Restorative Justice and the Problem of Incoherence in Sentencing

Abstract

The decision-making process in current sentencing practice is incoherent due to the arbitrary way in which different purposes of sentencing are selected. I focus on England and Wales, where judges choose between five purposes of sentencing, based on conflicting philosophies of punishment. Judges can choose to be more retributive or utilitarian, with no particular process in place for how this decision should be made. The choice affects the resulting sentence, particularly where it is a borderline case for a custodial or non-custodial sentence. This arbitrariness is problematic, as sentencing is one of the most intrusive powers of the state; such decisions should be made in a clear and coherent way. I propose a process-based model of restorative justice as a way of improving coherence in sentencing. The process of stakeholders coming together to decide what should happen following an offence can reconnect the philosophies of punishment to particular and relevant individuals. This is more coherent, as there is a clear reason why these people are making the decision about which purpose of sentencing to prefer: they are most closely connected to, and most affected by, the offence. This decision is also based on better knowledge about what happened and using a better process for developing moral ideas about what should happen, through mediated discussion. The outcome, or sentence reached, will be the optimal expression of the preferred purpose of sentencing held by the stakeholders.