Consistency in sentencing
Author | Niamh Maguire |
Position | LLB (Trinity College Dublin), M.Sc. in Criminology and Criminal Justice (Edinburgh University), B.L., Ph.D. (Trinity College Dublin); Lecturer in Law, Waterford Institute of Technology; Research Associate School of Social Work and Social Policy, Trinity College Dublin |
Pages | 14-54 |
Judicial Studies Institute Journal [2010:2
14
CONSISTENCY IN SENTENCING
DR. NIAMH MAGUIRE*
INTRODUCTION
Ireland has an individualised system of sentencing in which
judges exercise a relatively broad sentencing discretion. Since the
foundation of the State in 1922 few attempts have been made to
change or challenge the nature of the Irish sentencing system.
This lack of reform, however, does not necessarily reflect
widespread satisfaction with the system as a whole. Indeed, a
recurrent criticism of the Irish sentencing system is that judicial
sentencing practices are widely inconsistent. In the 1990s the Law
Reform Commission carried out a detailed study and evaluation
of the sentencing system in Ireland1. In particular, the
Commission considered the fact that like cases could be treated
differently, and justifiably so, as the worst type of inconsistency
in sentencing and it concluded that “intuitively” the existence of
inconsistency in Irish sentencing practices was a certainty.2 Since
then, the issue of inconsistency in Irish sentencing practices has
also been highlighted in the media on a regular basis. Perhaps the
most notable example is the Prime Time documentary broadcast
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* LLB (Trinity College Dublin), M.Sc. in Criminology and Criminal Justice
(Edinburgh University), B.L., Ph.D. (Trinity College Dublin); Lecturer in Law,
Waterford Institute of Technology; Research Associate School of Social Work
and Social Policy, Trinity College Dublin. Contact: nmaguire@wit.ie
1 Law Reform Commission, Consultation Paper on Sentencing (March 1993);
Law Reform Commission, Report on Sentencing (LRC 53 – 1996).
2 Law Reform Commission, Consultation Paper on Sentencing (March 1993)
p. 69. In the absence of empirical evidence of inconsistency in Irish sentencing
practices, the Law Reform Commission specifically referred to a study carried
out by Palys and Divorski in Canada, in which different judges were asked to
pass sentence in the same cases and to comment on the reasons for their
conclusions. Noting that Palys and Divorski found considerable differences in
the approach of individual judges when sentencing the same case, the Law
Reform Commission concluded that: “We have every reason to believe that in
Ireland, a fortiori, considering the similarities in sentencing structure, similar
inconsistencies would be displayed here. Intuitively, the existence of
inconsistency here is a certainty”.
2010] Consistency in Sentencing 15
in 2004 that described sentencing in the District Court as a
“lottery”.3 Academic research on sentencing in Ireland has also
highlighted the issue of inconsistency in Irish sentencing
practices.4
Despite these criticisms, the wave of sentencing reform that
occurred in the 1980s and 1990s in many jurisdictions worldwide
largely by-passed Ireland. Whilst countries such as Sweden,5
Finland,6 England and Wales,7 USA,8 Canada9 and Australia10
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3 Prime Time, Prime Time Investigates The District Court, RTÉ 1, 13
December 2004.
4 See Walsh and Sexton, An Empirical Study of Community Service Orders in
Ireland (Dublin, Stationery Office, 1999). Their study on the community
service order in Ireland found considerable variations between judges both in
relation to the length of community service orders and the length of the
alternative prison sentences imposed. See also Hamilton, “Sentencing in the
District Court: ‘Here be dragons’” (2005) 15 Irish Criminal Law Journal 9.
Hamilton’s study on sentencing in the Dublin District Courts combined
observation of 365 cases over an eight-week period and qualitative interviews
with court staff and criminal solicitors. The researchers observed
inconsistencies in the sentencing of public order offences and noted that judges
do not appear to share a common rationale in relation to the purposes of
imprisonment. Further, many criminal solicitors admitted that they often
engage in “judge shopping” on behalf of their clients.
5 Jareborg, “The Swedish Sentencing Reform” in Clarkson and Morgan, (eds.),
The Politics of Sentencing Reform (Oxford University Press, 2001) p. 95;
von Hirsch, “Sentencing Reform in Sweden”, in Tonry and Hatlestad (eds.),
Sentencing Reform in Overcrowded Times: A Comparative Perspective
(Oxford University Press, 1997) p. 211.
6 Lappi-Seppälä, “Sentencing and Punishment in Finland: The Decline of the
Repressive Ideal”, in Tonry and Frase (eds.), Sentencing and Sanctions in
Western Countries (Oxford University Press, 2001) p. 92; Tornudd,
“Sentencing and Punishment in Finland”, in Tonry and Hatlestad (eds.),
Sentencing Reform in Overcrowded Times (previous note), p. 189.
7 Ashworth, “The Decline of English Sentencing and Other Stories”, in Tonry
and Frase (eds.), Sentencing and Sanctions in Western Countries, p. 62;
Ashworth, “New Sentencing Laws Take Effect in England”, in Tonry and
Hatlestad (eds.), Sentencing Reform in Overcrowded Times: A Comparative
Perspective (previous note), p. 133; Ashworth, “English Sentencing since the
Criminal Justice Act 1991”, in Tonry and Hatlestad (eds.), Sentencing Reform
in Overcrowded Times: A Comparative Perspective (previous note), p. 146.
8 For example see Frase, “Sentencing Guidelines are ‘Alive and Well’ in the
United States”, in Tonry and Hatlestad, Sentencing Reform in Overcrowded
Times: A Comparative Perspective (above, note 5), p. 12; Reitz, “The
Disassembly and Reassembly of U.S. Sentencing Practices” in Tonry and Frase
Judicial Studies Institute Journal [2010:2
16
saw the establishment of sentencing commissions, councils and
panels, charged with enhancing consistency in sentencing by,
inter alia, the introduction of various forms of sentencing
guidelines, most of the recommendations for reform made by the
Law Reform Commission in 1996 in its Report on Sentencing
aimed at addressing inconsistency in Irish sentencing practices
were largely ignored. Over a decade later, it is likely that the
concerns and criticism expressed about inconsistency in Irish
sentencing practices are equally prescient. However, it may be the
case that the failure to implement reform in Ireland represents an
opportunity rather than a loss. We are now in a position to learn
from the mistakes and benefit from the successes of other
jurisdictions that have attempted to reform sentencing in order to
increase consistency and equity in sentencing outcomes.
However, before we can even attempt to learn from these
experiences, we firstly need to fully understand how and why
inconsistency in sentencing occurs in the Irish sentencing system.
In order to come to a better understanding of why
inconsistency in sentencing occurs in Ireland, this paper presents
new findings from a qualitative research study specifically
designed to examine judicial views on consistency in sentencing,
as well as, the extent of and the reasons for inconsistency in Irish
sentencing practices.11 By way of context, this paper begins with
(eds.), Sentencing and Sanctions in Western Countries (above, note 6), p. 222.
See generally Tonry, Sentencing Matters (1st ed., Oxford University Press,
1996).
9 Daubney and Parry, “An Overview of Bill C-41 (The Sentencing Reform
Act)”, in Roberts and Cole (eds.), Making Sense of Sentencing (University of
Toronto Press, 1999) p. 31.
10 Freiberg, “Three Strikes and You’re Out – It’s Not Cricket: Colonization and
Resistance in Australian Sentencing”, in Tonry and Frase (eds.), Sentencing
and Sanctions in Western Countries (above, note 6), p. 29: Gorta, “Truth in
Sentencing in New South Wales” in Tonry and Hatlestad (eds.), Sentencing
and Reform in Overcrowded Times (above, note 5), p. 152.
11 The findings presented in this paper are based on a piece of exploratory
research on sentencing in Ireland entitled Sentencing in Ireland: An
Exploration of the Views, Rationales, and Sentencing Practices of District and
Circuit Court Judges. This research was carried out under the supervision of
Dr. Eoin O’Sullivan, at the School of Social Work and Social Policy, and was
submitted to Trinity College Dublin for the degree of Doctor of Philosophy in
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