The Desocialization of the Courts, Sentencing Decision Support and Plea Bargaining

Abstract

This article details the authors' attempts to construct a sentencing information system for use in the County Court in the Australian state of Victoria. Particular attention is given to the idea of desocialization of the courts and methods of constructing sentencing information systems. The authors envisage a system that can assist legal aid lawyers to better advise their clients about possible sentencing outcomes as a result of either plea bargain or trial. Advisory systems in this area need to reflect the actual sentencing practice and decision making processes that judges use in reaching their sentences.

Acknowledgements

The authors wish to acknowledge the support of the Australian Research Council, JustSys Pty Ltd (http://www.justsys.com.au) and Victoria Legal Aid and would also like to thank the anonymous referees and Deborah MacFarlane for her comments and advice.

Notes

1. Also Honorary Associate, Greek Studies, La Trobe University, Melbourne, 3095, Victoria, Australia.

2. See J Barnett and P Dew ‘IT enhanced dispute resolution’ in J Zeleznikow and A Lodder (eds) Second International ODR Workshop (odrworkshop.info) Wolf Legal Publishers, Nijmegen, 2005, pp 1–10.

3. There are many forms of ADR in the criminal justice system, including victim-offender mediation, conferencing. For an excellent overview of ADR in the criminal justice system in Australia see, M Lewis and L McCrimmon ‘The role of ADR processes in the criminal justice system: a view from Australia’ paper presented at ‘Association of Law Reform Agencies of Eastern and South Africa (ALRAESA) Conference’, September 2005, Uganda. Available at http://www.doj.gov.za/alraesa/conferences/papers/ent_s3_mccrimmon.pdf (last accessed 1 February 2007).

4. Unlike the USA, not all those charged with an offence are eligible for legal aid. There are certain criteria that must be met. See R Fox and A Freiberg Sentencing: State and Federal Law in Victoria, Oxford University Press, Melbourne, 1999, pp 97–98.

5. K Franko Aas Sentencing in the Age of Information: From Faust to Macintosh The Glasshouse Press, London, 2005, p 110.

6. D Black Sociological Justice Oxford University Press, Oxford, 1989, pp 64–72.

7. This has been the subject of numerous studies over many years. A good overview of sentencing guidelines in the USA and other parts of the world can be found in a report by the Scottish Sentencing Commission ‘Sentencing guidelines around the world’, 2006. Available at http://www.scottishsentencingcommission.gov.uk/docs/consistency/Sentencing%20Guidelines%20Around%20the%20World.pdf (last accessed 1 February 2007).

8. Fox and Freiberg, op cit, note 4, pp 10–12.

9. A Ashworth Sentencing and Criminal Justice Butterworths, London, 1995.

10. M Bagaric and R Edney ‘The Sentencing Advisory Commission and the hope of smarter sentencing’ Current Issues in Criminal Justice Vol 16, pp 125–139, 2004.

11. A Freiberg ‘Sentencing: trends and issues’ Reform Vol 86, pp 7–10, 2005. Freiberg is more of a realist rather than an idealist and contends that sentencing problems can never be solved only managed. The lack of information available in the sentencing process has also been discussed at great length as far back as 1953 in most influential paper, N Morris ‘Sentencing convicted criminals’ The Australian Law Journal Vol 27, pp 186–208, 1953; and most recently by M L Miller ‘A map of sentencing and a compass for judges: sentencing information systems, transparency, and the next generation of reform’ Columbia Law Review Vol 105, pp 1351–1395, 2005.

12. The Australian Law Reform Commission ‘Sentencing Federal offenders’, Issues Paper 29, Australian Government Publishing Service, Canberra, 2005. Available at http://www.austlii.edu.au/au/other/alrc/publications/issues/29/ (last accessed 1 February 2007). The same claims, however, are made of sentencing regimes that have guideline sentencing structures in place, see E Luna ‘Misguided guidelines: a critique of Federal sentencing’ Policy Analysis No 458, Cato Institute, Washington DC, 2002. Available at http://www.cato.org/pubs/pas/pa458.pdf (last accessed 1 February 2007).

13. A Ashworth ‘Four techniques for reducing sentencing disparity’ in A von Hirsch and A Ashworth (eds) Principled Sentencing: Readings on Theory and Policy Hart Publishing, Oxford, 1998, pp 227–239.

14. The Australian Law Reform Commission, op cit, note 12, p 185. It is indicated that these are the findings of other Australian law reform sentencing studies, Australian Law Reform Commission ‘Sentencing’ Report No 44, Australian Government Publishing Service, Canberra, 1988, p 17. Available at http://www.austlii.edu.au/au/other/alrc/publications/reports/44/ (last accessed 1 February 2007); New South Wales Law Reform Commission ‘Sentencing’ Report 79, 1996, para 1.7. Available at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R79TOC (last accessed 1 February 2007).

15. Freiberg, op cit, note 11.

16. A Lovegrove Judicial Decision Making, Sentencing Policy, and Numerical Guidance Springer, New York, 1989, p 3.

17. Mandatory sentencing in Australia includes: the 1992 Western Australian ‘three strikes’ legislation for third burglary offences; New South Wales life imprisonment laws for murder and trafficking commercial quantities of heroin or cocaine; Northern Territory mandatory minimum sentences for property offences (see Australian Law Reform Commission, op cit, note 12, p 186 and Scottish Sentencing Commission, op cit, note 7). A useful discussion of mandatory sentences in Australia and the case for not making them part of the sentencing landscape can be found in N Morgan ‘Why we should not have mandatory penalties: theoretical structures and political realities’ Adelaide Law Review Vol 23, pp 141–154, 2002.

18. Judicial guideline judgements, handed down by Appeal Courts, are those according to Fox and Freiberg (op cit, note 4, p 33) that go beyond the point raised in the particular case and suggest a sentencing scale for various common forms of the category of crime before the court identifying the main aggravating and mitigating factors or indicating how particular types of sanctions are to used. There are no judicial guideline judgements in Victoria. These are widely used in the UK, see http://www.sentencing-guidelines.gov.uk/ (last accessed 1 February 2007).

19. A sentencing grid or matrix usually involves a two dimensional graph the axes of which reflect ‘offence seriousness’ and ‘prior criminal record’. The penalty level is usually determined by reference to the sentencing range to be found in the cell of the grid/matrix that corresponds to the offender's offence and their prior record. In Victoria there are no sentencing matrices or grids. The Minnesota Guidelines are the most famous example, see http://www.msgc.state.mn.us/ (last accessed 1 February 2007).

20. G Zdenkowski ‘Limiting sentencing discretion: has there been a paradigm shift?’ Current Issues in Criminal Justice Vol 12, pp 58–78, 2000.

21. Sentencing Act 1991 (Vic) s 109. Sentences are classified into nine levels of severity, each relating to a maximum penalty. For example a person guilty of armed robbery (Crimes Act 1958 (Vic) s 38) is liable to level 2 imprisonment, which corresponds to a 25-year maximum.

22. Sentencing Act 1991 (Vic) s 11. The sentencer is under a duty to make the sentence as short as the circumstances permit (Sentencing Act 1991 (Vic) s 5(3)). The non-parole period is the period of time prisoners must spend in jail before they can be considered for parole. It should not considered a minimum sentence for the offence as the judges have the discretion to vary the period of non-parole for the same offence in a different case.

23. The purposes are: (a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or (b) to deter the offender or other persons from committing offences of the same or a similar character; or (c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or (d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or (e) to protect the community from the offender; or (f) a combination of two or more of those purposes. Critics of the sentencing system consider that these sentencing purposes are not specific enough. The failure of legislature to endorse a sentencing rationale has led Ashworth (op cit, note 9, p 331) to state that for a long time there has been ‘a kind of cafeteria system, in which judges and magistrates have been encouraged to choose a rationale from several … with relatively little constraint in the choice’.

24. Bagaric and Edney, op cit, note 10, p 127.

25. Fox and Freiberg, op cit, note 4, p 29.

26. J Zeleznikow ‘Building decision support systems in discretionary legal domains’ International Review of Law, Computers and Technology Vol 14, pp 341–356, 2000.

27. See, N Cowdery ‘Creative sentencing and plea bargaining: does it happen and what are the results?’ paper presented at the LawAsia Biennial Conference: LAWASIAdownunder, 20–24 March, 2005, pp 1–10, p 2. The director of the New South Wales Department of Public Prosecutions, Nicholas Cowdery has suggested that the plea bargaining process ‘is aimed at the entry of a plea of guilty to a charge that adequately addresses the essential criminality of the conduct of the accused and that gives adequate scope for sentencing’. He characterized the plea bargaining as misleading ‘in that it suggests that a choice of plea is somehow for consideration and decision. It is not: the only plea that is being considered is a plea of guilty’. This is clearly mistaken. The defendant has the choice to not plead guilty and go to trial, whether or not the chances of a lenient of sentence are still available is another matter.

28. For an excellent discussion of ADR in the criminal justice system see, Law Reform Commission of Western Australia ‘Review of the civil and criminal and justice system consultation drafts’, Law Reform Commission of Western Australia, Perth, 1999, sec. 4.3, pp 763–792. Available at http://www.lrc.justice.wa.gov.au/RevCCJS-p92/ConDrafts/condraftsindex.htm (last accessed 1 February 2007).

29. In the lower of the Victorian courts (Magistrates' Court) around 95% of matters are disposed of by guilty plea, see Sentencing Advisory Council ‘Sentence indication and specified sentence discounts’, Discussion Paper, Melbourne, 2007, p 5. Available at http://www.sentencingcouncil.vic.gov.au/CA256F82000D281D/page/Publications-Discussion + Papers?OpenDocument&1=50-Publications∼&2=25-Discussion+Papers∼&3=∼ (last accessed 1 February 2007). In the higher courts (County and Supreme Courts) the figure runs at around 70%, see Sentencing Advisory Council, ibid, p 7.

30. S Bibas ‘Plea bargaining outside the shadow of trial’ Harvard Law Review Vol 117, pp 2463–2547, 2004.

31. W Stuntz ‘Plea bargaining and criminal law's disappearing shadow’ Harvard Law Review Vol 117, pp 2548–2568, 2004.

32. K Mack and S Roach Anleu Pleading Guilty: Issues and Practices The Australian Institute of Judicial Administration, Melbourne, 1996, pp 76–77. Mack and Anleu suggests that the term overcharging implies that there is a single reality with which to describe the criminality and that should be seen a fallacious. Overcharging has two possible meanings, due to lack of information and time pressures, charges are laid where the known facts may not support them. The second relates to the intentional inflation of charges so as to coerce a plea of guilty.

33. In one case US v Hungerford, 465 F.3d 1113 (2006), available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CA706AAB28F6B229882572050076D19A/$file/0530500.pdf?openelement (last accessed 14 October 2006), a 52 year old mentally ill mother of four children was sentenced to 159 years in jail, while her accomplice received a 30 year sentence. Judge Reinhardt one of the three appellate judges in this case wrote a stinging opinion concerning the fairness of this case. He said in part ‘it cannot be left unsaid how irrational, inhumane, and absurd the sentence in this case is, and moreover, how this particular sentence is a predictable by-product of the cruel and unjust mandatory minimum sentencing scheme adopted by Congress. This court, along with many individuals, has previously urged Congress to “reconsider its harsh scheme of mandatory minimum sentences without the possibility of parole”; now, Hungerford's case serves as yet another forceful reminder that the scheme is severely broken and badly in need of repair.’

34. Black, op cit, note 6, p 64.

35. Ibid.

36. Black, op cit, note 6, p 8.

37. Aas, op cit, note 5, p 31.

38. M Tonry Sentencing Matters, Oxford University Press, New York, 1998, p 71.

39. R Frase ‘Sentencing guidelines in Minnesota, 1978–2003’ in M Tonry (ed) Crime and Justice: A Review of Research Vol 32, University of Chicago Press, Chicago, 2005, pp 131–219.

40. Black, op cit, note 6, p 6.

41. Black, op cit, note 6, pp 70–72.

42. Black, op cit, note 6, pp 62–63. Black discusses the ‘jurisprudence’ of parking tickets and claims that parking inspectors and police officers handle illegally parked automobiles without significant variation. The owners are socially invisible and are processed in absentia. The police or parking inspectors see only automobiles and in most cases they reveal little in the way of social information. In Victoria discrimination free and discretionless sentencing exists in traffic camera infringements. The penalty (either a fine and or license suspension) is generated and sent automatically.

43. D Maynard Inside Plea Bargaining: The language of negotiation Plenum Press, New York, 1984, p 151.

44. Ashworth, op cit, note 9.

45. 1975 VR 292, p 300. This judgement has been pivotal in determining the methodology under which courts around Australia and has been upheld in a recent High Court case (Markarian v The Queen 2005 HCA 25) as the appropriate method for arrive at a sentence.

46. In Markarian v The Queen 2005 HCA 25, Justice Kirby feels that the instinctive synthesis method is flawed and that the most members of judiciary use some form of two-tiered approach but do not mention the fact. For some discussion of this case, see R Edney ‘Still plucking figures out of the air? Marakarian and the affirmation of the instinctive synthesis’ High Court Quarterly Review Vol 1, pp 50–57, 2005, and A Vincent, T Sourdin and J Zeleznikow ‘Criminal sentencing, intuition and decision support’ paper presented at the ‘International Conference on Systems, Computing Sciences and Software Engineering (SCS2 06)’, 4–14 December, forthcoming; T Sobh (ed) Innovations and advanced techniques in computer and information science and engineering, Springer, New York, 2007.

47. Bagaric and Edney, op cit, note 10, pp 125–139.

48. U Schild and R Kannai ‘Intelligent computer evaluation of offender's previous record’ Artificial Intelligence and Law Vol 13 pp 373–405, 376–378, 2005.

49. Ibid, p 377.

50. All previous attempts at building useful sentencing information systems for judges have failed. There are only two systems currently in use; the New South Wales Sentencing Information System, see E Schmatt ‘The Sentencing Information System of the Judicial Commission of New South Wales’ paper presented at ‘Seventh National Court Technology Conference’, Baltimore, 2001. Available at http://www.judcom.nsw.gov.au/about_the_commission/baltimore_speech.php (last accessed 1 February 2007). The other is the Scottish Sentencing Information System, which is not utilized as successfully as it could, see C Tata ‘“Neutrality”, “choice”, and ownership in the construction use and adaptation of judicial decision support systems’ International Journal of Law and Information Technology Vol 6, pp 143–166, 1998, and C Tata and N Hutton ‘Beyond technological quick fixes. Will the judiciary act to protect itself and shore up judicial independence? Recent experiences from Scotland’ Federal Sentencing Reporter Vol 16, pp 67–75, 2003.

51. One of the primary roles of counsel for the defendant is the delivery of a plea to the court in mitigation of sentence, see Fox and Freiberg, op cit, note 4, pp 92–94.

52. A Stranieri, J Zeleznikow and J Yearwood ‘Argumentation structures that integrate dialectical and monoletical reasoning’ Knowledge Engineering Review Vol 16, pp 331–348, 2001.

53. J Zeleznikow and G Hunter Building Intelligent Legal Information Systems: Knowledge Representation and Reasoning in Law Kluwer Academic Publishers, Dordrecht, 1984.

54. For details concerning the generic-actual argument model see, A Stranieri and J Zeleznikow Knowledge Discovery from Legal Databases, Springer, Dordrecht, 2005, pp 73–82.

55. S Toulimn The Uses of Argument Cambridge University Press, Cambridge, 1958, pp 92–107. According to Toulmin, an argument is made up of a combination of five components: a claim, some data (grounds), a warrant, some backing and a qualifier. Claims are ideas that the arguer would like the audience to believe. The data lends support to the claim and makes it more likely that the audience will believe it. The warrant, on the other hand, is the logic of the argument: the rules of inference that lead the claimant to conclude the claim, given one ground or a set of grounds. Backings usually give reasons why the audience should believe the warrant. Modal qualifiers modify the claim by indicating a degree of reliance on, or scope of generalization of, the claim, given the grounds, warrants and backing available. Rebuttals are the possible exceptions to the conditions under which a claim holds (see Figure 7).

56. Aas, op cit, note 5, p 79.

57. The program is available for download at http://www.justsys.com.au (last accessed 1 February 2007).

58. For an excellent discussion on the lack of sentencing data collected in many jurisdiction, see M Miller and R Wright ‘Knowledge “the wisdom we have lost”: sentencing information and its uses’ Stanford Law Review Vol 58, pp 361–380, 2005.

59. See for example R v Cuffe (Unreported, VCC, Anderson J, 18/06/2004). Available at http://www.countycourt.vic.gov.au/CA256D90000479B3/Lookup/Judgments_C/$file/cuffe.pdf (last accessed 1 February 2007). This the case of Courier employed by a University to deliver deposit bags containing cash and cheques to banks. The bags were stolen on 23 occasions over a 9-month period amounting to AUS$40,945.85 cash. Prior convictions were for theft and the offender was sentenced to 40 months' imprisonment with a non-parole period of 18 months.

60. N Hutton ‘Sentencing as social practice’ in S Armstrong and L McAra (eds) Perspectives on Punishment: Contours of control, Oxford University Press, Oxford, 2006, pp 155–173, p 167, makes the useful observation that ‘judges’ public accounts of their sentencing decision making will be different from accounts which they may agree to share anonymously with a researcher and again from accounts which they may share with their colleagues in private'.

61. D Rhodes Access to Justice Oxford University Press, New York, 2004, p 81.

62. J Zeleznikow ‘Using web-based legal decision support systems to improve access to justice’ Information and Communications Technology Law Vol 11, pp 15–33, 2002.

63. A Lodder and J Zeleznikow ‘Developing an online dispute resolution environment: dialogue tools and negotiation systems in a three step model’ The Harvard Negotiation Law Review Vol 10, pp 287–338, 2005.

64. Hutton, op cit, note 59, p 161.

Additional information

Notes on contributors

John Zeleznikow

2