Abstract
This chapter explores the impact of technology on sentencing. How is the changing character of technology, including how it may be changing the nature of sentencing work? Is it threatening the discretion, and diminishing status of the sentencing professions. Drawing on illustrations from research on the use of information technology to aid the sentencing decision process, the chapter assesses three specific questions: (1) Are techno-rational instruments reducing sentencing discretion and professional autonomy? (2) Are sentencing technologies reducing concern with the whole individual to decontextualized collations of data ? (3) Are judges and other penal decision-makers becoming the consumers of information rather than their creators? Reporting and assessing the evidence about the use of sentencing technology, the chapter reveals that the claim that technology is diminishing sentencing discretion is based in assumed autonomous individualism.
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Notes
- 1.
For example, Sentencing in the Age of Information has been awarded prizes by the American Society of Criminology and UK Hart / Socio-Legal Studies Association Main Book Prize (2006). In his endorsement of the book, Jonathan Simon, who jointly advanced the ‘new penology’, describes the work as making ‘significant contributions to our understanding of sentencing and contemporary penality more generally.’
- 2.
I use the male gender here deliberately, as the idea of the judge as male is part of this personalised, patrician portrait.
- 3.
More recently the judiciary of the Republic of Ireland led by Justice Susan Denham took the decision to introduce an SIS. Their early and clear decision was to make it publicly accessible (O’Malley 2009, 2013, 2016). The NSW SIS is publicly available but access has been extremely limited in practice, including by the off-putting requirement to pay very high fees. In common with the SIS in the Republic of Ireland, and unlike Scotland, in New South Wales official data is relied upon, rather than the creation of its own bespoke sentencing taxonomy.
- 4.
Even as the researchers who developed the SIS, by 2006 Neil Hutton and I were later denied access to the live SIS by a subsequent Lord Justice General.
- 5.
In a private communication, one Scottish High Court judge showed me documentation evidencing that he had also proposed the idea during the 1980s but was quickly dismissed by the then Lord Justice General.
- 6.
Criticisms of the mechanical two-dimensionality of the US numerical federal guidelines are manifold and widespread (e.g. Stith and Cabranes 1998; Tonry 2016). Although a judicial bête noire, it is important to bear in mind that, internationally, the US Federal Guidelines are very much an exceptional reform, without parallel and unrepeated anywhere else (including at state-level courts in the US). Ironically, around the same time that Sentencing in the Age of Information was produced, the US Supreme Court, in a series of decisions, made clear that the status of the guidelines was advisory rather than mandatory (see Chapter 2 and for example Frase 2007; Tonry 2016).
- 7.
We argued that rather than seeing such information about sentencing as a threat, public access, appropriately managed, and accompanied by occasional reports contextualising sentencing practices could be a way of explaining sentencing practice and indeed engaging the public in a constructive dialogue (Tata and Hutton 2003). With the rise of the Scottish Sentencing Council (established in 2015) and its mandate to inform and engage with public opinion, some form of sentencing information will likely need to be collected and made publicly available.
- 8.
The principle threat was some form of Guidelines. Thus the judiciary did act in response to the perceived threat of increased external or managerial interference. My point is not that such a ‘threat’ was not perceived but that the senior judiciary in Scotland managed (at least so far) to overcome it quite easily.
- 9.
At the time, it was proposed that the SIS could be housed in a body which would have a direct interest in it, such as that responsible for judicial studies (as is the case of the SIS in New South Wales which is run by the Judicial Commission). In 2015 a Scottish Sentencing Council was established which would seem, perhaps, to be an obvious home for any future SIS.
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Tata, C. (2020). The Rise of Technology and the Demise of the Sentencing Professions?. In: Sentencing: A Social Process. Palgrave Socio-Legal Studies. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-030-01060-7_6
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