We need to improve public confidence in a decision-making process that too often appears shadowy and erratic, writes Ian O'Donnell.
Tonight Prime Time investigates sentencing. Given the level of public concern about sentences that appear excessively lenient, or unconscionably harsh, it is a programme that is likely to excite debate.
Many people will recall the handbag thief in Dublin who was jailed for nine years (later reduced to six on appeal) and the purchasers of child pornography who have walked free from court.
If imprisonment is to be an effective deterrent we need to know the conditions under which it will be imposed. There are two crucial questions. Why punish? How much is enough?
The specific focus of the programme is the District Court. Most criminal business starts and finishes here and the maximum penalty that can be imposed is 12 months incarceration on a single charge. At present there is no requirement for judges to explain their choice of sanction and many do not.
Such reticence is difficult to justify. There is a powerful argument that reasons should always be given either when custody is selected or when there is a departure from the norm.
The first scenario presupposes the availability of a meaningful array of non-custodial sanctions. This would force the consideration and reasoned elimination of each alternative measure before a prison sentence was imposed. It is possible that such a process of deliberation would, of itself, reduce the use of imprisonment.
To enable judges choose from the full menu of punishments and rehabilitative options would require a substantial diversion of resources from prisons to the Probation and Welfare Service. The lack of a suitable alternative is never an acceptable reason to deprive a citizen of his or her liberty. However, at present while custody is always a possibility, community service, drug treatment and other forms of supervision and support are not.
The second scenario presupposes the existence of sentencing guidelines or good quality information about how similarly situated individuals have been dealt with by other judges (or by the same judge in the past).
Any significant departure from the normal range would have to be accounted for.
Guidelines have the advantage that they can be tweaked to ensure that the number of prisoners never exceeds a predetermined limit. If the prison population is heading towards capacity, sentence ranges can be adjusted downwards. In this way judicial decisions are aligned with available resources.
However, guidelines can invoke the ire of judges who feel that their discretion is being excessively curtailed, or even annulled.
In addition they are drawn up by the legislature and are therefore vulnerable to revision - usually upwards - at times of crisis. This means that while sentences are more predictable when guidelines exist, the overall burden of punishment can become disproportionately onerous.
A more acceptable alternative may be a computer-based sentencing information system, such as have been developed in other countries in recent years. These systems collate and sort information about sentencing practice.
They are used to inform judges about the distribution of sentences and to demonstrate the relative weight given to different combinations of offence and offender characteristics. If a given sentence seems out of line with the prevailing standard this requires explanation by the judge.
Sentencing information systems have the potential to generate the data that are necessary to refine judicial discretion, explore the relative efficacy of sanctions, reduce inconsistency and improve public confidence in a decision-making process that too often appears shadowy and erratic.
The requirement to give reasons under specified circumstances such as those outlined above would also yield valuable insights into what lies behind sentence selection. At present it would seem that there is no primary rationale for punishment, and this is one reason why similar cases can result in widely different outcomes.
On some occasions judges are animated by a desire to rehabilitate the offender and they tailor the sentence accordingly. On others they are exercised by the need to send a strong deterrent message to potential offenders about the consequences of their actions.
In others again the desire is to exact retribution or to prevent crime through incapacitation.
Occasionally the sentence is designed with a view to restoring the relationship between victim and offender. Each of these competing rationales is based on a different understanding of criminal behaviour.
It would greatly aid public understanding if there was clarity about what principles are used to set limits to punishment. It is unlikely that a judicial consensus exists on this critical matter and it would take time for one to be wrought.
In this regard there is obvious scope for more extensive training of judges.
Public concerns would be alleviated if there were evidence that judges had been trained to use their discretion wisely and consistently. This in turn might protect judges from legislative attempts to impose order on their decision-making.
Dr Ian O'Donnell is deputy director, Institute of Criminology, Law Faculty, UCD