Sentencing values and sentencing structures

• Author: Tom O'Malley
• Position: Senior Lecturer in Law, NUI, Galway
• Pages: 130-155

SENTENCING VALUES

AND SENTENCING STRUCTURES

TOM O’MALLEY*

I. SENTENCING VALUES AND SENTENCING STRUCTURES

It may seem strange, even ominous, to begin a

presentation on sentencing by referring to nuclear weapons,

but I do so with a purpose. Some years ago, the General

Assembly of the United Nations sought an advisory opinion

from the World Court as to whether the use or threat of

nuclear weapons was in any circumstances permitted by

international law. By the narrowest of majorities, the Court

said that the use of such weapons would generally be

contrary to international law, but it could not reach a

conclusion about the legality of using nuclear weapons in

extreme circumstances of self-defence when the survival of a

state was at risk. In a dissenting opinion in which she

disagreed with the Court’s analysis, Judge Higgins said:

The judicial lodestar, whether in difficult

questions of interpretation of humanitarian

law, or in resolving claimed tensions between

competing norms, must be those values that

international law seeks to promote and protect.

In the present case, it is the physical survival

of peoples that we must constantly have in

view.1

This memorable statement provides a useful analytical

starting point for sentencing discourse as well. Here too, there

are several competing norms, perspectives and interests, and

here too, the lodestar must be the values animating the penal

130 Judicial Studies Institute Journal [3:1

1Advisory Opinion on the Legality of the Threat or Use of Nuclear

Weapons (1996) 35 I.L.M. 809 at 938.

* Senior Lecturer in Law, NUI, Galway.

process. Sentencing values may not be so starkly obvious as

the protection of life identified by Judge Higgins in the

Nuclear Weapons case. But that should not deter us from

seeking some consensus on the matter. What I propose are

the traditional, so-called Enlightenment values of legality,

openness, justice, equality and coherence. Critical legal

theorists might fault this approach for preferring form over

substance. A central plank of critical theory, and one of its

more valuable contributions to contemporary policy debate,

is that apparently neutral concepts such as equality before the

law, due process and proportionate punishment often serve to

mask underlying structural inequalities and social injustice.2

Rhetorical commitment to neutral, equality-based principles

tends to sustain the status quo and seldom does much to

address cycles of disadvantage. Had critical theory been able

to construct a viable alternative to present orthodoxy, an

alternative that gave heightened recognition to pervasive

power disparities, many of us would gladly embrace it. That

it has so far failed to do this should not deter us from

injecting as much substantive justice as possible into existing

liberal values.

In our present endeavour to review the jurisdiction of

the criminal courts, we must grapple with that awkward

triangular relationship between substance, procedure and

structure. Delivering justice of the highest quality possible

must be our ultimate aim; that is the main issue of substance.

The challenge is to devise procedures and structures that will

best ensure the achievement of that aim. As the history of the

common law shows, even when tempered with equity,

substantive justice can easily be trumped by procedural and

2003] Sentencing Values and Sentencing Structures 131

2 The vast literature on this topic includes Hunter, Ingleby and Johnstone,

Thinking about Law: Perspectives on the History, Philosophy and

Sociology of Law, Chapter 4; Frug, “A Critical Theory of Law” (1989) 1

Legal Education Review 43; Unger, “The Critical Legal Studies

Movement” (1983) 96 Harvard L.R. 561; Tushner, “An Essay on Rights”

(1984) Texas L.R. 1363; Kairys (ed.), The Politics of Law:A Progressive

Critique; Kennedy, “Legal Formality” (1973) 2 Journal of Legal Studies

351.