “may”, to “must” 3 key statutes: 1991 Criminal Justice Act 1991 Criminal Justice Act Amendments in 1993 CJA Amendments in 1993 CJA Criminal Justice Act 2003 Criminal Justice Act 2003

Criminal Justice Act 1991 s.29(1) An offence shall not be regarded as more serious… by reason of any previous convictions of the offender or any failure of his to respond to previous sentences. s.29(1) An offence shall not be regarded as more serious… by reason of any previous convictions of the offender or any failure of his to respond to previous sentences.

Criminal Justice Act 1993 s.29(1) as amended: In considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences.

Criminal Justice Act 2003 In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular to – (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

Attitudes of Criminal Justice Professionals Toward the Recidivist Sentencing Premium, Britain % of respondents supporting a recidivist sentencing premium Police Officers94% Prosecutors90% Magistrates83% Judges78% Prison officers78% Justices’ clerks72% Barristers63% Solicitors58% Probation officers51%

Public reaction to pre cons People ascribe higher ratings of blameworthiness to recidivists – independent of risk of re-offending; People ascribe higher ratings of blameworthiness to recidivists – independent of risk of re-offending; Regard a wide range of circumstances to be relevant to blameworthiness; e.g., remorse; apologies; Regard a wide range of circumstances to be relevant to blameworthiness; e.g., remorse; apologies; Assign higher punishments to reflect pre cons, but within proportional limits Assign higher punishments to reflect pre cons, but within proportional limits MORI survey 2007 MORI survey 2007

First offender Twopriors Five Fivepriors CrimeSeriousness (10 point scale) Risk of re- offending Sentence length (in months)

Offender Views Acceptance that pre cons are important factor at sentencing; Acceptance that pre cons are important factor at sentencing; Strong consensus that the RSP is a legitimate sentencing practice; Strong consensus that the RSP is a legitimate sentencing practice; Justifications: the offender has not “learned his lesson”; Justifications: the offender has not “learned his lesson”; But…manner of application criticized: too mechanical; no credit for efforts to desist But…manner of application criticized: too mechanical; no credit for efforts to desist

1 unrelated prior 3 priors, two related 3 Priors, all related Estimated Sentence (in months) FavoredSentence

Determinants of a proportional sanction: crime seriousness and culpability Crime seriousness unaffected by pre cons – what about culpability? Crime seriousness unaffected by pre cons – what about culpability? Sentencing statutes make reference to elevated culpability of offender Sentencing statutes make reference to elevated culpability of offender Blameworthiness: measured by distance of departure from acceptable conduct Blameworthiness: measured by distance of departure from acceptable conduct

Explaining the divergence between theory and practice/opinion Retributivist analysis tightly focused on the act: narrow “band width” of blameworthiness; Retributivist analysis tightly focused on the act: narrow “band width” of blameworthiness; Public/ CJS professionals have a broader model; Public/ CJS professionals have a broader model; Need to consider the context (i.e., actions before and after crime): Need to consider the context (i.e., actions before and after crime): Premeditation Premeditation Remorse/ apologies: public and sentencers’ reaction to the remorseful offender (including rape and capital cases) Remorse/ apologies: public and sentencers’ reaction to the remorseful offender (including rape and capital cases)

Considering the Offender’s perspective: (back to Shakespeare) Q: Are we back to punishing “character”? Q: Are we back to punishing “character”? A: No, only certain conduct should be credited – not a question of moral accounting (good war record etc.); A: No, only certain conduct should be credited – not a question of moral accounting (good war record etc.); What kind of conduct? Efforts to desist (even if ultimately unsuccessful) should wash out the repeat offending premium; What kind of conduct? Efforts to desist (even if ultimately unsuccessful) should wash out the repeat offending premium; Need to consider the role of the state: was the offender offered help to desist? Did the state impede desistance or facilitate re-offending? Need to consider the role of the state: was the offender offered help to desist? Did the state impede desistance or facilitate re-offending?

Summary Flat line and PLM models at odds with community sentiment, professional opinion and judicial practice; Flat line and PLM models at odds with community sentiment, professional opinion and judicial practice; Relevant pre cons must increase blameworthiness and hence severity of sentence but………. Relevant pre cons must increase blameworthiness and hence severity of sentence but………. A limit should be placed on the recidivist premium – to protect proportionality; A limit should be placed on the recidivist premium – to protect proportionality; Offenders should be able to rebut the presumption of enhanced culpability; Offenders should be able to rebut the presumption of enhanced culpability;

Finally… Many thanks for your time and attention! Many thanks for your time and attention!